What is a garnishment?
A garnishment is one way someone with a judgment against you can collect a debt. The court directs a third party—such as your employer or your bank—to hand over your property (usually your money or wages) to a plaintiff who obtained a judgment against you.
A garnishment is not a new lawsuit
Garnishments are not new lawsuits. However, they receive new case numbers. Also, they are not filed in the county in which you live—they are filed in the county in which the property or money exists.
For example, if your bank is headquartered in Gwinnett County, but you live in DeKalb County, then a garnishment may be filed in Gwinnett County instead of DeKalb County. Similarly, if your company is based in Fulton County, but you live in Cobb County, the garnishment may be filed in Fulton County instead of DeKalb County.
How do I stop a garnishment?
A garnishment means there is an underlying judgment against you. Until you deal with that underlying judgment—either by satisfying the judgment debt or by getting the case reopened—the Plaintiff can keep filing garnishments against you. Attacking a garnishment, even if you win, will not deal with the underlying debt.
Having said that, there are ways in which you can fight back against garnishments and stop them.
The Legal Grounds to Attack and Stop a Garnishment
There are basically three grounds on which you can attack a garnishment:
- The judgment does not exist (or has been satisfied);
- The amount claimed is incorrect; and
- You were not given proper notice of the garnishment.
You cannot attack the validity of the underlying judgment in the garnishment. You must do that in the court where the judgment was made. (This is called setting aside and opening the case. Basically, it is getting a court to admit that such errors were made that the case must be reopened.)
The most common reason to attack and stop a garnishment is that you were not properly served with notice of the garnishment. The second most common reason to attack and stop a garnishment is that the amount claimed is incorrect. The least common reason to attack and stop a garnishment is that the judgment does not exist or has been satisfied. (This is because most garnishments are based on underlying judgments, whether valid or not.)
Traverses — How You Attack and Stop A Garnishment
The document you file with a court to attack and stop a garnishment is called a “Traverse.” The court where the garnishment has been filed may have form Traverses which you can fill out.
In the Traverse you must state the ground for stopping the garnishment. The three basic grounds are (1) no judgment exists (or it has been satisfied), (2) the amount listed in the garnishment is incorrect, and (3) you were not provided proper notice of the garnishment as required by law.
What is Proper Notice of a Garnishment?
O.C.G.A. § 18-4-64(a) outlines what a Plaintiff must do to provide you notice of the garnishment. Failure of the Plaintiff to meet one of these notice requirements means the court must dismiss the garnishment and release any funds collected to that point.
There are seven ways a Plaintiff may provide notice of the garnishment to you, plus a catchall.
The seven methods of service in O.C.G.A. § 18-4-64(a) are:
- By personal service like you were served with a lawsuit. This is a Sheriff’s Deputy, Marshall, or private processor coming to your door. This must be done “as soon as practicable.”
- By certified mail or statutory overnight delivery (such as FedEx overnight). Return receipt or proof of delivery is required, and this proof must be filed with the court. This must be sent to your last known address, and it must be sent between the time the garnishment was filed with the court up to no more than 3 days after your bank or employer was served with the garnishment. (If they mail it to you 4 or more days after your bank or employer were served, they missed their deadlines.)
- Personal delivery or delivery on your attorney. The person delivering it must file a certificate with the court describing the delivery.
- The fourth method concerns serving folks out of state. If they know your address then they still have to mail you notice, and this has to be done within 3 days of the garnishment being served on your bank or employer.
- You can be served by publication if you no longer live in Georgia or are otherwise concealing your location.
- If the garnishment has been filed within 60 days of the judgment, then they can send you notice through regular mail. This must be done within 3 days of the garnishment being served on your bank or your employer. The notice must be sent to the address at which you were served with the underlying lawsuit.
- They can send you notice via regular mail to your address if it is known. This notice must be sent within three days after service of the garnishment on your bank or employer.
Where do Plaintiffs Most Commonly Mess Up Notice?
Notice of the garnishment cannot be filed before the garnishment was filed. Further, it must be sent no more than 3 days after service of the garnishment on your bank or employer.
This is the most common mess up by Plaintiffs. I have seen a number of cases where a bank or employer was served with notice on, say, the 1st of the month, but notice was not sent out until the 5th of the month.
If this occurs, then you have a case and may be able to win a traverse hearing.
When should I call you or hire you?
If your garnishment is going to tie up $1,500 or more of your money, then you should call me. I will discuss your options, determine whether it may help you to hire an attorney, and try to determine whether there is a fee structure that works for both of us.
I handle Garnishment Traverses on a flat fee basis. My base rate is a flat fee of $1,000, although I will adjust that both up and down depending on the nature of the case.
So call me—we may be able to work out a payment amount or payment plan that works for you.