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GARNISHMENT QUESTIONS • The Garnishment Chapter of the Code was completely rewritten and re-rationalized. While there have been many changes, the Legislature resisted making changes beyond those required by Strickland. • The effective date of the statute is May 12, 2016. Garnishment Time Periods OCGA §18-4-4(c)(1)- • A continuing garnishment, shall include the next 179 days; • Garnishments, other than a continuing garnishment or continuing garnishment for support, served on a financial institution, shall include the next 5 days; • A continuing garnishment for support, shall remain for so long as the defendant is employed by the garnishee and shall not terminate until the original arrearage is retired; and • All other garnishments, shall include the next 29 days. • All occurrences of “15 days” to perform some act in the Code have been changed to 20 days. • OCGA § 18-4-16 – Plaintiff has 20 days to traverse Garnishee’s answer after service • OCGA § 18-4-13 – even if no service, Plaintiff has 20 days from actual notice of Garnishee’s answer to traverse • OCGA § 18-4-20 – property may be distributed if no traverse is filed within 20 days after Garnishee’s answer Forms • Forms are specified for all filings. • All forms have been updated and are found in OCGA §18-4-70 through 18-4-89. • The forms are mandatory. OCGA §18-4-70(a). • The format may be adjusted as long as all of the required information is provided. OCGA §18-4- 70(a). • When a plaintiff uses the incorrect form for a summons of garnishment of any type, the garnishment shall not be valid and the garnishee shall be relieved of all liability. OCGA §18-4-7(d). ---PAGE BREAK--- Garnishment on a Financial Institution • Affidavit of Garnishment. OCGA §18-4-71. • Summons of Garnishment. OCGA §18-4-76. • Attachment for Summons. OCGA §18-4-77. • Notice to Defendant of Right Against Garnishment of Money, Including Wage, and Oher Property. OCGA §18-4-82. • Defendant’s Claim Form. OCGA §18-4-82. • Plaintiff must include exemption information and claim form in the service package on the Defendant. OCGA § 18-4-8 Continuing Garnishment • Affidavit of Garnishment. OCGA §18-4-72. • Summons of Garnishment. OCGA §18-4-78. • Attachment for Summons. OCGA §18-4-79. • Notice to Defendant of Right Against Garnishment of Money, Including Wage, and Oher Property. OCGA §18-4-82. • Defendant’s Claim Form. OCGA §18-4-82. • Plaintiff must include exemption information and claim form in the service package on the Defendant. OCGA § 18-4-8 Continuing Garnishment for Support • Affidavit of Garnishment. OCGA §18-4-73. • Summons of Garnishment. OCGA §18-4-80. • Attachment for Summons. OCGA §18-4-81. • Copy of the Judgment • Notice to Defendant of Right Against Garnishment of Money, Including Wage, and Oher Property. OCGA §18-4-82. • Defendant’s Claim Form. OCGA §18-4-82. • Plaintiff must include exemption information and claim form in the service package on the Defendant. OCGA § 18-4-8 ---PAGE BREAK--- Garnishment • Affidavit of Garnishment. OCGA §18-4-71. • Summons of Garnishment. OCGA §18-4-74. • Attachment for Summons. OCGA §18-4-75. • Notice to Defendant of Right Against Garnishment of Money, Including Wage, and Oher Property. OCGA §18-4-82. • Defendant’s Claim Form. OCGA §18-4-82. • Plaintiff must include exemption information and claim form in the service package on the Defendant. OCGA § 18-4-8 Garnishment for Support • Affidavit of Garnishment. OCGA §18-4-71. • Summons of Garnishment. OCGA §18-4-74. • Attachment for Summons. OCGA §18-4-75. • Copy of the Judgment • Notice to Defendant of Right Against Garnishment of Money, Including Wage, and Oher Property. OCGA §18-4-82. • Defendant’s Claim Form. OCGA §18-4-82. • Plaintiff must include exemption information and claim form in the service package on the Defendant. OCGA § 18-4-8 Forms and Service • Plaintiff shall serve Garnishee a copy of the Affidavit, Summons of Garnishment, Notice to Defendant of Right Against Garnishment of Money Including Wages, and Other Property, and Defendant’s Claim as provided in OCGA §9-11-4 or your constable. OCGA §18-4-8(a). • Plaintiff shall send defendant a copy of the Affidavit, Summons of Garnishment, Notice to Defendant of Right Against Garnishment of Money…, and Defendant’s Claim not more than 3 days after service of summons on the garnishee by one of three ways: mail, personally, or affidavit and mail. OCGA §18-4-8(b). • While the clerk is responsible for processing service to the garnishee, the Plaintiff is responsible for perfecting service on the Defendant and filing the proof of service. OCGA §18-4-8 ---PAGE BREAK--- • The only time the clerk is involved is when the Plaintiff files an affidavit under OCGA § 18-4-8 and serves Defendant by regular mail at last known served address. • Claim forms and information must be attached both to the Plaintiff’s service package and a Financial Institution’s service copy of the answer sent to the Defendant. OCGA § 18-4-13 Answers by Garnishee • Garnishee Answer Form. OCGA §18-4-84 • Financial Institution Garnishee Answer Form. OCGA §18-4-85 • Continuing Garnishee Answer Form. OCGA §18-4-86 Garnishee Answer • Garnishee’s Answer shall be filed with the Court issuing the summons not sooner than 30 days and not later than 45 days after service. OCGA 18-4-10(b). • When Garnishee is a Financial Institution and the garnishment is not a continuing garnishment or continuing garnishment for support, the garnishee shall file the answer not sooner than five and not later than 15 days after date of service. OCGA 18-4-10(c). Garnishee • All garnishee answers must be served upon plaintiff and defendant. OCGA §18-4-13. • If garnishee fails to serve plaintiff, plaintiff shall have 20 days from time plaintiff receives actual notice to traverse the garnishee’s answers. OCGA §18-4-13(c). • Garnishee shall provide Defendant with Notice to Defendant of right Against Garnishment of Money…, and Defendant’s Claim form that is received from plaintiff by regular mail. OCGA §18- 4-13(d). Claim by Defendant • Defendant’s Claim Form. OCGA §18-4-82. • Defendant can file a claim at any time before a judgment is entered or before money or property is distributed. • Defendant shall serve copy of the Claim on Plaintiff and Garnishee. • ***CLERK SHALL transmit copy of defendant’s claim to plaintiff and garnishee. • Defendant shall serve copy of claim upon any third party that defendant claims is superior to the judgment in the garnishment. • The traverse and claim by a Defendant are consolidated into a single claim that both asserts a higher right to the funds and that the Plaintiff’s affidavit is insufficient or untrue. OCGA § 18-4- 15. ---PAGE BREAK--- • Defendant is now allowed to assert that a Third Party has a higher right to the funds than the Plaintiff. OCGA § 18-4-15(a). Defendant must serve a copy of the Claim on the third-party. Orders • Order for Hearing Form. OCGA §18-4-83. • COURT SHALL HAVE HEARING NOT MORE THAN 10 DAYS AFTER DEFENDANT’S CLAIM FILED.*** Traverse • Plaintiff’s Traverse Form. OCGA 18-4-87. • Plaintiff may file traverse within 20 days of being served with garnishee’s answer. OCGA §18-4- 16. • Order for Hearing Form. OCGA §18-4-83. Third Party Claim • Third Party Claim Form. OCGA§18-4-88. • Third Party claim can be filed at any time before judgment entered or money or property distributed. OCGA §18-4-17. • Third Party claim shall be served upon plaintiff, defendant, and garnishee. Release of Garnishment • Release of Garnishment Form. OCGA §18-4-89. NEW DUTIES OF CLERK • Clerk shall post and update exemptions as promulgated by the Attorney General and shall provide such list to individuals upon request. OCGA §18-4-6(c). • Clerk cannot distribute proceeds/property nor shall any judgment be rendered until: • 10 days have elapsed from date of plaintiff’s compliance of service; AND • if garnishee was filed: • Twenty days have elapsed from filing of answer without a claim from defendant or third party and no traverse filed by plaintiff; or • All traverses have been adjudicated and claims been adjudicated. • Clerk must transmit a copy of defendant’s claim to plaintiff and garnishee. OCGA §18-4-15(b). • Clerk must approve the affidavit by plaintiff that defendant resides outside state, can’t be found, etc. OCGA §18-4-8(b)(1)(C). ---PAGE BREAK--- • Clerk shall schedule a hearing on defendant’s claim within 10 days of filing of defendant’s claim. OCGA §18-4-15(d). This includes weekends. Default • After 45 days and no answer, Garnishee is in default. OCGA § 18-4-21. • The default may be opened as a matter of right within 15 days upon payment of costs. If it is not opened, a default judgment may be taken against Garnishee. . OCGA § 18-4-21. Default Financial Institutions • After 15 days and no answer, Garnishee is in default. OCGA § 18-4-21. • The default may be opened as a matter of right within 15 days upon payment of costs. If it is not opened, a default judgment may be taken against Garnishee. . OCGA § 18-4-21. Exception to Default • A garnishee may be relieved from liability for failure to file a garnishee answer if the plaintiff failed to provide the information required by paragraph of subsection of Code Section 18- 4-7 that would reasonably enable the garnishee to respond properly to the summons of garnishment and a good faith effort to locate the requested property was made by the garnishee based on the information provided by the plaintiff… OCGA § 18-4-23 Calculating Amounts Subject to Garnishment • The maximum part of disposable earnings for any work week subject to garnishment shall not exceed the lesser of: • 25% of the defendant’s disposable earnings for that week; or • The amount by which the defendant’s disposable earnings for that week exceed $217. • OCGA §18-4-5(a)(1). • The continuing garnishment minimum wage is capped at $217. • It will not rise even if the minimum wage rises. OCGA §18-4-5(a)(2). • This does appear to contradict with Title III of the Federal Consumer Credit Protection Act which provides an exemption as a percentage of the federal minimum wage, 25%. Federal law would preempt.