Garnishment

On this page, you will find all the necessary garnishment instructions and forms for the Decatur Magistrate Court in Bainbridge, Georgia.

What is Garnishment Law?

Garnishment is an action against the wages, money, or property of the defendant which are held by a third party (the “garnishee”). It is a legal process that allows a creditor (plaintiff) to collect money owed by reaching the money or property of the person owing a debt. A garnishment can only be filed after the plaintiff has a judgment against the debtor AND the valid judgment is for an amount no greater than $15,000.00 AND the garnishee (or its agent) is located in Decatur County.

Plaintiff: the person seeking to collect a judgment.

Judgment debtor: person or entity that owes money, based on a Court’s Order.

Garnishee: person or entity which holds or owes monies or property to the judgement debtor, such as the debtor’s bank or employer.

Defendant’s claim: legal response to the affidavit, stating it is incorrect or untrue. The objection can be to the amount, the underlying judgment, the action itself or other matters.

Default: A failure to perform a legal duty.

Appeal: An appeal must be filed within 10 days of the judgment by the losing party.

Types of Garnishments

Continuing Garnishments

Continuing Garnishments or wage garnishments are filed against the employer of the one owing the money and last for about 7 months, or until the debt is paid, whichever comes first. The defendant’s employer (garnishee) may be ordered by the Court to withhold up to 25% of the defendant’s “disposable income.” The employer deducts money from the defendant’s paycheck, and then delivers that money to the creditor/plaintiff.

Regular Garnishments

Regular Garnishments are a one-time action filed against the entity that has the money or property belonging to the debtor. This may be the bank, credit union, employer, or other business. This action takes the amount the creditor files for or whatever might be in the account or owed at that time. Certain funds held in a defendant’s bank account may be exempt from garnishment.

Support Garnishments

Support Garnishments apply only to court-ordered child support or alimony payments. The defendant must be at least 1 month behind in court-ordered payments before a garnishment can be filed. Up to 50% of a defendant’s disposable income can be garnished. This type of garnishment has no termination date; it lasts until a zero balance is reached, indicating that the defendant has become current on payments.

Garnishment Procedure

Step 1: File Garnishment Affidavit

The plaintiff files a “Garnishment Affidavit.” The affidavit must be based on personal knowledge and must contain a sworn statement that the plaintiff has a judgment against the named defendant. Attach a certified copy of the judgment or a copy of a valid fi. fa. Once the paperwork is complete, the plaintiff is responsible for serving the garnishment action on both the garnishee and the defendant.

Affidavit of Garnishment
Step 2: Serve the Action
Service on Garnishee:

Plaintiff must serve the garnishee personally, or by a legally authorized service substitute, requiring permission from the Court. Service must include a copy of these 4 documents:

Affidavit of Garnishment

Summons of Garnishment (filled out by the Clerk at the filing of the affidavit & certified copy of underlying judgment)

Notice to Defendant of Right Against Garnishment of Money, Including Wages and Other Property

Defendant’s Claim Form

Service on Defendant:

Plaintiff must serve the defendant with these 4 documents:

Affidavit of Garnishment

Summons of Garnishment

Notice to Defendant of Right against Garnishment of Money, Including Wages and Other Property

Defendant’s Claim Form

After May 12, 2016, service on the defendant may only be made through one of the following methods:

A. By regular mail to the defendant at the defendant’s last known address and by registered or certified or statutory overnight delivery, return receipt requested. See O.C.G.A. § 18-4-8(b)(1)(A).; or,

B. Personal service by the sheriff or other approved process service. For any of the mail options, service on the defendant must be made no later than 3 business days after service on the garnishee. Personal service of the defendant must be made within a “reasonable” period of time. A garnishment action will be dismissed if the defendant is not properly served.
Step 3: File Certificate of Service

It is the plaintiff’s responsibility to file with the Court a “Certificate of Service” form, which states that service on both the defendant and the garnishee was made in accordance with law. See O.C.G.A. § 18-4-8 and § 9-11-4 for more information regarding proper service.
Step 4: Answering a Continuing Garnishment

Garnishee’s Answer must be filed with the court issuing the summons, no sooner than 30 days and not later than 45 days after service of the summons AND it must be accompanied by the money or other property subject to garnishment. See O.C.G.A. § 18-4-10.

If a garnishee does not file an answer within 45 days, they are in default. They may be held responsible for the total amount shown in the affidavit. However, the garnishee is allowed to open the default by paying court costs within 15 days of the default. If the garnishee fails to file an answer to open the default within 60 days after the service of summons, the plaintiff can request a judgment against the garnishee. To obtain a default judgment, the plaintiff must show proof of service on both the garnishee and defendant, and must then file notice of any default judgment to the garnishee by certified mail, statutory overnight delivery, Sheriff’s service, or hand delivery.

If the garnishee seeks to modify the amount of the default, they may do so by filing a motion no later than 90 days from the date the garnishee was served with such default judgment and by paying all accrued court costs. See O.C.G.A. § 18-4-24.

If the garnishee files an answer stating that the defendant is no longer employed by the garnishee, the plaintiff cannot obtain a default judgment.
Step 5: Contesting the Garnishment
Defendant may file a claim to contest the garnishment. The claim can be filed at any time and must be based on either:

That the plaintiff does not have a judgment against the defendant

That the plaintiff’s affidavit of garnishment is untrue or legally insufficient (left out a required element, did not identify the defendant or property properly, or listed an incorrect amount on the affidavit); OR (3) the defendant’s funds are subject to 1 or more statutory exemptions.

The Claim may not be used to contest an underlying judgment or to express financial hardship. At the Claim hearing, the burden is on the defendant to prove the basis for his claim.

Plaintiff may file a claim to contest the garnishee’s answer as legally insufficient or untrue. This must be filed within 20 days after being served with the answer.

To contest or appeal the judgment, the defendant must file the appropriate motion(s) or appeal with the court that issued the judgment. If the appeal or motion to set aside or vacate was filed prior to the garnishment, the court may be required to stay or dismiss the garnishment.
Step 6: Court Review

Once the Court reviews the items submitted, the Clerk will release the funds to the Plaintiff. If issues arise during the review, the Court will identify the problem and give the party an opportunity to fix it. All defendant claims are heard within 10 days of being filed.
Step 7: Resolution

Once the debt is paid, Plaintiff must direct the clerk to cancel any Fi. Fas and order to stop the garnishment once the debt has been paid and to mark the judgment satisfied. Failing to do so could subject the plaintiff to money damages. See O.C.G.A. § 9-13-80.

Defendants filing bankruptcy must notify the court.

Once notified, the court will issue an order “staying” the case until the bankruptcy is either dismissed or discharged. The court will hold any funds paid into the court registry until the Bankruptcy Court directs the release of the funds.

When there are multiple garnishments filed against one defendant, the clerk will pay the old garnishment first. If the plaintiff can establish that they have the oldest judgment, they can challenge the order of payment.
Step 8: Distributing Funds
Plaintiff must file an Application for Disbursement of Funds and Ensure:

Twenty (20) or more days have passed since Garnishee filed its last Answer;

File proof with the Court that Garnishee and Defendant were properly served as required by law;

No claims or traverses have been filed; and

A copy of the request to disburse funds has been mailed to Defendant and Garnishee.