4 Garnishment
4. GARNISHMENT
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 which 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 in Magistrate Court if: 1) the plaintiff has a judgment against the debtor; 2) the valid judgment is for an amount no greater than $15,000.00; and 3) the garnishee (or its agent) is located in the county where the garnishment is filed.
The procedure in garnishment cases shall be uniform in all courts throughout this state that have jurisdiction to preside over garnishment proceedings. Ga. Code Ann., § 18-4-2 (a)
Note: Many of the statutes in Title 18 were revised effective January 1, 2021.
Pre-judgment Garnishments No Longer Exist. Garnishments upon tax assessments are returnable only to state or superior court [OCGA 48-3-12].
Post-judgment "Traditional" Garnishment - may be filed after money judgment has issued from court of Georgia or federal court sitting in Georgia [OCGA 18-4-2(b)].
Post-judgment Continuing Garnishment - may be filed after money judgment has issued from court of Georgia or federal court sitting in Georgia [OCGA 18-4-40 (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. Ga. Code Ann. § 18-4-7(d)
OCGA 18-4-5(c) forbids firing an employee for being garnished for any one indebtedness, no matter how many garnishments are filed with respect to that debt.
4.1 PERSONS AND PROPERTY SUBJECT TO GARNISHMENT
A. Debts : OCGA 18-4-4
B. Earnings: OCGA 18-4-5
Owed by the garnishee to the Defendant at the time of service of summons of garnishment upon the garnishee. Test is whether Defendant could recover property by direct suit against garnishee [Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981); Hiatt v. Edwards, 52 Ga.App. 152, 182 S.E. 634 (1935)].
After judgment against the insured, an insurance policy may be garnished, but insurer has the defenses it would have against the insured [Hix v. Hertz Corp. (Ga. App. #A10A0965, 11/23/2010) (beyond minimum required coverage with auto coverage) Builders Insurance v. Tenenbaum, 327 Ga. App. 204; 757 S.E.2d 669 (2014)].
C. Property or Monies Within Possession or Control - all property, money or effects of the Defendant in the possession or control of the garnishee is subject to garnishment [OCGA 18-4-4 ]. A check is an asset subject to garnishment [248 Ga. 597 , 285 SE2d 21 (1981)].
D. Collateral Securities - are not subject to garnishment if there is an amount owed on the debt for which such securities were given as collateral [OCGA 18-4-4 (b)].
E. State Salaries [OCGA 18-4-26]. Garnishment of state salaries are subject to the same limitations as garnishment of other earnings [15 USC 1673]. NOTE State Salaries: when the judgment arises out of liability incurred in the scope of the officials' or employees' governmental employment while responding to an emergency, garnishment invalid [OCGA 18- 4-26].
F. Federal Salaries - pay of federal, U.S. Postal Service, and Postal Rate Commission employees may be garnished [5 USC 5520a ]. This code section also provides for service on a federal agency Garnishee by certified mail. Neither the United States, an agency, nor any disbursing officer shall be liable with respect to any payment made from payments due or payable to an employee pursuant to legal process regular on its face, provided such payment is made in accordance with this section and the regulations issued to carry out this section. 5 U.S.C.A. § 5520a. Garnishments for support have priority under federal law pursuant to this code section.
G. Bank Accounts - Joint and under 3rd Party Names
Joint accounts - "A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions of each to the sums on deposit, unless there is clear and convincing evidence of a different intent" [OCGA 7-1-812(a); Anderson v. First Nat. Bank of Atlanta , 151 Ga. App. 573, 574, 260 S.E.2d 501, 502 (1979); Lamb v. Thalimer Enterprises, Inc. , 193 Ga. App. 70, 71, 386 S.E.2d 912, 914 (1989) .
H. Restrictions on Garnishing Earnings:
Plaintiff may serve garnishments on a defendant ’s employer or another person or company “ under periodic obligations for payment ” to the defendant . 18-4-40(a)(2021 revision)
“Earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commission, fee, bonus, tips, overtime, or severance pay, including recurring periodic payments from pensions or retirement plans, including, but not limited to, the United States Department of Veterans Affairs, Railroad Retirement Board, Keoghs, and individual retirement accounts. Ga. Code Ann. § 18-4-1(2)
“Disposable earnings” means that part of the earnings of an individual remaining after the deduction for federal income tax, state income tax, withholdings for the Federal Insurance Contributions Act (FICA), and other mandatory deductions required by law. Ga. Code Ann. § 18-4-1 (1)
Wages subject to withholding for child support, tax levies or bankruptcy orders are not considered a deduction required by law. 29 C.F.R. § 870.11
However, if these orders have priority over the creditor garnishment and are 25% o f disposable wages , then no amount can be withheld for the creditor garnishment [29CFR § 870.11(b)(2)].
***Note: O.C.G.A. 18-4-5 related to maximum part of disposable earnings subject to garnishment and adverse employment action prohibited was updated, especially as garnishments stemming from private student loans.
Pursuant to O.C.G.A. 18-4-5, in a continuing garnishment case only: Plaintiff and Defendant can agree on a lesser garnishment amount but they must execute the form in OCGA 18-4-90, file the attested form into the case, serve the Garnishee by using the constable of the magistrate court set forth in OCGA 9-11-4 or by obtaining written acknowledgement of receipt of service by Garnishee.
Garnishments for support obligations - if summons shows that it is for child support or alimony, 50% of earnings are subject to garnishment [OCGA 18-4-53( b )].
Husband's obligation to make lump-sum cash payment to wife according to divorce decree was not award of “alimony” and, thus, only 25 percent of husband's income was subject to garnishment according to statute, where divorce decree stated the lump sum was awarded to equalize the value of assets distributed between husband and wife, divorce decree contained no reference to word “alimony,” wife's present counsel stipulated that her former counsel argued during divorce hearing that appellant was not seeking alimony, but a division of property, and the first time wife characterized lump-sum award as alimony was in affidavit for continuing garnishment. Boyd v. Boyd , 191 Ga. App. 718, 382 S.E.2d 730 (1989)
4.2 GARNISHMENT EXEMPTIONS
A. There is now a nonexclusive list of exemptions maintained by the Attorney General provided for by OCGA § 18-4-6. The Georgia Department of Law's website contains a link to a.pdf document entitled “Georgia Garnishment Exemptions.” https://law.georgia.gov/ garnishment -exemption
B. The Attorney General's list of exemptions does not create exemptions. It simply provides notice of exemptions “a defendant may be allowed by law to claim.”
Smith v. Robinson , 355 Ga. App. 159, 160, 842 S.E.2d 917, 919 (2020), cert. denied (Apr. 5, 2021)
C. Pensions - funds or benefits from a pension or retirement program, until paid to or "in hands of" member or his/her beneficiary [ OCGA 18-4-6(a)(2) ; Birchfield v. Birchfield , 165 Ga. App. 101, 101, 299 S.E.2d 409, 409 (1983),
D. IRA's - can't garnish Individual Retirement Accounts except for "qualified domestic relation order" [173 Ga.App. 511, 326 SE2d 861 (1985); also see 256 Ga. 499 (1), 350 SE2d 439 (1986)]. "Qualified domestic relation order" is similar to a family support order (see 4.7) and is defined at 29 U.S.C. 1056 (d)(3).
E. ERISA - pension benefits established under ERISA (federal law which covers most pension plans) cannot be garnished except for child support or alimony; however, employee welfare benefits are subject to garnishment [256 Ga. 499 , 350 SE2d 439 (1986)]. Even for child support, ERISA pension funds may only be garnished when funds are currently due and payable to member or beneficiary and at limitations set forth under OCGA 18-4-5
F. Pensions of the following groups of people are not subject to garnishment:
1. firemen [OCGA 47-7-122];
2. teachers [OCGA 47-3-28];
3. peace officers [OCGA 47-17-103];
4. sheriffs [OCGA 47-16-122];
5. members of the General Assembly [OCGA 47-6-100];
6. probate & superior court judges [OCGA 47-14-91];
7. superior court clerks [OCGA 47-14-91];
8. state court judges and solicitors [OCGA 47-10-120];
9. district attorneys [OCGA 47-13-90]; and
10. state or local government employees under the Employees Retirement System [OCGA 47-2-332].
G. Benefits of fraternal benefit societies [OCGA 33-15-20].
H. Wages up to $2500 for deceased employees survived by a spouse or minor child [OCGA 33-7-4].
I. Wages of an involuntarily hospitalized and mentally ill person [OCGA 29-5-12].
J. Assistance to elderly, disabled or blind persons, including SSI, Social Security and VA payments [OCGA 49-4-35 , -84, -58; 42 USC 407; 38 USC 5301 (a)].
• Garnishment barred for traceable "monies" such as funds deposited in the recipient's bank account [151 Ga.App. 573, 260 SE2d 501 (1979) (social security); 155 Ga.App. 178, 270 SE2d 245 (1980); Philpott v. Essex County Welfare Bd. , 409 U.S. 413 (1973) (SSI); Porter v. Aetna Casualty & Surety Co., 370 U.S. 159 (1962) (VA...
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