By: Kyle P. Shaughnessy, Esq.
Georgia’s garnishment statute, O.C.G.A. § 18-4-1 et seq., was recently amended by the Georgia legislature in response to a court decision which deemed it unconstitutional. As garnishment is an important tool in the collections process, it is important to understand the changes to the process and procedure in the new statute in order to ensure compliance.
By way of background, the reason the prior version of the statute was found to be defective relates to certain types of funds which are exempt from garnishment. Social Security benefits, unemployment benefits, workers’ compensation payments, disability income benefits and certain other types of funds are exempted from garnishment and cannot be collected through the garnishment process to satisfy a judgment. In September 2015, a federal judge determined that Georgia’s garnishment statute was unconstitutional because it (i) failed to require that Defendants be notified that certain funds were exempt from garnishment, (ii) failed to require that Defendants be notified of the procedure to claim an exemption, and (iii) failed to provide a timely procedure for courts to adjudicate claims of exemption.
In response, the Georgia General Assembly amended the statute during the 2016 legislative session to fix the problems with the statute. The revised statute was signed into law on April 12, 2016 and went into effect on May 12, 2016. Under the prior version of the statute, a party filing a garnishment filed an Affidavit of Garnishment and a Summons of Garnishment. Under the revised statute, when a party is attempting to garnish funds held by a bank or other financial institution, additional forms must be provided to the Defendant. These forms are the Notice to Defendant of Rights Against Garnishment and the Defendant’s Claim Form. These forms advise Defendants of the types of funds which cannot be garnished and the process by which to claim exemptions. Additionally, if a Defendant claims an exemption, the court is required to schedule a hearing within 10 days from its receipt of the Defendant’s Claim Form, creating a timely process for courts to adjudicate these claims.
The other important change to the statute is that a financial institution must answer a garnishment between 5 and 15 days after it receives service of the Summons of Garnishment. Under the old statute, a financial institution could take up to 45 days to respond to a Summons of Garnishment. This expedited procedure removes some of the uncertainty and delay from a garnishment proceeding, but it requires a party to use an updated form to give notice of this shortened timeline.
As noted above, garnishment is often the most important tool available to collect on a judgment obtained against an adverse party. It is important to comply with the new statute when filing a garnishment action, and to be prepared to react quickly within the new expedited timeline for garnishment actions.