Georgia's New Garnishment Code Takes Effect on May 12, 2016
On April 12, 2016, Governor Deal signed into law Senate Bill 255 (SB255) which was passed by the Legislature to repeal and replace the existing garnishment code. SB255 was drafted in response to orders from Judge Shoob of the U.S. District Court for the Northern District of Georgia finding that the current garnishment code was unconstitutional because it did not provide adequate protection for claims of exempt funds and did not provide a quick enough adjudicative process for objections, traverses, third-party claims, and the like. Unlike most bills signed by the Governor which take effect July 1, 2016, SB255 is effective this coming Thursday, May 12, 2016, which is 30 days from the Governor’s signature.
Below are a few highlights and warnings:
- The pre-judgment garnishment code (currently O.C.G.A. sec. 18-4-40 through 18-4-48) has been repealed in its entirety without replacement. Beginning Thursday, claimants will no longer be able to pursue prejudgment garnishment as a remedy.
- SB255 provides for post-judgment garnishments of both a "one-shot" and continuing nature using new procedures. Judgment creditors can still file garnishments against financial institutions, though the applicable coverage period for a financial institution garnishment has been reduced to just five days (from a minimum of 30 under the existing code). Continuing wage garnishments will still last for 180 days with the ability to refile to maintain continuous coverage.
- The most substantive of the changes under the new code relate to the notices to be provided to the garnishee and the judgment debtor (defendant in garnishment). The Georgia Attorney General is now required to maintain an updated list of the type of funds exempt from garnishment and both the Judgment creditor/plaintiff and the garnishee are now required to serve a copy of this list, along with other statutory notice, on the judgment debtor/defendant in each garnishment.
- Judgment debtors/defendants now also have a defined process for filing claims that the funds or property garnished are exempt, with a statutory 10 day period within which the courts must hear such claims. If the subject funds are found to be exempt, the funds must be returned to the judgment debtor within 48 hours.
- The answer deadline for a financial institution has been reduced from between 30 and 45 days after service, to between 5 and 15 days after service, with the coverage period reduced to five days. Non-financial institution "one-shot" garnishments will still last for 30 days.
- The new code continues to provide safe harbors for garnishees responding to garnishments in good faith and continues to permit non-lawyers to file garnishment answers for entity garnishees, though I do not recommend this approach given the numerous pitfalls to be avoided, particularly under a brand new code. Lawyers are still required to represent entities for any traverse or third-party claims.
There are many more changes included in the new code, which potentially apply to clients in three different ways: (1) as a garnishment plaintiff/judgment creditor, (2) as a garnishee, and/or (3) as a defendant/judgment debtor.
For any questions, or should you be served with, have a need to serve, or be the subject of a garnishment as the new code takes effect, please contact John J. Richard at firstname.lastname@example.org or 678.336.7172.