How to Stop a Garnishment in Georgia
When your pay check or bank account is being garnished by a creditor, you have a limited amount of time to stop the garnishment before the money is paid to the creditor. In Georgia, your options for disputing the legality of the garnishment are limited. However, there are a few solutions that will resolve your problems.
1. File a Traverse Against the Garnishment:
One way of succeeding in a traverse is showing that the underlying judgment upon which the garnishment is based is invalid or void. There are other reasons (social security income cannot be garnished; joint accounts where the money does not belong to the debtor cannot be garnished) a garnishment can be traversed, but I will not discuss those in this article. To understand what that means, you have to understand how a garnishment is successfully filed.
How Does a Creditor Obtain a Judgment?
In order to get to the garnishment stage in Georgia, a creditor (this could be a credit card company, a collections company, a car creditor, a medical creditor, or even an individual to whom you owe money) must sue the debtor in court first. This lawsuit is separate from the garnishment lawsuit. The initial lawsuit seeks a monetary “judgment” against the debtor; the judgment is an order from a judge stating that a debtor owes the creditor a specific amount of money. In Georgia, the lawsuit must be served upon the debtor personally or upon a person living with the debtor who is of age by a sheriff or a process server. If the creditor successfully shows the court that the debtor owes the money, then the judge will issue an order giving the judgment to the creditor; or, if the debtor does not properly answer the lawsuit, then the judge will give the creditor an automatic judgment.
How is a Judgment Void?
A judgment can be void if it was improperly issued. For example, the judgment can be void if the lawsuit was never served upon the debtor. In some instances, the process server or sheriff may serve the wrong person or serve the lawsuit at an address where the debtor never resided. If that is the case, then the debtor may petition the court to reopen the case and present evidence that s/he lived elsewhere or was never served to seek that the court void the judgment. Another way of voiding a judgment is if the debtor was in the military and was deployed at the time the lawsuit was filed, then there is a Soldiers and Sailors Relief Act that requires creditors to make sure that the debtor is not deployed at the time of filing suit; if that is the case, then the debtor can petition the court to vacate the judgment.
The problem with voiding a judgment as a way to stop a garnishment is that you have to go backwards into the old lawsuit wherein the creditor originally obtained the judgment first. That is, you must petition the court where the judgment was rendered to reopen the case (costs money) and then go to that court and present evidence that the judgment is void. Then, if you succeed there, then you take that order voiding the judgment into the garnishment case. That’s a lot of time and money–depending on your financial situation, you may not have time and money to reopen a lawsuit in another case before successfully traversing a garnishment. If you do wish to reopen the original lawsuit, the court is still going to allow the garnished funds to be drafted and held in the court registry pending the resolution of the case. That means, if you have cash flow issues, this is not a great option for you.
2. Debt Settlement of the Judgment and Garnishment:
So, if you do not have the time and money to traverse a garnishment, then you may have better luck settling the debt. Debt settlement at the garnishment stage is more successful if you offer a one-time lump sum to settle the debt. Depending on your financial circumstances and the facts of your case, you may be able to settle the debt for as little as 1/3 of the total amount of the judgment. For example, if you were not served with the lawsuit and can prove it through, say, a lease showing you lived elsewhere at the time, you may be able to use that to show the creditor you could win a traverse; but, in the interest of saving time and money, you would rather settle the debt. If the creditor accepts your offer of settlement, then it will dismiss the garnishment, stop collecting on the account, and cancel any liens against you. If you successfully settle the debt for a lump sum of money less than the total balance of the debt, then you could received a 1099 for income (cancelled debt) from the creditor.
Many folks wish to use bankruptcy as a last resort when they receive a garnishment notice. However, bankruptcy automatically stops a garnishment with almost zero questions asked because filing a bankruptcy case initiates what is known as a “stay.” The stay prevents creditors from taking any actions against a debtor, including garnishments. The minute you file a bankruptcy case and get a case number, the creditor is required to release the garnishment of wages or bank funds. Evaluating whether you should file bankruptcy or look at other alternatives requires a look at your overall financial circumstances. Thus, it is important to contact an attorney who is licensed in Georgia to assist you with determining what the best option is for you when a garnishment is filed against you.
The Law Offices of Charles Clapp specializes in garnishment issues in Georgia. To consult with an attorney, please call 404.585.0040 or e-mail us at firstname.lastname@example.org
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