A.     Introduction

If the Garnishee does not file an Answer by the forty-fifth day after being served with the Summons (or the next business day if the forty-fifth day is on a Saturday, Sunday or legal holiday), then the Garnishee is automatically in default.[i]

The Garnishee then has another 15 days to “open” the default. [ii] This is essentially a “grace period.”  See Chapter 14 for how to open the default within these 15 days.

If the Garnishee does not open the default within these 15 days, then a Default Judgment may be entered against the Garnishee for the entire amount which the Plaintiff claims to be owed by the Defendant on the judgment.[iii]  Once the Default Judgment is entered, the Garnishee owes the Plaintiff the same amount that the Defendant did, because the Garnishee did not respond in time!

Nevertheless, the Garnishee may have the Default Judgment modified to a $50.00 fine plus the amount that the Garnishee should have paid in to the Court, if the Garnishee will act within 60 days after receiving notice that the Default Judgment was entered.[iv]

This deadline is not necessarily 60 days after the date the Default Judgment was actually entered… the 60 days does not start until the Garnishee learns of the Judgment.[v]  “Notice to the garnishee by certified mail of the entry of a default judgment is “sufficient notice….”[vi]  If certified mail is used to give notice, the 60 day period begins to run:

l on the date of the first attempted delivery of such notice, even if the Garnishee fails or refuses to claim the notice  (provided the notice is correctly addressed and contains adequate postage), or

l on the date an agent of the addressee signs for the certified mail notice.[vii]

 

B.     A Company Must Be Represented By a Lawyer to Modify a Judgment

As described in Chapter 2, if the Garnishee is a company, then it will need a lawyer to move the Court to modify the default judgment.

However, even if a lawyer is not required, given the potentially high stakes involved in avoiding a judgment, it is recommended that a Garnishee who is in default hire a lawyer to make sure that all of the technicalities to modify the judgment are satisfied.

C.     How to Move the Court to Modify the Judgment within 60 Days after Notice

To move the Court to Modify the Default Judgment, the Garnishee should follow the following steps:

(1)  Call the Clerk’s office,[1] and:

  1. Ask what the costs of the action are, so you can move to modify the judgment (the clerk will need the case number from the Summons),
  2. Ask what form of payment the Clerk accepts (e.g. check, cash, money order), and to whom to make any check payable,
  3. Confirm the Clerk’s address.

(2)  Complete a cover letter to the Clerk (Form 15-7 Letter to Clerk)

(3)  Obtain the necessary payment for the costs (e.g. check or money order)

(4)  Prepare the Answer of Garnishee [See Chapters 12-13] (the statute does not specifically state that the Garnishee is required to file an Answer at this stage, but it is advised to help justify the amount you set forth in the Motion to Modify Judgment)

(5)  Prepare Form 15-2 Motion to Modify Judgment

  1. There is an optional paragraph 8 which calls for the Judgment to be VACATED.  It is recommended that the Garnishee consult with the Plaintiff or their counsel about simply paying the amounts which would be due, to obtain an agreement to vacate the judgment.  This may prevent having a judgment recorded against the Garnishee, protecting its credit rating.  If the Plaintiff will consent, then complete Form 15-3 Plaintiff Consent to Vacate Judgment, have the Plaintiff sign it, and file it with the Clerk.
  2. The Motion should be signed by the Garnishee in front of a notary public, who should notarize the Verification.

(6)  Prepare Form 15-4 proposed Order

  1. The form is largely self-explanatory.  If you are asking the judge to modify the Judgment, then it will be modified to include a $50.00 fine, plus the amount of money that the Garnishee should have paid over to the Clerk of Court (as calculated in preparing the Answer of Garnishee).
  2. [Optional] If a judgment is going to be issued, then the Garnishee may prefer to immediately pay it.  Immediate payment can avoid some of the negative effects of a judgment such as:
    1.                                                   i.    Accrual of postjudgment interest on the judgment,
    2.                                                 ii.    The recording of a Fi.Fa. against the Garnishee in the general execution docket which acts as a lien against the Garnishee’s property,
    3.                                                iii.    Negative reporting on the Garnishee’s credit report, and
    4.                                                iv.    Collection activity against the Garnishee, including the hassle of responding to postjudgment discovery requests.

If the Garnishee makes immediate payment of the reduced judgment into the Registry of the Court, then the Garnishee should consider checking off option “B” in the proposed Order.

(7)  [Optional] Prepare Form 15-5 General Civil Case Final Disposition Form

  1. If the case is pending in State Court or Superior Court (but not Magistrate Court), the prevailing party is required to file this form at the end of the case.
  2. This is not required to file the motion, but if the proposed Order modifying the judgment will end the case, then it will help to end the case for the Clerk to have the form.

(8)  Actually deliver to the Clerk’s office by the 60th day after the Garnishee received notice of the Default Judgment (it is not enough to mail it by this day)

  1. Form 15-7 Letter to Clerk
  2. The check or other payment of costs to open default
  3. The Answer of Garnishee
  4. Form 15-2 Motion to Modify Judgment
  5. [optional] Form 15-3 Plaintiff Consent to Vacate Judgment
  6. Form 15-4 proposed Order
  7. [optional] Form 15-5 Final Case Disposition Form
  8. Form 15-6 Certificate of Service
  9. The check or other payment for the garnished funds
  10. The other garnished property

(9)  Mail a service copy of the documents filed to the Plaintiff, Defendant, and any Claimant

 

If the motion is not filed by the deadline, then it is proper for the trial court to deny the motion.[viii]

D.    Moving to Set Aside Judgment on Other Grounds

The procedure in O.C.G.A. § 18-4-115(b) only applies when the court enters a default judgment.  However, the Court of Appeals has held that if the Garnishee has not been served with a summons of garnishment, then a purported ‘default judgment’ is not indeed entered pursuant to O.C.G.A. § 18-4-115(a), and therefore a motion to modify the judgment under O.C.G.A. § 18-4-115(b) “affords no relief.”[ix]  In such an instance, “the garnishee is entitled to bring a motion to set aside the default judgment under OCGA § 9:11:60(d)(1).”[x]

For example, when a summons of garnishment identified “Tommy Lewis d/b/a 2:A Paint and Body” as the garnishee in the caption of the Summons of Garnishment and Affidavit of Garnishment, but the Summons listed an entirely different entity “Lewis Automotive Enterprises, Inc.” as the garnishee, the Court of Appeals held that Tommy Lewis had not been given proper notice, because the summons of garnishment was not “directed to the garnishee” as required by O.C.G.A. § 18-4-113(a).[xi]  The Court of Appeals therefore held that the defective summons did not confer jurisdiction of Mr. Lewis’s person upon the court, and the court should have granted a motion to set aside the default judgment under O.C.G.A. § 9-11-60.[xii]

E.     Attend Hearing on the Motion

It is possible that the Court may hold a hearing where the parties appear and are allowed to present argument regarding whether the Motion to Modify Judgment should be granted.

The Garnishee bears the burden of showing that it complied with the requirements in O.C.G.A. § 18-4-91 to modify the judgment, and that the Garnishee has correctly calculated the amounts due in its (late) Answer of Garnishee.

An exception to this rule is that, if the Plaintiff wants to argue that the Garnishee did not file its Motion within the 60 day period, the Plaintiff bears the burden of showing that the Motion was untimely.[xiii]

The Plaintiff can show notice to the Garnishee by showing that it gave notice by certified mail or statutory overnight delivery (e.g. FedEx Overnight, signature required).



[1] –         To find a Magistrate Court clerk, visit: http://goo.gl/NzOTT

–           To find a State Court clerk, visit: http://goo.gl/XCGX5

–           To find a Superior Court clerk, visit http://goo.gl/kF15v



[i] O.C.G.A. § 18-4-90.

[ii] O.C.G.A. § 18-4-90.

[iii] See O.C.G.A. § 18-4-90.

[iv] See O.C.G.A. § 18-4-91.

[v] See O.C.G.A. § 18-4-91.

[vi] W. Ray Camp, Inc. v. Cavalry Portfolio Services, LLC, 308 Ga. App. 597, 598, 708 S.E.2d 560, 562 (2011) (holding that photocopy of default judgment signed by state court judge, with “ghost markings of the file stamp” provided actual notice sufficient to put Garnishee on notice that 60-day statutory period to seek to modify judgment was running).

[vii] Id.

[viii] W. Ray Camp, Inc. v. Cavalry Portfolio Services, LLC, 308 Ga. App. 597, 598, 708 S.E.2d 560, 562 (2011) (affirming denial of motion to modify judgment where Garnishee did not file motion until well after 60 day deadline had expired).

[ix] Lewis v. Capital Bank, 311 Ga. App. 795, 798, 717 S.E.2d 481, 484 (2011).

[x] Id.

[xi] Id.

[xii] Id., 311 Ga. App. at 800, 717 S.E.2d at 485.

[xiii] See O.C.G.A. § 18-4-91 (“On the trial of the motion, the burden of proof shall be upon any plaintiff who objects to the timeliness of the motion to establish that the motion was not filed within the time provided for by this Code section.”).