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Generally, garnishments are only allowed after a judgment has been entered against you in an earlier, separate court proceeding. If your wages or your bank account has been taken from you by a garnishment, the first thing to check is whether or not the garnishment is based on a valid judgment. Some courts have their records online, so we may be able to look at the court papers while you are on the telephone with one of our attorneys. (If the court involved does not have online records, then we may need you to go to the courthouse to get complete copies of the court file that has the judgment.) This first review is to see if there is a defect in the judgment or the process leading to the judgment. For example, if you were never given proper notice of the earlier lawsuit, then you would have grounds to challenge the garnishment and the underlying judgment against you.
Even if the judgment is not defective, there may be grounds to fight the garnishment. Certain funds (such as social security, retirement funds, workers compensation, etc.) are protected from garnishment even when they are in your bank account. While banks may preserve known protected funds from the garnishment (because the bank knows the source of direct-deposited funds), banks may not always get it right. If the bank messes up and holds protected funds, filings can be made in the garnishment to recover the protected funds. Even if the judgment is defect-free and no protected funds are involved, there may be defects in the garnishment process which invalidate the garnishment. Georgia law in this area has changed significantly in recent years, so it is important to have your garnishment case reviewed by a qualified attorney.
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Generally speaking, money judgments in Georgia are collectable for seven years after they are entered by a court and can be renewed for additional seven year periods. Once seven years have elapsed without renewal of the judgment, the judgment becomes "dormant" and uncollectable. Creditors may "revive" judgments that have gone dormant by filing with the court a petition for a writ of scire facias (literally translated from Latin as "cause him to know") within three years of the judgment becoming dormant.
Many judgments that were taken during and in the aftermath of the "Great Recession" (approximately December 2007 through June 2009) are now dormant under Georgia law. Most of these dormant judgments are now in the three year period when the creditor can seek to revive it. If you are served with a petition for writ of scire facias, I strongly recommend that you have it reviewed by counsel. You have procedural and substantive rights to defend such a petition. In addition, there may be defects in the underlying judgment. That means that there may still be an opportunity for you to fight the writ and let the judgment remain dead and, therefore, uncollectable. If you have been served with a petition for a writ of scire facias, give us a call to discuss your options. |
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