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If you have received a judgment and do not know what assets the debtor may have, you may file Post-Judgment Interrogatories. These statutory questions help you locate assets.Many "pro se" litigants, lay persons, have the mistaken belief that "the court" will collect any judgment that may be entered in their behalf. That belief is inaccurate. Courts could not legally fulfill their constitutional duty of impartiality in all proceedings if a court was to act as an agent on behalf of any party, including post judgment collection proceedings.Post judgment collection is the responsibility of the judgment creditor. MAG 14-01 gives an outline various judicial and non-judicial remedies that a judgment creditor may employ to collect the monies awarded to them in a civil case.
O.C.G.A. §15-10-50. Propounding of interrogatories to judgment debtor; form; contempt; authorized discovery procedures.
O.C.G.A. §9-11-69. Execution; discovery in aid thereof.Process to enforce a judgment for the payment of money shall be a writ of execution unless the court directs otherwise. In aid of the judgment or execution, the judgment creditor, or his successor in interest when that interest appears of record, may do any or all of the following:
40-11-5. Lien foreclosure procedure
All liens acquired under Code Section 40-11-4 shall be foreclosed as follows:
40-11-4. Creation of lien; courts authorized to foreclose lien
40-11-7. How purchaser at foreclosure sale may obtain certificate of title
The purchaser at a sale as authorized in this article shall receive a certified copy of the court order authorizing such sale. Any such purchaser may obtain a certificate of title to such motor vehicle by filing the required application, paying the required fees, and filing a certified copy of the order of the court with the Department of Revenue. The Department of Revenue shall then issue a certificate of title, which shall be free and clear of all liens and encumbrances.
40-11-6. Sale of vehicle pursuant to foreclosure
40-11-8. Disposition of proceeds of foreclosure sale
The clerk of the court shall retain the remaining balance of the proceeds of a sale under Code Section 40-11-6, after satisfaction of liens, security interests, and debts, for a period of 12 months; and, if no claim has been filed against such proceeds by the owner of the abandoned motor vehicle or any interested party, then he shall pay such remaining balance as follows:
No. A landlord may legally remove a tenant and the tenant's property from rented premises only under the dispossessory procedure. If a landlord uses self-help to evict a tenant without a dispossessory warrant, it is a tort for which the tenant may recover damages in a civil action, and a landlord who cuts off utilities may be subject to misdemeanor prosecution under OCGA 44-7-14.1.
While you may file a late answer, it will not prevent a Landlord from contacting the Magistrate Court`s office about presenting the writ of possession to a judge for signature.
The Landlord is responsible for service of the dispossessory action on the tenant. Personal service on the tenant of the dispossessory warrant must be attempted and may be made by the Sheriff or Marshall by payment of the service fee with the warrant filing fee to the Clerk of Court. The Clerk will forward the service fee to the Sheriff/Marshall. In the event the Sheriff or Marshall cannot serve the tenant personally, service may be sui juris, that is, to any person residing at the premises of suitable age and discretion. If the Sheriff is unable to obtain personal or sui juris service of the dispossessory warrant, it may be delivered by tack and mail, that is, posted on the door of the premises. On the same day of posting, the sheriff must mail a copy of the dispossessory warrant to the tenant at the tenant's last known address.
Upon service of a dispossessory warrant, the tenant has seven (7) days to file an answer with the Magistrate Court. Failure to file an answer within seven days of service of the dispossessory warrant may result in a writ of possession being issued against the tenant.
If the tenant fails to file an answer with the Magistrate Court within seven (7) days from service of a dispossessory warrant, the landlord may request a writ of possession by paying the sheriff's service fee to the Magistrate Court. After the Judge has signed the writ of possession, the landlord may contact the Sheriff's Office to set up a time for the eviction. Please see the list of filing fees for the fee for this service.
Courts in Georgia have held that when a landlord fails to respond to repair requests after a reasonable time, tenants can hire a competent repair person to perform the needed repairs. The cost must be reasonable, and the tenant may deduct the cost from the rent. It's a good idea to put your request in writing, keep all receipts and invoices, hire licensed workers if possible, and perform only needed repairs, not upgrades.After the Tenant has given reasonable notice of a defect to the Landlord, and the Landlord has failed to make the repair within a reasonable time, the Tenant may make reasonable repairs and deduct the reasonable cost from the rent, or the Tenant may file a lawsuit against the Landlord for damages arising from the failure to repair.
Along with your Answer, you can file what is called a Counterclaim, which is, essentially, a Statement of Claim filed by the Tenant against the Landlord. If your Counterclaim exceeds $15,000, the jurisdictional limits of the Magistrate Court, the case will be transferred to a court that does have jurisdiction. Usually the entire case will be transferred. However, there may be some cases where the Landlord`s claim will remain in Magistrate Court and the Tenant`s counterclaim will be transferred separately.
When the last day to file an answer falls on a weekend or a legal holiday, the answer may be filed with the Magistrate Court by close of the next business day.
When an answer is filed, a court date is given for the following week. The tenant will be given a court date at the time the answer is filed. The notice of the court date, along with a copy of the tenant's answer, will be mailed to the landlord by regular mail.
A landlord/tenant relationship must exist between the parties. The tenant must be either a tenant holding over, a tenant at will, a tenant at sufferance, or having failed to pay rent as it becomes due. The landlord must have made a demand for possession of the premises prior to commencement of the proceedings. Please see the list of filing fees for the fee for this service.
You should bring with you all persons who have direct knowledge of the facts related to your case and any documents, photographs, repair bills, receipts, or other physical evidence which you feel would help the Court better understand your case.
A dispossessory warrant should be filed in the county where the rental property is located.
An appeal will only stop an eviction if there is an order to require the payment of rental or market value of the property into the registry and the defendant complies with that order every month as long as the appeal is pending.
It is possible. The Court does not report information to credit reporting agencies, but the Court's records are public records and the agencies have access to the records.
Garnishment proceedings may be filed immediately if the judgment issued is a default judgment. Otherwise, a period of ten (10) days must lapse before a garnishment can be filed. The correct forms for filing a garnishment can be obtained from this website or from the Magistrate Court Clerk's Office.
No money can be paid out until a Certificate of Service identifying the proper method of service on the garnishee and notice to the defendant, along with all other required documents, is filed with the Court. Plaintiff's obligation to provide notice of the garnishment to the defendant is governed by O.C.G.A. 18-4-8. Please read this code section if you are unfamiliar with garnishment law regarding notice to the defendant. Failure to obtain proper and timely service on both the garnishee and the defendant shall result in dismissal of the garnishment action.
View a Certificate of Service Form (PDF).
A continuing (wage) garnishment is good for 195 days from the date of service by the Sheriff's Department.A regular (bank) garnishment is good for 45 days from the date of service by the Sheriff's Department.
A garnishee must file an answer with the court no later than 45 days, but not sooner than 30 days from the date of service by the Sheriff's Department.
The principal amount on the judgment may not exceed $15,000.00 when filing a garnishment with the Magistrate Court.
Service on the Garnishee. The plaintiff must have the garnishee served personally or pursuant to a legally authorized service substitute (usually requiring permission from the Court) with a copy of:
(1) the Affidavit of Garnishment;
(2) the Summons of Garnishment; and
(3) the Notice to Defendant of Right against Garnishment of Money, Including Wages and Other Property and Defendant's Claim Form. See O.C.G.A. 18-4-8(a) and 9-11-4.
Service on the Defendant. No later than three (3) business days after service of the garnishment on the garnishee, the plaintiff must also serve the defendant with:
(3) the Notice to Defendant of Right against Garnishment of Money, Including Wages and Other Property and Defendant's Claim Form.
For all service after May 12, 2016, service on the defendant may only be made through the following methods:
a. By regular mail to the defendant at the defendant's last known address and by registered or certified or statutory overnight delivery, return receipt requested. See O.C.G.A. 18-4-8(b)(1)(A).; or
b. Personal service by the sheriff or other approved special process service.
If the plaintiff can establish by affidavit that the defendant resides out of this state, has departed this state, cannot, after due diligence, be found within this state, or has concealed his or her place of residence from the plaintiff, the plaintiff may be permitted to serve the defendant by regular mail at the address at which the defendant was served as shown on the return of service in the action resulting in the judgment. A certificate of such mailing shall be filed with the clerk of the court in which the garnishment is pending by the person mailing such notice.
If the plaintiff fails to serve the defendant within this statutory time period, no funds will be distributed, no default judgment will be entered against Garnishee, and the garnishment is subject to dismissal.
Read the full text of the law regarding service and required notice.
A copy of the judgment must accompany the garnishment upon filing if the judgment was obtained from another court. You also need:
If the garnishee fails to file an answer by the 45th day from the date of service, they still have an additional 15 days in which they can file an answer but they are required to pay court cost in order to open the default. If the garnishee fails to file an answer by the 60th day from the date of service, the plaintiff can request a judgment against the garnishee. The plaintiff can then take steps to collect the judgment from the garnishee.
Note that the Court will not enter a default judgment against a garnishee unless the Plaintiff has filed proof of service on Defendant and a proposed judgment.
The plaintiff's traverse states that the garnishee's answer is untrue or legally insufficient. The plaintiff may file a traverse no later than 15 days after the answer of the garnishee is filed with the court. The defendant's traverse states that the affidavit of garnishment is untrue or legally insufficient. The defendant may file a traverse at any time before a judgment is entered on the garnishee's answer. The garnishee must withhold funds until the judge rules on the traverse. The funds are held in the registry of the court until the traverse is ruled on. A traverse must be scheduled for a hearing within 10 days of the filing of the traverse.
See O.C.G.A 18-4-20. Property subject to garnishment generally; claim amount and defendant's social security number on summons; information to be contained on summons of garnishment upon financial institution. Statute text:
(a) As used in this Code section, the term:
"Disposable earnings" means that part of the earnings of an individual remaining after the deduction from those earnings of the amounts required by law to be withheld.
"Earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.
(b) All debts owed by the garnishee to the defendant at the time of service of the summons of garnishment upon the garnishee and all debts accruing from the garnishee to the defendant from the date of service to the date of the garnishee's answer shall be subject to process of garnishment; and no payment made by the garnishee to the defendant or to his order, or by any arrangement between the defendant and the garnishee, after the date of the service of the summons of garnishment upon the garnishee, shall defeat the lien of such garnishment.
(c) All property, money, or effects of the defendant in the possession or control of the garnishee at the time of service of the summons of garnishment upon the garnishee or coming into the possession or control of the garnishee at any time from the date of service of the summons of garnishment upon the garnishee to the date of the garnishee's answer shall be subject to process of garnishment except, in the case of collateral securities in the hands of a creditor, such securities shall not be subject to garnishment so long as there is an amount owed on the debt for which the securities were given as collateral.
(d) Notwithstanding subsection (a) of this Code section, the maximum part of the aggregate disposable earnings of an individual for any work week which is subject to garnishment may not exceed the lesser of:
(A) Twenty-five percent of his disposable earnings for that week; or
(B) The amount by which his disposable earnings for that week exceed 30 times the federal minimum hourly wage prescribed by Section 6(a)(1) of the Fair Labor Standards Act of 1938, U.S.C. Title 29, Section 206(a)(1), in effect at the time the earnings are payable.
In case of earnings for a period other than a week, a multiple of the federal minimum hourly wage equivalent in effect to that set forth in subparagraph (B) of paragraph (1) of this subsection shall be used.
(e) The limitation on garnishment set forth in subsection (d) of this Code section shall apply although the garnishee may receive a summons of garnishment in more than one garnishment case naming the same defendant unless the garnishee has received a summons of garnishment based on a judgment for alimony or the support of a dependent, in which case the limitation on garnishment set forth in subsection (f) of this Code section shall apply although the garnishee may receive a summons of garnishment in more than one garnishment case naming the same defendant. No garnishee shall withhold from the disposable earnings of the defendant any sum greater than the amount prescribed by subsection (d) or subsection (f) of this Code section, as applicable, regardless of the number of summonses served upon the garnishee.
(f) The exemption provided by subsection (d) of this Code section shall not apply if the judgment upon which the garnishment is based is a judgment for alimony or for the support of any dependent of the defendant, provided the summons of garnishment shall contain a notice to the garnishee that the garnishment is based on the judgment for alimony or the support of a dependent. In any case in which the garnishment is based on the judgment, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment shall be 50 percent of the individual's disposable earnings for that week.
Certain types of cases cannot be filed in Magistrate Court, regardless of the amount in recovery being sought, such as, divorce and family matters and any case in which the Court would be called upon to decide who is the legal owner of real estate. Furthermore, the Magistrate Court cannot issue an injunction, which is an order directing a party to take some action such as repairing or returning property.
The Magistrate Court of Fulton County is also referred to as small claims court. You can electronically file a claim when you are seeking $15,000.00 or less. If your claim exceeds $15,000.00 principal, the Magistrate Court does not have jurisdiction (the legal authority) to hear your case, and it must be filed in another court; such as, State Court or Superior Court. This limit applies to both the claim of the Plaintiff and any counterclaim of the Defendant. Interest and court costs do not affect the jurisdictional amount.
On the thirty-first day after service on the defendant, the case goes into default. However, the defendant has additional fifteen (15) days to open the default by filing a late answer and paying all court costs along with the answer. No Answer may be filed beyond the forty-fifth day following service.
To start the process of electronic filing a small claims case, you must first fill out a Statement of Claim Form. On this form, you will enter the name and address of the person or corporation you are suing, state the exact amount of money you are suing for, and explain why you are suing. You may represent yourself, act as an agent for your corporation, or you may sue on behalf of a minor should you be the guardian. However, you cannot represent someone else if you are not an attorney. Remember that you must sue a corporation in the county where it is doing business or where it is incorporated. You may also sue a corporation in the county where the registered agent is located. (The registered agent is the party that should be served for the corporation.)
If either party is dissatisfied with the judgment, that party may appeal (request a review of the judgment by a higher court). Either the state court or the superior court in the county will hear the appeal, and either party may request a jury trial. Appeals must be made within 30 days from the judge's decision. The court that hears the appeal will charge a filing fee.
In many cases collecting the court award is more difficult than proving the case in court. A judgment granting the plaintiff an award gives the plaintiff the right to collect the money damages from the defendant, but the plaintiff is responsible for actually collecting the award. The court cannot, and will not, collect awards for any party.
If the defendant is unable to make full payment immediately, the plaintiff may ask the court at the hearing to order a payment plan. The plaintiff must pay the clerical and accounting costs of such payment plan, which costs are not to exceed 10 percent of each payment made. If the defendant is unwilling to pay, the plaintiff may:
Before the hearing date, both parties should:
The Marshal, the Sheriff or any certified process server will serve the defendant(s) a copy of the complaint and summons filed with the court. These papers will inform the defendant of the nature of the suit. The defendant has thirty (30) days from the date that he or she was served with the complaint in which to answer the complaint. If the defendant fails to file an answer to the complaint within thirty (30) days, the law provides the defendant an additional fifteen (15) days in which to file an answer by paying all court costs along with the answer (totaling 45 days). If the defendant answers the claim, the Clerk will notify all parties and their attorneys of the trial date by regular U.S. mail.
The defendant must serve a copy of the Answer on the Plaintiff. Either personal delivery or first class U.S. mail may be used to file an Answer and all subsequent pleadings (court filings).
No. The plaintiff pays court costs when the case is filed. However, the defendant may be ordered to pay these costs to the plaintiff if the Plaintiff wins his or her case.
If one of the parties is seeking a continuance less than seven days prior to the court date, then it is the requesting litigant's responsibility to contact the opposing party(s) to seek mutual agreement to the reset; however, if the opposing party(s) objects then the requesting party can submit a written request to the court. In some circumstances, the requesting party may have to appear in open court to request a continuance.
Along with your answer, you can file what is called a counterclaim, which is essentially, a Statement of Claim filed by the defendant against the plaintiff. If your counterclaim exceeds the jurisdictional limits of the Magistrate Court, the case will be transferred to a court that has proper jurisdiction. Usually the entire case will be transferred. However, there may be some cases where the plaintiff's claim will remain in Magistrate Court and the defendant's counterclaim will be transferred separately.
You should bring all persons who have direct knowledge of the facts related to your case and any documents, photographs, repair bills, receipts, samples, or other physical evidence which you feel would help the Court better understand your case.
The defendant has thirty (30) days from the date of service to file an answer with the Court. The day after the date of service is counted as day one. If the thirtieth (30th) day falls on a day when the Court is closed (a weekend or legal holiday), then the answer is due on the next day the Court is open. What happens after the defendant is served with the Statement of Claim? The defendant has thirty (30) days from the date of service to file an answer with the Court. The day after the date of service is counted as day one. If the thirtieth (30th) day falls on a day when the Court is closed (a weekend or legal holiday), then the answer is due on the next day the Court is open.
If you file a case in Magistrate Court over which the Court does not have jurisdiction or where venue is improper, the case will be transferred to a court that does have jurisdiction. An order will be entered transferring the case to the appropriate court. The order may contain a requirement that you pay a transfer fee within twenty (20) days.
If the defendant fails to answer the plaintiff's claims or fails to appear at the hearing, the judge may, upon the plaintiff's request, hear and decide the case without hearing the defendant's side. This is called a default judgment. If the judge grants a default judgment, the plaintiff is entitled to the amount of money damages specified in the suit, plus court costs. If the plaintiff is asking for any non-money damages (such as property), a separate hearing must be held to determine the dollar value of the damages. If the defendant doesn't file an answer to the claim within 30 days, the defendant shall be in default. However, after the expiration of the 30 days, the defendant has 15 days in which to "open the default" by filing an answer and paying court costs.
Certain cases will be referred to mediation prior to a hearing before the judge. This allows the parties to try to settle the case without a hearing. Even if the parties agree to settle out of court, the plaintiff may ask the defendant to pay the court costs. If they cannot agree to settle, the judge will instruct both parties about courtroom procedure and hear the arguments presented by both sides.
The plaintiff and defendant may question or dispute each other's testimony during the hearing. When both parties have completed their presentations, the judge will make a decision. The judge may grant an award of monetary damages to the plaintiff, to the defendant or both.
The plaintiff must appear in court on the day of the hearing, or the judge may:
The defendant must appear in court on the day of the hearing, or the judge may grant a default judgment in favor of the plaintiff.
You must file your case in the County in which the Defendant (the party you are suing) resides. This requirement is referred to as "venue." All civil documents in Fulton County Magistrate Court are electronically filed at eFileGA.Businesses - The type of business determines the proper venue for a business named as the defendant. For a sole proprietorship, the suit should be filed in the county in which the owner of the business resides. For a partnership, the suit should be filed in the county in which at least one of the owners resides. For a corporation, the suit should be filed in the county where the corporation has designated its registered office with the Secretary of State's Office.Multiple Defendants - For multiple defendants, you can file your case in any County in which venue would be proper for at least one of the defendants, if they are jointly and severally liable.
The party who electronically files a claim is referred to as the "Plaintiff." The party who is sued is referred to as the "Defendant." A claim must designate the proper Plaintiff(s) and Defendant(s). The determination of the proper party will depend on whether the party is a person or a business and how that business is set up. Failure to name the proper parties may result in an unsatisfactory judgment.Individuals - If the party is a person, you should designate that party by his or her legal name.Minors - If the party is a minor (under the age of 18), the proper party depends upon whether the minor is the Plaintiff or the Defendant. A minor may not be a Plaintiff directly, but must be sued through the minor's parent or legal guardian. Example: "John Doe, a minor, by Joe Doe, next best friend." A minor may be sued directly or through the minor's parent or legal guardian.Businesses - If the party is a business, you must name the proper legal entity. The proper legal entity is determined by how the business is set up. You can contact the Georgia Secretary of State at (404) 656-2817 to get information on a corporation.Sole Proprietorship - A sole proprietorship is a business owned by one person that is not in the form of a corporation. The person may or may not use a trade name in the operation of the business. In either case, the proper party is the individual owner. Example: "John Doe, individually and d/b/a John's Garage."Partnership - A partnership is a business owned by two or more persons that is not in the form of a corporation. The proper parties are the actual partners. Example: "John Doe and Jane Doe, individually and d/b/a John's and Jane's Garage."Corporation - A Corporation is a legal entity separate and distinct from its owners. The proper party is the legal name of the corporation. Example: "John's Garage, Inc." You can obtain information on a corporation from the Georgia Secretary of State by calling (404) 656-2817. You should determine the correct legal name of the corporation, the County in which its registered office is located, and the name and address of the Registered Agent.