Garnishments and Traverses

A garnishment is a collection action that takes place once a party to a lawsuit has a judgment against a defendant.  This means that there was already a case and it was already lost.   People cannot be garnished just because someone says they owe money.  It is only after there is a judgment that a garnishment of their wages, accounts, or other property can take place.   The garnishment action does not have to be filed in the county in which the original judgment occurred, only in the county where property of defendant is held.

So, what this means is that if a person wants to fight a garnishment, it is almost always an uphill battle.  As a lawyer who represents consumers, I hate garnishments because my opponents usually feel what is often a well-deserved sense of confidence when walking into court.  After all, they have already won the war and got the judgment.  What is one more measly battle to try and get payment?  And, they have clearly found a source of collection for my clients whether through a wage garnishment or from garnishing bank funds.  Ugh.

When a garnishment is filed, the creditor is basically telling the employer, bank or whoever has property of yours that you have a claim to that property.   At that time, you are not actually a party to the action and the garnishment action is between the creditor and the garnishee (party holding the funds of yours).  To even become a party to the garnishment action, one must filed a traverse.  Some courts in Georgia charge to file a traverse; usually the charge for a traverse is  a very modest fee of around $20.00.  When a traverse is filed, the court will set a hearing to determine whether or not there is a valid judgment and if certain procedural requirements were met such that nothing is improper or illegal about the garnishment itself.

Often, what you will hear at these traverse hearings are challenges raised by defendants that they were never properly served with a lawsuit or that they never owed the money in the first place.  The trouble with these arguments is that they are being made before the wrong court.  Once again, if you are saying that you never owed the money, the time to argue this and assert this defense was within 30 days of being served with the lawsuit.  If that wasn’t done, the defenses were really waived, meaning you lose them.  Thus, a party who never had a justified and legal claim can acquire one because you failed to stop them from getting a judgment.  Think of it like this, nobody has a right to break into your house and steal your belongings.  However, if you are sitting in the hallway and watching them steal your stuff and you decide not to call the police, or even to say that what they are taking doesn’t belong to them, you are asking for trouble.

There is merit to the argument that someone was never originally served with the lawsuit.  After all, how can someone defend a lawsuit that they never knew was filed against him or her?  He or she can’t.  The problem here is that the court hearing the traverse is only concerned with the existence of the judgment.  If it is not valid because the person was never served, the proper and preferable action would be to ask that the court stay the garnishment proceeding and immediately file a motion to vacate the judgment in the court that originally granted the judgment to the plaintiff.

This may mean filing a motion in a court in an entirely different jurisdiction.  However, it is the only way to undo the jeopardy that the defendant in a garnishment is in with respect to losing his or her property.  In the meantime, the garnishment court will generally be agreeable to staying the proceeding until the motion to vacate is heard by the other court.  By “staying,” I mean that the property will remain held up in the court registry or otherwise not paid to the plaintiff until the motion to vacate and other issues are heard and decided.  Sometimes, just the threat of this delay and the further work required of the collector can facilitate some sort of settlement.

As I have mentioned, I am not a fan of fighting garnishments primarily because I often feel like a turtle on its back.  The best time for fighting has long past and a judgment was already entered.  That being said, I do get in this arena and have had success, but they are hard fought and take a great deal of time and effort.