Collecting a Judgment Against an Uncooperative Defendant in Georgia

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A judgment that goes unpaid has to be enforced, and Georgia gives the judgment creditor a set of tools for that: a writ of execution that the sheriff can levy on the defendant’s property, discovery to find what the defendant owns, garnishment of wages, a lien on land once the judgment is recorded, and a claim to undo transfers made to put assets out of reach. The same statutes protect part of the defendant’s property, and a judgment that is left idle for seven years becomes dormant.

From Judgment to Execution

“Process to enforce a judgment for the payment of money shall be a writ of execution unless the court directs otherwise” (OCGA 9-11-69). The clerk of the court that entered the judgment issues the execution, directed “[t]o all and singular the sheriffs of this state and their lawful deputies,” and it “may be levied on all the estate of the defendant, both real and personal, which is subject to levy and sale” (OCGA 9-13-10).

The judgment grows while it goes unpaid. In civil actions filed on or after July 1, 2003, a judgment bears annual interest on the principal at the prime rate published by the Board of Governors of the Federal Reserve System on the day the judgment is entered, plus 3 percent, and that interest attaches to every judgment automatically, whether or not the judgment mentions postjudgment interest (OCGA 7-4-12(a), (c), (d)).

Finding the Defendant’s Assets

A creditor who does not know what the defendant owns can ask. In aid of the judgment or execution, the judgment creditor may “[e]xamine any person, including the judgment debtor by taking depositions or propounding interrogatories,” may “[c]ompel the production of documents or things,” and, “[u]pon a showing of reasonable necessity,” may obtain a court’s permission to enter real property of the debtor “which is not used as a residence and which property is not bona fide in the lawful possession of another,” all “in the manner provided in this chapter for such discovery measures prior to judgment” (OCGA 9-11-69).

Garnishment of Wages

Subject to the limitations in OCGA 18-4-6 and 18-4-53, “the maximum part of disposable earnings for any work week which is subject to garnishment shall not exceed the lesser of” 25 percent of the defendant’s disposable earnings for that week (15 percent if the judgment arose from a private student loan), or “[t]he amount by which the defendant’s disposable earnings for that week exceed $217.50” (OCGA 18-4-5(a)(2)). For a period other than a week, “the proportionate fraction or multiple of 30 hours per week at $7.25 per hour shall be used” (OCGA 18-4-5(a)(3)). The limit applies even if the garnishee receives more than one summons naming the same defendant, except for continuing garnishment for support (OCGA 18-4-5(b)).

For example, imagine a defendant whose disposable earnings for a week are $600. Twenty-five percent is $150, and the amount above $217.50 is $382.50, so the lesser figure, $150, is the ceiling for that week. At $250 in disposable earnings, twenty-five percent would be $62.50 and the amount above $217.50 would be $32.50, so the ceiling would be $32.50.

A Lien on Real Property

A judgment reaches land only through the land records. “No judgment, decree, or order or any writ of fieri facias issued pursuant to any judgment, decree, or order of any superior court, city court, magistrate court, municipal court, or any federal court shall in any way affect or become a lien upon the title to real property until the judgment, decree, order, or writ of fieri facias is recorded in the office of the clerk of the superior court of the county in which the real property is located and is entered in the indexes to the applicable records in the office of the clerk” (OCGA 9-12-86(b)). The recording and indexing “must be requested and paid for by the plaintiff or the defendant, or his attorney at law.” The recording is county by county: the lien reaches land in a county once the judgment is recorded and indexed there.

Property the Defendant Keeps

Georgia exempts part of a debtor’s property from levy. Except as the article otherwise provides, “there shall be exempt from levy and sale by virtue of any process whatever under the laws of this state any real or personal property or both of a debtor in the amount of $5,000.00 or $21,500.00 for real or personal property that is the debtor’s primary residence,” and no court or officer may enforce a judgment against property set apart under that section “except for taxes, for the purchase money of the property, for labor done on the property, for material furnished for the property, or for the removal of encumbrances on the property” (OCGA 44-13-1).

Some funds are also shielded from garnishment. Money in an individual retirement account or a pension or retirement program is exempt “until paid or otherwise distributed,” and once distributed it is exempt only to the extent of the limits in OCGA 18-4-5, “unless a greater exemption is otherwise provided by law” (OCGA 18-4-6(a)(2)). Funds in an unfunded deferred compensation plan for “a select group of management or highly compensated employees” are not exempt (OCGA 18-4-6(a)(3)).

If the defendant files for bankruptcy, a debtor who is a natural person may claim, in place of the exemption in OCGA 44-13-1, a different Georgia list “for purposes of bankruptcy” (OCGA 44-13-100(a)). It includes an interest of up to $21,500 in a residence ($43,000 where title is in one of two spouses who is a debtor); up to $5,000 in motor vehicles; household furnishings, goods, clothing, and similar items held for personal or household use, up to $300 per item and $5,000 in total; and up to $1,500 in tools of the trade (OCGA 44-13-100(a)(1), (3), (4), (7)).

Dormancy and Renewal

A judgment “shall become dormant and shall not be enforced” when seven years elapse after its rendition before execution is issued and entered on the general execution docket of the county where it was rendered, or unless an entry is made on the execution by an officer authorized to levy, and entered on the docket, within seven years after issuance and record, or unless a “bona fide public effort” to enforce the execution in the courts is made and written notice of it is entered on the docket, in each case so that seven years do not elapse between entries (OCGA 9-12-60(a)). Each proper record or entry “shall institute a new seven-year period within which the judgment shall not become dormant” (OCGA 9-12-60(b)). The rule does not apply to judgments or orders for child support or spousal support (OCGA 9-12-60(d)). A dormant judgment “may be renewed or revived by an action or by scire facias, at the option of the holder of the judgment, within three years from the time it becomes dormant” (OCGA 9-12-61).

Transfers Made to Avoid Payment

A transfer made or obligation incurred by a debtor “is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made,” if the debtor acted “[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor,” or without receiving reasonably equivalent value and in the circumstances the statute lists (OCGA 18-2-74(a)). In deciding actual intent, the court may consider, among other factors, whether the transfer was to an insider, whether the debtor kept possession or control of the property, whether the debtor had been sued or threatened with suit before the transfer, whether the transfer was of substantially all the debtor’s assets, and whether the debtor removed or concealed assets (OCGA 18-2-74(b)). The creditor “has the burden of proving the elements of the claim for relief by a preponderance of the evidence” (OCGA 18-2-74(d)).

Frequently Asked Questions

What happens to a recorded judgment lien if the defendant goes through bankruptcy?
After the bankruptcy case closes, the debtor, a receiver or trustee, or any interested party may file an affidavit of lien release with the documents the statute lists, certifying that no order in the bankruptcy limited the discharge as to the judgment or retained the judgment lien. On filing, the lien is “deemed cancelled” as to property identified as exempt “for which a lien avoidance order was issued,” property re-vested in the debtor under a plan without lien retention, and “[a]ny other property acquired by the debtor after the filing of the bankruptcy petition” (OCGA 44-13-100(d)).

Can an employer fire an employee whose wages are garnished?
Not for one debt: “[n]o employer shall discharge an employee by reason of the fact that such employee’s earnings have been subjected to garnishment for any one obligation” (OCGA 18-4-5(c)).

Is the Attorney General’s list of garnishment exemptions complete?
Not necessarily. The Attorney General keeps a list of exemptions a defendant may claim, and each clerk who issues garnishment summonses posts it, but “[t]he fact that an exemption is not identified by the Attorney General shall not preclude a defendant from claiming an exemption” (OCGA 18-4-6(b), (c), (e)).

  • OCGA 9-11-69; OCGA 9-13-10; OCGA 7-4-12(a), (c), (d)
  • OCGA 18-4-5(a)(2), (a)(3), (b), (c); OCGA 18-4-6(a)(2), (a)(3), (b), (c), (e)
  • OCGA 9-12-86(b)
  • OCGA 44-13-1; OCGA 44-13-100(a), (d)
  • OCGA 9-12-60(a), (b), (d); OCGA 9-12-61
  • OCGA 18-2-74(a), (b), (d)

Disclaimer

This article provides general information about collecting a judgment under Georgia law. It is not legal advice and does not create an attorney-client relationship. What can be collected depends on the defendant’s assets, income, exemptions, and the specific facts, and a bankruptcy filing brings federal law into play. A person holding a judgment should consult a licensed Georgia attorney promptly about the particular situation.

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