In response to Senate Bill 255, one of our attorney members writes:
On 2/1/16 9:40 AM, Trace Dillon wrote:
I took a look at the statute. The biggest problem I have is § 18-4-3. The statute requires an affidavit based on personal knowledge with the balance. Everyone that files a garnishment is going to have to do it off business records, not personal knowledge. I think it should include the phrase “on personal knowledge or based on business records kept in the ordinary course of business.” If you don’t think this is an issue, you should review the Hannah case that resulted in a huge fine from the CFPB.
Also, § 18-4-8 creates some issues as well. They way that statute is worded, a Plaintiff has three days after service of the summons to serve the notice to the defendant/debtor. As a practical matter, this is a problem because the sheriff serves the garnishment summons and mails notice of the service to the Plaintiff. The Plaintiff may not know about the service for several days or weeks depending upon the county and sheriff. It either needs to include a statement that failure to serve the Notice does not result in a defective garnishment, but merely results in funds not being released until the notice is served, or notice to the defendant can be affected prior to service of the summons. With this language, a Plaintiff will file the garnishment and send the notice to the Defendant at the same time the summons is sent to the sheriff to serve. It should be noted, Debtors get actual notice of the garnishment when their bank account is frozen or when their employer withholds funds, so the notice objective is reached.
I hope these comments are helpful.
The Dillon Law Firm, PC
2346 Wisteria Drive
Snellville, GA 30078
**GEORGIA S.B. 255 - DEBT COLLECTION (JUDICIAL)
Sponsor: Senator Jesse Stone (R)
Summary: States that the procedure in garnishment cases shall be uniform in all courts.
Adds that any affidavit, garnishee answer, or pleading required or permitted by this chapter shall be amendable at any time before judgment is entered or before money or other property subject to garnishment is distributed by the court.
States the plaintiff, the plaintiff's attorney, or the plaintiff's agent shall make, on personal knowledge, an affidavit setting forth that the plaintiff has a judgment against a named defendant, the amount remaining due on the judgment, the name of the court which rendered the judgment, and the case number thereof.
Adds that upon the filing of the affidavit with the clerk of any court having jurisdiction to preside over garnishment proceedings, such clerk shall cause a summons of garnishment to issue, provided that the plaintiff's affidavit is: (1) Made before any officer authorized to administer oaths, a notary public, such clerk, or the deputy clerk of the court in which the garnishment is filed; and (2) Submitted to and approved by any judge of the court in which the garnishment is filed or submitted to and approved by any clerk or deputy clerk of such court if the court has promulgated rules authorizing the clerk or deputy clerk of such court to review and approve affidavits of garnishment.
States no payment made by the garnishee to the defendant or on his or her behalf, or by any arrangement between the defendant and the garnishee, after the date of service of the summons of garnishment upon the garnishee shall defeat the lien of such garnishment.
Adds that all money or other property 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 throughout the garnishment period shall be subject to the process of garnishment, provided that, 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 94 collateral.
States that the amount shown on the summons of garnishment shall not exceed the amount the defendant owes the plaintiff pursuant to a judgment.
Adds that a summons of garnishment, or an attachment thereto, shall state on its face with particularity all of the following information: (A) The name of the defendant and, to the extent such would reasonably enable the garnishee to properly respond to the summons of garnishment, all known configurations, nicknames, aliases, former or maiden names, trade names, or variations; (B) The service address and the current address of the defendant and, to the extent such would reasonably enable the garnishee to properly respond; (C) The social security number or federal tax identification number of the defendant.
States a summons of garnishment on a financial institution, or an attachment thereto, shall also state with particularity the defendant's account, identification, or tracking numbers.
(1) 'Disposable earnings' means that part of the earnings of an individual remaining after the deduction for federal income tax, state income tax, withholdings for the Federal Insurance Contributions Act (FICA), and other mandatory deductions required by law;
(2) 'Earnings' means compensation paid or payable for personal services, whether denominated as wages, salary, commission, fee, bonus, tips, overtime, or severance pay, including recurring periodic payments from pensions or retirement plans, including, but not limited to, the United States Department of Veterans Affairs, Railroad Retirement Board, Keoghs, and individual retirement accounts;
(3) 'Entity' means a public corporation or a corporation, limited liability company, partnership, limited partnership, professional corporation, firm, or other business organization other than a natural person;
(4) 'Financial institution' means every federal or state chartered commercial or savings bank, including savings and loan associations and cooperative banks, federal or state chartered credit unions, benefit associations, insurance companies, safe-deposit companies, trust companies, any money market mutual fund, or other organization held 40 out to the public as a place of deposit of funds or medium of savings or collective investment;
(5) 'Garnishee answer' or 'garnishee's answer' means the response filed by a garnishee responding to a summons of garnishment detailing the money or other property of the defendant that is in the possession of the garnishee or declaring that the garnishee holds no such money or other property of the defendant;
6) 'Public corporation' means any department, agency, branch of government or political subdivision, or any public board, bureau, commission or authority created by the General Assembly.
Status: Filed 1/6/2016. Introduced and referred to Senate Judiciary Committee 1/11/2016. Hearing held 2/2/2016.
Outlook: A hearing was held in the Senate Judiciary Committee. No action has been reported at this time.
The sponsor is a member of the majority party and sits on the committee of referral. The Committee is chaired by Senator Joshua McKoon (R). The Republican Party controls both legislative chambers and the Governor's Office.
GEORGIA S.B. 306 - CREDIT REPORTING , SECURITY BREACH
Sponsor: Senator P.K. Martin (R)
Summary: Removes telephone notification as a permissible means of informing a person of a potential breach of security involving personal information.
Provides for a free consumer credit report security freeze placement or removal for individuals notified of a potential breach of security involving their personal information.
Status: Introduced and referred to Senate Science and Technology Committee 2/1/2016.
Outlook: The sponsor of this measure is a member of the majority party and does not serve on the the committee of referral. The Committee is chaired by Senator Bruce Thompson (R). The Republican Party controls both legislative chambers as well as the Governor’s Office. This measure has gained the support of several cosponsors.
Effective Date: Effective Immediately
**GEORGIA S.R. 360 - SECURITY BREACH
Sponsor: Senator Brandon Beach (R)
Summary: Creates the Senate Data Security and Privacy Study Committee which may undertake a study of the conditions, needs, issues, and problems that may exist with existing security procedures, practices and systems in place across state and local government in Georgia or related thereto and recommend any action or legislation which the committee deems necessary or appropriate.
Status: Introduced; referred to Senate Science and Technology Committee 2/25/2015. Hearing held; passed Committee 3/3/2015. Recommitted 1/11/2016. Hearing held; passed Committee 2/2/2016.
Outlook: During the hearing, this measure passed the Committee by a majority voice vote. Testimony from the hearing has yet to be released. Further consideration has yet to be scheduled.
In the prior 2015 session, this measure was passed the Committee by a majority voice vote.
The sponsor of this measure is a member of the majority party. The Republican Party controls both legislative chambers as well as the Governor’s Office. This measure has gained the support of several cosponsors. The sponsor is the Chairman of the committee of referral.
Effective Date: Effective Immediately