Claiming your exempt funds in a bank account garnishment

Transcription

1 Claiming your exempt funds in a bank account garnishment Georgia Legal Services Program You ve been garnisheed. Your bank has frozen funds in your bank account in order to pay a judgment that was sent by a creditor. A garnishment is a court action between 2 people: a person who has a judgment against you AND a person who holds money for you, like your employer or your bank. You are not included. But you can be. This packet provides you with instructions and forms. Use this packet to become a part of the garnishment action. Use this packet to keep your exempt funds. The information given here is not complete. You should talk to an attorney first to understand how the law applies to your particular situation. Please note: Use this packet only if you are in Georgia or if the garnishment is filed in a Georgia court. You cannot use this packet if the garnishment covers Child Support, Alimony, or debts owed to the Federal or State governments (like tax debt or government student loans). What are exempt funds? Certain sources of income are protected by federal and state law against garnishment. Some of these are completely protected (cannot be garnished at all) while others may only be garnished up to a certain amount. Here s a list of the exemptions we know of, however, there may be more. IMPORTANT: FIND THE EXEMPTION HERE THAT DESCRIBES YOUR FUNDS AND ENTER IT ON THE CLAIM FORM AT THE END OF THIS DOCUMENT: Wages: 15 U.S.C and O.C.G.A ERISA Qualified Retirement and Pension Benefits: O.C.G.A State Pensions: O.C.G.A (firemen); O.C.G.A (teachers); O.C.G.A (peace officers); O.C.G.A (sheriffs); O.C.G.A (members of the general assembly); O.C.G.A (probate judges); O.C.G.A (superior court clerks); O.C.G.A (state court judges and

2 solicitors); O.C.G.A (district attorneys and superior court judges); O.C.G.A (state or local government employees under the employee retirement system). Federal Pensions: 5 U.S.C (federal civil service retirement benefits); 5 U.S.C (federal civil service survivor annuities); 45 U.S.C. 231m (Railroad Retirement Act benefits); 33 U.S.C. 916 (Longshore and Harborworker s Compensation Act benefits); 46 U.S.C (Merchant Seamen Protection and Relief Act benefits). Social Security, SSI, Disability, and Veteran s Benefits: O.C.G.A , -84, and -58 (elderly, disabled or blind persons including SSI, Social Security, and Veterans payments); 42 U.S.C. 407 (Social Security retirement, Supplemental Security Income (SSI), or Social Security Disability Insurance (SSDI)); 38 U.S.C (Veterans Benefits). If you have funds in your account from one of these sources, you may be entitled to have that money released back to you. A court will need to make that decision, but in order for it to make the decision, you will need to let the court know that you have exempted benefits and show the court information which will help it make its decision. How Does a Garnishment Work? Before we explain what you may need to do, let s take a second to explain the process. You get a credit card. You make charges on it, but then lose your job and cannot make the payments any more. The credit card company closes the account and sells the debt you owe to a debt collector. Several different companies may own your debt over the next few years, but, finally, one company sues you on this credit card debt. If that company is successful in its lawsuit, it will get a judgment or a court paper that says you owe a certain amount to that company. With a judgment, the company has the right to get its money back using the courts. Most often, companies use garnishments to collect on judgments unless you can come up with the money and pay the judgment off. Sometimes they use the judgments to file liens (pronounced leans ) against land or personal property you have. If you re having trouble with someone taking your car or your house, contact a lawyer right away. This guide is only for bank garnishments. A garnishment allows a plaintiff (the company you owe money to) to get money that somebody else owes to you (the garnishee). When you make a deposit into a bank account, the bank owes you that money. If you work for somebody, the employer owes you wages. In a garnishment, the plaintiff uses the court to have the garnishee give your money to the plaintiff to pay off your debt. Now that the company has a judgment and is ready to file a garnishment, it will fill out an affidavit. This is a paper where someone from the company or its attorney swears information about the debt is true. It will then file the affidavit and a summons of

3 garnishment in the court. Which court depends on where your bank is located. Even though there might be a branch of the bank in your town, the bank is often served with garnishments wherever its registered agent is located. A registered agent is a person who accepts lawsuits for corporations. The sheriff then takes those papers and serves it on the bank. The plaintiff should send you notice of the garnishment three business days after the bank is served. The bank may also have to give you notice of the garnishment. It is not unusual if you don t know that you re being garnished until you try to get money out of your account, but cannot. Once served, your bank has between 30 and 45 days to send an answer to the court where the garnishment was filed. Once the bank files its answer, you will have fifteen days to let the court know about your exempted funds. Once you find out about the garnishment, it s really important to know when the bank was served and, later on, when it files its answer. How do I get the money back? Here s the information that you ve been waiting for. In Georgia, only the person or company filing the garnishment (the plaintiff) and the person or company who is served the garnishment (the garnishee) are actually parties to the garnishment lawsuit. Other people have to file two documents with the court in order to be heard by the judge. These papers are called a traverse and a claim. There are blank copies of each at the end of these instructions. After filling these out, you must make three copies. Give the original to the clerk at the courthouse. Send by first class mail a copy to both the plaintiff and garnishee using the addresses listed on the garnishment. Keep one copy for your own records. A traverse is a paper that allows you to object to the answer of the garnishee (your bank) or the affidavit of the plaintiff (the company filing the garnishment against your bank). Filing a traverse against a garnishee basically is your way to tell the court that the money that the garnishee paid into the court should not be paid into the court. Filing a traverse against the plaintiff s affidavit basically tells the court that not all the information in that affidavit is true. For example, if the plaintiff states an incorrect amount is owed, you would want to file a traverse of the affidavit. A traverse only has to say that the answer or affidavit is untrue and legally insufficient. The forms for a traverse which are attached already have this language. A claim does something a little different. A claim tells the court why you have a legal right to the money that is greater than the right the plaintiff has to it. For example, if you only have SSI funds in your bank account, federal law exempts your money from garnishments and gives you a legal right to the money greater than a plaintiff in a garnishment. In the attached blank claim form, you need to enter which source of exempted funds that you had in the account by using the Georgia or Federal code number for the exemption. Next to each exemption above you will find the code cite that you can put into the blank on the form below.

4 SUMMARY: if you have exempt funds and want them back, you have to file a traverse of the garnishee s answer and a claim. You must file these no later than fifteen days after the garnishee has filed its answer with your money in the court. What information does the judge need to make the decision? Each case will be different. This list is just a start and even if you provide these things to a judge, you may still not get your money back. First and foremost, you will probably want to get an account history from your bank that shows what deposits, payments, and transfers you made into and out of the account(s). How far back you will need to go depends on how active the account is and how much money is in there. For larger, less active accounts, like a savings account, you may need to go back more than a year. For most checking accounts, you can normally go back three months from the date of the garnishment to get a good sense of how much exempted money is in the account. For Wages in a Bank Account: This is tricky. Wages are only partially protected from garnishment. The amount of wages you are allowed to keep in a garnishment is based on how much you make. If you make less than thirty (30) times the minimum wage a week, your wages should not be garnished. Thirty (30) times the minimum wage is currently $ If you are paid other than weekly, you can multiply $ by 4.35 (= $946.13) for monthly or by 2.18 (= $473.06) for every two weeks. If you make more than this per week, you can only be garnished the lesser of 25% of your wages and your wages minus thirty (30) times the minimum wage. If your wages are directly deposited into your account, it makes it a little easier to show which deposits came from your employer. You should provide pay stubs if you have them. You may need to get information from your employer that shows that those amounts were paid to you for your work and how much was taken out of your check for expenses other than taxes and Medicare. If you receive cash and deposit it yourself, you will have an even harder time showing that you had wages deposited in the account. If you deposit your own pay checks, you may be able to use the pay stubs, scanned pictures from the bank of the checks you deposited, and information from your employer s bank showing that it paid the money to your bank account when the check was presented to it. For Pension Payments in a Bank Account: These work like wages except that some pensions are fully exempt and some use the same formula as wages. SSI, Disability, Veteran s Benefits: These are wholly exempt. If you do not receive these payments by direct deposit, you may want to get a copy of your award letter which tells you how much you receive every month and copies from your bank of the scanned checks you deposited. Joint Accounts: In Georgia, there are special rules for joint accounts. Unless there is a specific agreement to the contrary, the money in the account belongs to each owner of the account in proportion to the money he or she put in. If you own an account with someone, and you deposit $80 and the other person deposits $20, then you would own

5 80% of the account at the time. If you or the other person spent $50, you would own 80% of the remaining $50 (or $40). If you were being garnished, the other owner of the account could traverse and claim for the remaining $10 which belonged him or her.

6 SAMPLE PLEADINGS [BLANK PAGE

7 IN THE COURT COUNTY STATE OF GEORGIA Plaintiff v. Civil Action No. Defendant Garnishee Traverse of Plaintiff s Affidavit Comes now the defendant in the above styled case and traverses the Plaintiff s Affidavit by saying the same is untrue and legally insufficient. Defendant/Claimant ORDER It is hereby ordered that a hearing be held upon the defendant s/claimant s traverse before this Court on the day of,, at :. M., and that a copy of the defendant s/claimant s traverse and this order be served as provided by law. This the day of,, Judge Court of County CERTIFICATE OF SERVICE I hereby certify that I have served the parties in the above styled action with a copy of the foregoing Traverse of Plaintiff s Affidavit and Order by sending said copy by first class U.S.Mail with sufficient postage thereon addressed as follows: Plaintiff s Name Garnishee s Name Address 1 Address 1

8 IN THE COURT COUNTY STATE OF GEORGIA Plaintiff v. Civil Action No. Defendant Garnishee Traverse of Garnishee s Answer Comes now the defendant in the above styled action and traverses the garnishee s answer by saying the same is untrue and legally insufficient. Defendant/Claimant ORDER It is hereby ordered that a hearing be held upon the defendant s/claimant s traverse before this Court on the day of,, at :. M., and that a copy of the defendant s/claimant s traverse and this order be served as provided by law. This the day of,, Judge Court of County CERTIFICATE OF SERVICE I hereby certify that I have served the parties in the above styled action with a copy of the foregoing Traverse of Garnishee s Answer and Order by sending said copy by first class U.S.Mail with sufficient postage thereon addressed as follows: Plaintiff s Name Garnishee s Name Address 1 Address 1

9 IN THE COURT COUNTY STATE OF GEORGIA Plaintiff v. Civil Action No. Defendant Garnishee Claim for Funds Paid into Court Defendant/claimant in the above styled action, pursuant to O.C.G.A , hereby claims that she/he has a superior claim to all funds paid into court by the garnishee on the grounds that such funds are exempt from garnishment pursuant to: Defendant/Claimant Comes now, defendant/claimant in the above styled action, and, under oath, states that the foregoing facts are true and correct. This the of, 20. Defendant/Claimant Sworn to and subscribed to before me on this date: Notary Public CERTIFICATE OF SERVICE I hereby certify that I have served the parties in the above styled action with a copy of the foregoing Claim For Funds Paid Into Court by sending said copy by first class U.S.Mail with sufficient postage thereon addressed as follows: Plaintiff s Name Garnishee s Name Address 1 Address 1