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.
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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.
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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. § 1673 and O.C.G.A. § 18-4-20.
ERISA Qualified Retirement and Pension Benefits: O.C.G.A. § 18-4-22.
State Pensions: O.C.G.A. § 47-7-122 (firemen); O.C.G.A. § 47-3-28 (teachers);
O.C.G.A. § 47-17-103 (peace officers); O.C.G.A. § 47-16-122 (sheriffs); O.C.G.A.§ 476-100 (members of the general assembly); O.C.G.A. § 47-11-91 (probate judges);
O.C.G.A. § 47-14-91 (superior court clerks); O.C.G.A. § 47-2-332 (state court judges and
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solicitors); O.C.G.A. § 47-23-121(district attorneys and superior court judges);
O.C.G.A.§ 47-2-332 (state or local government employees under the employee retirement
system).
Federal Pensions: 5 U.S.C. § 8346 (federal civil service retirement benefits); 5 U.S.C. §
8346 (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. § 11109 (Merchant Seamen Protection and Relief Act benefits).
Social Security, SSI, Disability, and Veteran’s Benefits: O.C.G.A. §§ 49-4-35, -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. § 5301 (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
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Georgia.
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.
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Georgia.
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
$217.50. If you are paid other than weekly, you can multiply $217.50 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
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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.
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SAMPLE PLEADINGS
[BLANK PAGE]
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Georgia.
IN THE ___________ COURT ____________________ COUNTY
STATE OF GEORGIA
_________________,
Plaintiff
v.
]
]
]
]
]
]
]
]
]
_________________,
Defendant
_________________,
Garnishee
Civil Action No. ________________
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
_______________________________
Address 1
_______________________________
City, ST Zip Code
_______________________________
Garnishee’s Name
_______________________________
Address 1
_______________________________
City, ST Zip Code
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Georgia.
IN THE ___________ COURT ____________________ COUNTY
STATE OF GEORGIA
_________________,
Plaintiff
v.
]
]
]
]
]
]
]
]
]
_________________,
Defendant
_________________,
Garnishee
Civil Action No. ________________
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
_______________________________
Address 1
_______________________________
City, ST Zip Code
_______________________________
Garnishee’s Name
_______________________________
Address 1
_______________________________
City, ST Zip Code
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Georgia.
IN THE ___________ COURT ____________________ COUNTY
STATE OF GEORGIA
_________________,
Plaintiff
v.
]
]
]
]
]
]
]
]
]
_________________,
Defendant
_________________,
Garnishee
Civil Action No. ________________
Claim for Funds Paid into Court
Defendant/claimant in the above styled action, pursuant to O.C.G.A. §18-4-95, 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
_______________________________
Address 1
_______________________________
City, ST Zip Code
_______________________________
Garnishee’s Name
_______________________________
Address 1
_______________________________
City, ST Zip Code
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Georgia.