Georgia’s garnishment law unconstitutional

Tony Strickland filed a lawsuit after his bank account holding his workers’ compensation settlement was garnished for a credit card debt. The garnishment froze the account, preventing Strickland, who hurt his back at work and had nasal cavity cancer, from getting needed medical attention for other ailments. BRANT SANDERLIN / BSANDERLIN@AJC.COM
Tony Strickland filed a lawsuit after his bank account holding his workers’ compensation settlement was garnished for a credit card debt. The garnishment froze the account, preventing Strickland, who hurt his back at work and had nasal cavity cancer, from getting needed medical attention for other ailments. BRANT SANDERLIN / BSANDERLIN@AJC.COM

A federal judge has halted garnishments in Gwinnett County, ruling that the state law that governs the process is unconstitutional.

The law is flawed because it doesn’t require creditors to tell debtors that some money — like Social Security benefits, welfare payments and workers’ compensation — is off limits to garnishments. When that money is wrongly taken, the law doesn’t require creditors to tell people how to get it back, and it doesn’t provide a timely procedure for determining whether funds should have been exempt, U.S. District Court Senior Judge Marvin H. Shoob wrote.

Tuesday’s decision only affects Gwinnett County because the lawsuit was brought against the clerk of court there. But many believe it could lead to changes in the state’s garnishment law.

“I think it’s probably going to affect the whole state of Georgia. Lawyers are going to be reluctant to file garnishments,” said William Randall, chief judge of civil and magistrate court in Bibb County. “It’s going to bring the whole process to a standstill.”

A garnishment is a way to collect unpaid debts. It can happen when a creditor receives a judgment saying that someone has not paid the money they owe.

To collect the money, the creditor can file a garnishment lawsuit. A summons is issued informing the debtor of the garnishment and an employer or financial institution sends the money the debtor owes to the county where the garnishment was filed. At the same time, the debtor can opposed the garnishment. After about a month, if there is no opposition or the creditor wins in a hearing, the county sends the money to the creditor.

Tony Strickland filed a lawsuit after creditors seized his Social Security disability income and his workers' compensation settlement. His money was frozen for nearly four months. During that time, he said, he couldn't afford his heart medication and delayed a doctor's visit for a blood clot in his hand until his arm turned black. He depended on his children to pay for groceries and medical expenses.

Strickland eventually got his money back, but in cases like his, “funds that may be needed to pay daily living expenses, including for food, shelter, and medical care, are frozen,” Shoob wrote.

“Defendant’s argument that debtors ought to be able to find out for themselves how to claim exemptions ignores the fact that the law does not require debtors to be notified that there even are exemptions. Debtors cannot be expected to find out how to claim what they do not even know exist,” Shoob wrote. “…It is not reasonable to expect an untutored layperson to be able to discover the procedures for making an exemption claim. …Even if the debtor were to examine the garnishment statute, he or she would find little, if any, guidance regarding how to assert such an exemption.”

The ruling enjoined Gwinnett County from issuing any garnishment summons.

Richard Alexander, Gwinnett’s clerk of courts, was named in the suit. Alexander said he will follow the ruling, but does not know what the rest of the state might do.

“Here, we’ve stopped,” he said. “We won’t be sending any more summons. We won’t disburse funds. We’re going to follow the court’s order.”

Gwinnett had 37 percent of the garnishments in the state in 2013, the last year statewide numbers are available. Its 2014 garnishment filings were up nearly 12 percent from the year before.

Carolyn Carter, an attorney for the National Consumer Law Center, said the ruling will likely require the state legislature to change Georgia’s garnishment law, resulting in fairer procedures for debtors.

Erik Heath, an attorney who represented Strickland, said the case “illustrates what’s wrong with the law.”

“People who have limited means, those benefits can very easily get swooped up into the garnishment process,” he said.

A spokesman for the state attorney general’s office, which argued in favor of the existing law, said officials are still reviewing the decision and had no comment.

Richard Howe, managing partner of the collection firm Howe & Associates, said he does not think the ruling will stick if the state or Gwinnett decides to appeal. Appellate courts have upheld the existing garnishment law in the past, he said.

Howe said he will continue to file garnishments in counties other than Gwinnett.

“This ruling seems too far reaching,” he said. “In my opinion, it still is constitutional.”

For the time being, at least, the halting in Gwinnett will have a positive impact for people whose money would have been at risk, said David Addleton, a consumer lawyer in Macon who has challenged the law before.

“The economy’s going to be helped,” he said. “Real people are going to have more money to spend on their medicines, groceries, utilities. …They will have their money and they will be able to use it.”