Judgment Collection: Fi-Fa’s, Levies and the Collection of Judgments in Georgia - Softcover

TUMLIN, RICKEY E.

Softcover

ISBN 10: 1546242287 ISBN 13: 9781546242284

Publisher: AuthorHouse, 2018

Synopsis

This work is the culmination of over thirty-two years of experience with the Hall County Sheriffs Office and should be on the reference shelf of every sheriffs office, law library, and financial institution in the state of Georgia.

About this title

Excerpt. © Reprinted by permission. All rights reserved.

Judgment Collection

Fi-Fa's, Levies and the Collection of Judgments in Georgia with Forms

By Rickey E. Tumlin

AuthorHouse

Copyright © 2018 Rickey E. Tumlin
All rights reserved.

ISBN: 978-1-5462-4228-4

CHAPTER 1

THE COURTS OF GEORGIA AN OVERVIEW

The state of Georgia is a sovereign entity as outlined by the Constitution of the United States of America and is one of the original thirteen colonies/states. It is governed by a form of democracy. The United States of America is a federal republic. It is a representative form of government, reminiscent of the old Roman senate. The Constitution of the United States is the document embodying the fundamental principles upon which the American republic is conducted. It established the system of federal government that governs our nation.

The Constitution of the United States of America is the ultimate and supreme law of the United States of America. The first ten ammendments to the U.S. Constitution are referred to as the Bill of Rights. The U.S. Constitution is the framework for the organization of the United States government, its underlying infrastructure and for the relationship of the federal government to the states, to citizens, and to all people within the United States. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people themselves. There are many that fail to understand this simple principle.

The courts of Georgia have jurisdiction over specific types of cases as set by the Constitution of the State of Georgia. Courts of limited jurisdiction; the magistrate, probate, juvenile and state courts, hear the traffic, criminal misdemeanor and civil cases involving limited amounts of money and limited writs of execution. The Constitution of the State of Georgia establishes the state court of appeals and the Supreme Court of the State of Georgia.

Many of the cities and towns of this state establish municipal courts to handle traffic offenses; violations of local ordinances, conduct preliminary hearings, and in many cases adjudicate misdemeanor shoplifting and marijuana possession cases. Any cases heard by the Municipal Courts that are not adjudicated, are normally referred onward to the higher courts for adjudication, these higher courts being the state and superior courts of Georgia. Municipal court judges are usually appointed by the mayor or in certain cases may be elected.

Municipal Court judges may adjudicate most misdemeanors without transference to the State Court. This is usually dependent on how the city charter is drawn up. Under circumstances where the defendant demands a jury trial, the case must be transferred to State Court.

Magistrate courts issue arrest warrants, search warrants, conduct motion hearings, adjudicate trover actions, issue dispossessory actions, conduct preliminary/committal hearings, hear county ordinance violations, landlord/tenant disputes, bad checks cases and civil actions of $15,000 or less.

State courts are established by local legislation introduced in the Georgia General Assembly. State court judges are elected to four-year terms and are non-partisan positions. Vacancies in the state court may be filled by appointment by the governor or if the governor so elects, by special election.

Superior Court jurisdiction extends to felony offenses, misdemeanor cases arising from the felony incidents, family law, divorce cases, landline disputes and civil cases involving corporations. Superior Court judgeships are elected non-partisan positions with terms of four years.

Superior court judges are Constitutional Officers and preside over all felony trials. They have exclusive jurisdiction over divorces and may correct any errors made by limited jurisdiction courts, while exercising jurisdiction over both civil and criminal cases. Vacancies in the superior court may be filled by appointment by the governor or if the governor so elects, by special election.

The filling of these vacancies is subject to change by way of legislation. The appellate courts of Georgia review cases that have been tried in the courts of limited jurisdiction and the superior courts to determine that there were no procedural errors or errors of law. If no errors are found the verdict is upheld. In the case where errors are found, the appellate court may elect to overturn and set aside the decision. The verdict may be reversed or it can be returned to the lower court to be retried. The appellate court consists of twelve judges on four panels of three judges each.

Magistrate courts are not courts of record, not normally having court reporters. Magistrate court cases, where the decisions are contested, are normally appealed to the state or superior courts of the county where the magistrate court is located. Superior courts and state courts are both courts of record. If the appellant is dissatisfied with the decision of an appeal to a state court, it may then be appealed on up to the superior court of the county.

The majority of citizens that have business with the courts are usually involved in matters governed by the courts of limited jurisdiction. These are the Magistrate Courts and Municipal Courts of our state, sometimes referred to as 'small claims court' for the civil litigation of lesser amounts. Only a very small percentage of the cases disposed of by the trial courts are appealed to a higher court.

The management of the day-to-day operations of the courts in today's world requires the expertise of a highly professional court administrator and a competent staff of clerks, secretaries and assistants. They have assumed the duties that formerly were handled by executive secretary/office manager of the senior superior court judge. The Administrative Offices of the Courts oversee the appointment of and the operations of the court administrators.

The staff of the Administrative Offices of the Courts oversees the continuing education and training of these judicial officials. These court administrators are diligent in their attempt to coordinate the functions of the court clerks, prosecutors, public defenders, court reporters, courthouse security and use of substitute judges and the trial calendars of sitting judges.

The Judicial Council of Georgia, consisting of twenty-four member judges, guides and controls the Administrative Offices of the Courts. The Council meets a minimum of three times a year to consider new judgeships, budgets and other judicial branch matters.

CHAPTER 2

DUE PROCESS

(Rights to certain legal proceedings)

OBTAINING A JUDGMENT IN A MAGISTRATE COURT

MAGISTRATE COURTS OF GEORGIA

The Magistrate Court is a court of limited jurisdiction, with both civil and criminal jurisdiction and normally not considered to be a court of record. This limited jurisdiction is controlled by the amount of jurisdiction and control extended by the Superior and State Courts. This limited jurisdiction is being expanded upon almost constantly.

Magistrate courts cannot try individuals charged with a felony or with certain misdemeanor offenses. The Magistrate Court does not have jurisdiction over restraining orders, divorce cases; child custody, child visitation and support cases; cases involving real estate, mental incompetence commitments and equity actions, which involve the rights of parties and seek to direct a person to perform a certain act or to refrain from doing an act. These are all reserved for the Superior Courts.

Magistrate courts issue arrest warrants, search warrants, perform weddings, conduct motion hearings, adjudicate trover actions, issue dispossessory actions, conduct most preliminary/committal hearings, hear county ordinance violations, landlord/tenant disputes, bad checks cases and civil actions of $15,000 or less. State courts are established by local legislation introduced in the Georgia General Assembly.

This volume is not intended as any exhaustive treatise on Magistrate Courts or even of civil law in itself. This book deals solely with civil jurisdiction of all courts and the collection of their judgments. Keep abreast of any current legislation regarding the Magistrate Courts. It can be very helpful. The Georgia Civil Practice Act (O.C.G.A. § 9-11-13) governs the seeking of redress in all courts of Georgia.

Magistrate courts issue arrest warrants, search warrants, issue dispossessory actions, writs of execution, conduct preliminary/ committal hearings, hear county ordinance violations, landlord/ tenant disputes, bad check cases and civil actions of $15,000 or less. In some cases smaller municipalities may relegate their court functions to the Magistrate Court in an effort to save money and paperwork, rather than having their own municipal court. This is normally advantageous to both entities. This is usually done on a contractual basis with the Magistrate Court with all fees paid by the municipality going into the county general fund.

The pursuit or seeking of redress is through the judicial procedure allowed and permitted under law. Redress is the means of seeking a remedy or compensation for a civil wrong or loss. This is more commonly called due process. There are established and accepted methods for seeking or pursuing this redress.

A portion of the civil cases that may be resolved in the Magistrate courts involve suits for money owed, claims for damage to persons or property, landlord tenant disputes, foreclosures and repossessions. Magistrate Courts can issue garnishments, writs of possession for personal property and foreclosures of liens upon abandoned motor vehicles.

On July 1, 1985, the Supreme Court of Georgia established a set of rules for each Georgia Court. The Uniform Rules for the Magistrate Courts increased the difficulty and complexity of using the court due to most people not being aware of them. This is compounded by the allowance of changes or modifications on the local level. Anyone anticipating pursuing a case themselves in the magistrate court should obtain and review a copy of these rules. This is not a major effort of any consequence; it just requires some research and a little reading.

The Council of Magistrate Court Judges was created by statute to effectuate the constitutional and statutory responsibilities conferred upon it by law, to further the improvement of the magistrate courts and the administration of justice, to assist the chief magistrates, magistrates, and senior magistrates throughout the state in the execution of their duties, and to promote and assist in the training of chief magistrates, magistrates, and senior magistrates. The Council also assists in standardizing the procedures of the various Magistrate Courts.

Before filing a claim in Magistrate Court, the plaintiff should check with the clerk and review the Uniform Rules and any local changes or additions. Think of instances where a landlord sues tenant or former tenant for damages to the rental property or where an ex-tenant sues the landlord seeking the return of their damage deposit. The overall rules of evidence and conduct will be standardized, but the minor steps and procedures may vary from jurisdiction to jurisdiction.

You should also consider whether a countersuit or counterclaim could possibly be filed against you and the potential consequences. A counterclaim is filed by the person being sued stating that you are in fact indebted to him or her, and that your claim should not be allowed. You should always consider whether the filing of a suit offers you the best option for resolving the dispute. It is often better for the parties to reach an agreement out-of-court when the issues are clear and both the plaintiff and defendant can agree upon a reasonable solution.

Often, the process of mediation offers the best method or medium for resolution. Parties meet with a qualified mediator who listens to both parties and suggests alternatives to lawsuits. Mediation often results in a solution that is better for all parties involved.

Some counties in Georgia have the Judge of the Probate Court performing double duty as the Magistrate Judge. Most counties have one or more associate Magistrates and the Chief Magistrate.

Anyone planning to transact business in the Magistrate Courts should familiarize themselves with the terms and phrases used in the court. A limited list is included in the glossary at the rear of this book. Familiarization with the procedures involved in the filing and proceedings would also be very helpful. A review of the Uniform Rules of the Magistrate Courts would be of necessity here.

CHAPTER 3

COLLECTION OF A JUDGMENT IN MAGISTRATE COURT

What is a judgment?

You first need an understanding of what is a judgment. At the end of a trial the judge or jury will make a decision. The judge will then provide the parties with a written decision called a Judgment. This is not usually immediate. The judgment will most likely be mailed in just a few days or in exceptional cases, have the decision reduced to a written decision immediately and delivered to the plaintiff at once.

The judge may elect to delay the pronouncement of the decision till a later date and simply mail out the judgment. In any case the judgment will most likely be mailed in just a few days. The judgment states specifically who won or lost and the amount of damages (money), attorney's fees or court costs awarded, if any. The Judgment does not state when or how the money will be paid. The methods necessary to collect a judgment are usually vastly understated and require great diligence and perseverance.

You most likely will encounter the terms; judgment enforcement, judgment collection and judgment execution. These are all terms for the same activity; the recovery of your money.

The party to whom the money is owed is called the judgment plaintiff (creditor). The party owing the money is the defendant in judgment (debtor). Judgments are recorded by credit reporting agencies and may affect the debtor's credit rating. It is the creditor's responsibility to collect the Judgment. The creditor may obtain the assistance of the court and the Sheriff with the issuance of the writ of fieri facias.

The creditor may begin the collection process immediately after the Judgment is filed. There are four basic ways for a creditor to collect a Judgment in magistrate court:

• Agreement between the parties

• Garnishment

• Execution of Judgment

• Supplemental proceedings

CASE PREPARATION

When the economy takes a downturn it becomes critical that businesses receive all monies that are due them to simply continue to be able to operate. Whether you call it a depression, a recession or an economic setback, the result is still basically the same. People are losing jobs and the cash flow decreases or ceases for commercial enterprises. When this situation rises to cataclysmic proportions, it usually results in judicial action having to be taken. Some businesses, being slow to act, invariably end up declaring bankruptcy themselves.

At the very outset, before beginning any collection procedures, make sure that you emotions are in check. Begin your collection attempts by contacting the debtor-defendant and ask for payment or to negotiate a reasonable payment schedule. Most business owners/ creditors of long-standing will make every effort to try to work with their patrons in some form of extended payment, when possible.

Failure to reach an amicable resolution costs both the creditor and the debtor when this occurs. When repeated attempts to demand payment produce no positive results and the debtor fails or refuses to comply, it becomes necessary seek to some other recourse. This usually requires the pursuit of redress through legal channels. That is where my experience comes in.

When it becomes apparent that their customers/clients are not going to resolve or pay their just debts, it reaches a point that judicial collection measures become necessary. This process can become very involved and extremely tedious at times. Hopefully this book will be able to help you rectify this problem.

Many small businesses and inexperienced individuals face a common dilemma. Not all businesses or individuals are able to afford an attorney to assist in the collection process, nor are they equipped to handle the process themselves. This publication is not intended to replace the services of an attorney, but to assist the individual in the collection of their own judgments.

So many times the dollar value of a judgment is offset by the expense of collection by an attorney to the point it is simply not fiscally practical to seek redress. The purpose of this book is to help remedy that situation. The hit or miss method of attempting to achieve and collect a judgment can result in frustration and disappointment.

The process of seeking redress can simply reach a point where it is not cost effective or simply impractical for the plaintiff to be able to pursue it him or herself. It is hoped that this book can help to alleviate this problem.

The first order of business in the collection of any debt, through the assistance of the courts, is obtaining a judgment. The courts have set down specific procedures for accomplishing this. The establishing of liability is primary in obtaining a judgment.

(Continues...)

Excerpted from Judgment Collection by Rickey E. Tumlin. Copyright © 2018 Rickey E. Tumlin. Excerpted by permission of AuthorHouse.
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Edition details

• Publisher: AuthorHouse
• Publication date: 2018
• Language: English
• ISBN 10: 1546242287
• ISBN 13: 9781546242284
• Binding: Paperback
• Number of pages: 288