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

By Rickey E. Tumlin

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.

• Language: English
• Publisher: AuthorHouse
• Release date: May 16, 2018
• ISBN: 9781546242277

Rickey E. Tumlin

The author is a native and lifelong resident of Hall County, Georgia. He was educated in Gainesville and Hall County public schools. Rickey is married to the former Florence Patricia Turk Hand, a 1988 graduate of Brenau University, the Professional College, receiving a B.S. degree with majors in both Criminal Justice and Public Administration, and graduated with honors. A Georgia P.O.S.T. certified, career veteran of more than 32 years with the Hall County Sheriff's Office, having attended and successfully completed the required mandate training at the Georgia Police Academy in Atlanta, GA. Having retired from a career of more than 32 years with the Hall County Georgia Sheriff's Office with service spanning over three years as a jailer, more than 11 years on road patrol and over 18 years as a Court Services Officer, gaining direct hands on experience with civil process, writs and other attachments and has held supervisory positions in three Divisions within the Hall County Sheriff's Office. He is now operating his own business; CIVIL PROCESS SERVERS OF NORTHEAST GEORGIA providing free-lance services as a special process server to the attorneys in the area.

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© 2018 Rickey E. Tumlin. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

Published by AuthorHouse 05/14/2018

ISBN: 978-1-5462-4228-4 (sc)

ISBN: 978-1-5462-4226-0 (hc)

ISBN: 978-1-5462-4227-7 (e)

Library of Congress Control Number: 2018905804

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and such images are being used for illustrative purposes only.

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Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

Contents

Acknowledgement

Disclaimer

Introduction

2010 Georgia Code

The Courts Of Georgia

Due Process

Collection Of A Judgment In Magistrate Court

Venue

Response To The Complaint

Establishing And Proving Defendant Liability

General Principles Of Liability

What Is A Judgment?

Judgment Colleciton

Writ Of Fieri Facias

Seizure Of Property In Other Counties

O.C.G.A. § 7-4-12 (2008)

Duties Of The Sheriff

Record Keeping

Executing A Levy

Prior Outstanding Liens

Location Of Assets

The Levy

Police Report Writing

Constitutional Protections

Exceptions To Levy And Sale:

Exceptions To Levy And Sale:

Related Judicial Decisions

Safety Practices

Georgia Fraudulent Transfer Cases:

Alternative Methods Of Collection

Garnishment

Levy On Personal Property

Interrogatories

Statute Of Limitations On Judgments

Registration And Licensing Of Motor Vehicles

Collections Agents

Perfecting The Levy

Sheriff’s Sale (Judicial Sale)

Conducting The Sheriff’s Sale

The Auction

Post Sale Responsibilities

Keeping The Judgment Alive

Tools For The Collection Of Judgments

A Condensation Of Critical Points In Collecting A Judgment

Debt Collections

Judgment Collection As A Business Opportunity

Useful Websites

In Closing

The Peace Officers Association Of Georgia

Forms

Fi-Fa Collection Procedures

Glossary Of Terms

About The Author

Notes

ACKNOWLEDGEMENT

The author would like to express his appreciation to former Captain Buddy M. Waldrep, Hall County Sheriff’s Office Retired. Without Captain Waldrep’s professional knowledge, patience and guidance, the author would not have gained the knowledge, experience and training culminated in this work. Captain Waldrep was the author’s division commander and immediate supervisor for over twelve years.

The author would like to further thank everyone concerned, for their efforts involved in the production of related information from which the author has been trained over the course of his career. The reception my book received during its initial outing has encouraged me to review and revise the work and submit it for publishing as a revised second edition.

An invitation for future collaboration on revisions and updates is extended to anyone experienced in the field able to extend the availability of knowledge and expertise. The author is willing to collaborate with anyone wishing to increase the range of the information contained within, to the betterment of all concerned.

Dedicated to my late wife, Florence H. Tumlin

And to all law enforcement professionals

responsible for the execution of writs

and the performance of levies.

My heartfelt thanks to the people that have most positively influenced my life;

Frank C. Lathrop, Sr. (U.S.A.F., retired),

The late Boyd B. Hulsey (Hall County S.O. retired),

Buddy M. Waldrep (Hall County S.O. retired),

Leroy W. Robinson, Jr., attorney at law,

Florence H. Tumlin (my late wife), and

The late Edward G. Tumlin and Edith G. Tumlin (my parents).

The late Boyd B. Hulsey, for being such a role model of honesty and integrity, Buddy Waldrep, for sharing his knowledge of judgment collection, his dedication and work ethic, Leroy W. Robinson, Jr., for inspiring and encouraging me to enroll in college and pursue my degree, Florence, my wife, for her loving support, encouragement and unfailing confidence in me, Frank C. Lathrop, Sr., lifelong friend, for his friendship, inspiration and as a positive role model of honesty, integrity and ethics, for his moral support and encouragement in seeking and achieving my college degree and my deceased parents, the late Edward G. Tumlin and Edith G. Tumlin, for my upbringing and instilling in me a firm, solid work ethic.

It has been my purpose in life to make a positive difference. By my choice of career and the publication of my books and articles, I hope that I have achieved my goal.

DISCLAIMER

The author has generated this publication in an effort to provide a reference source of accurate and authoritative information concerning the collection of judgments. The author is not an attorney and does not pretend to have all inclusive nor comprehensive knowledge of the subject matter. The author does have extensive training, education and experience in the field. The author does not and is not engaging in the practice of providing legal advice.

The information contained in this publication is not intended to replace the services of an attorney. However, it is designed and intended to provide introductory familiarization with tools and methods of collection otherwise not immediately available to the public.

If you’re looking to be able to go into a courtroom and come across as an attorney on television or in the movies, this is NOT the book for you. As a layperson, you can achieve what you had been unable to do before. You can collect your delinquent debts and judgments. Read carefully and pay attention to what is going on around you.

This book will give you an advantage over the layperson that is trying to beat you out of your just and legitimate debts. This compilation is derived from the author’s research, combined with many years of training and experience in this field. It is hoped that the information provided in this volume will become a ready resource for the uninitiated in the collection of judgments. If legal advice or any other expert advice is required, you should seek the services of a competent attorney or other professional.

The information contained in this volume is believed to be accurate and up to date, but not guaranteed to have all the latest decisions. Any person or entity, which relies on information obtained solely from this publication, does so at his or her own risk. The author assumes no liability for actions taken by persons relying solely on the information contained herein.

Policies and procedures vary from state to state. Although all the states rely on old English common law and a lot of states have had similar issues settled by case law, it would be best not to rely solely on information obtained from this publication in executing a levy in states other than Georgia.

Even though a goodly portion of this information is generic and could be applied from one state to another, it would be advisable to consult your county attorney before attempting to execute a levy and seizure in a state other than Georgia, using these guidelines. The principles are generally the same, but applicable statutes and case law are varied. Additional and separate research should be conducted first.

The author neither assumes nor claims any responsibility for any mistakes in spelling, grammar, punctuation, or typesetting mistakes involved in the printing, publication and manufacture of this publication. Every effort has been made toward the accuracy of the information contained herein. All rights are reserved for the reproduction of this material contained herein.

Certain non-gender-based pronouns have been used to denote and encompass the corporate, gender-based and plural defendants. These pronouns may appear to be grammatically incorrect, but are used to convey a generic message.

INTRODUCTION

JUDGMENT COLLECTION ~ Everyone desires to recover their bad debts and court judgments owed to them. When you walk out of the courtroom with judgment in your favor, don’t expect to immediately receive payment. The courts and sheriffs will help you collect, but don’t expect them to do it for you. You must do it yourself. This is entirely justified and lawful. Not everyone knows how to collect and enforce their judgment.

Near eighty percent of all judgments are never collected. The design and intent of these laws are to provide assistance to a plaintiff in the collection of legitimate debts. The courts are not intended to do the work for them, nor to punish the defendant, except in the case of punitive damages awarded. I hope to be the one to help you learn how to collect with the publication of this book.

There have been way too many businesses to count that have had to declare bankruptcy or simply close up shop due to the overextension of credit to folks that either could not or would not pay their just debts. This book is intended to give you a ‘leg-up’ in the world of litigation and collection.

No one should expect to be able to practice law after the reading of this book, but with the careful administering and application of the information contained herein should be able to adequately pursue the collection of their individual judgments. There are many steps in the judgment collection process where that if you screw up, you just have to start over and be a little more devious or cautious. If you screw up the procedures in obtaining the judgment, the magistrate may give a directed judgment in favor of the defendant. It is the responsibility of the plaintiff to do all research in the location of any property subject to potential seizure and the location of the defendant.

These books noted in this volume are THE books to have to enable you to collect your court judgments. The authors’ backgrounds and credentials make them the authorities on the subject. This particular book is a manual that takes virtually all the complicated legalese and lays it all out in a manner that most anyone should be able to understand. Hopefully it will be helpful in your understanding of the laws and principles related to judgment collection.

It is the author’s opinion that this is a reference volume deserving of being on the shelf of every Sheriff’s office and financial institution in the state of Georgia. The author has found the other publications referenced in this volume to have been resources of significant assistance. Debt collection can be a fascinating field of endeavor, while being lucrative in the process. The successful achievement in the recovery of a judgment is not only rewarding, but also very satisfying.

The principles and methods applied in this volume are extremely helpful, a wonderful investment in the recovering of your judgments, that will pay for itself the first time you successfully follow the guide. The process of obtaining a judgment requires preparation, self-control and some measure of legal expertise. The execution of a successful levy and the satisfaction of the judgment require patience, perseverance and sometimes a certain amount of compromise. It doesn’t hurt to be a little wily.

No matter how successful the efforts in obtaining the judgment, it is useless if you are unable to collect it. Hopefully, with the help of this book, you will be able to collect.

Many officers express ambivalent feelings towards the collection of judgments. A hatred of the trouble they cause for them, yet a feeling of satisfaction when they are successful in assisting a citizen in the successful satisfaction of a judgment. Sometime it is hard to judge exactly what their true feelings about judgments are. When you have received the assistance of an officer in the collection of your judgment, send a letter of appreciation to his department head; show that you recognize their efforts and expertise.

For those wishing to start their own collections business, this book would be instrumental. The tips and instructions are invaluable. There are other books available on the subject of starting a collection firm, but this one gives you the meat and potatoes.

The author has tried to provide practical and clear information in an effort to eliminate wasted time, effort and expense. This work is intended to enable the judgment plaintiff to access resources that may facilitate rapid and successful collection of the judgment.

Though much of the laws, decisions and practices exist in other states under their particular statutes and decisions, this book is written and compiled from the perspective of the collection of judgments in Georgia. The principles, processes and methods contained herein could assuredly be applied to most cases in other states, but each state has different statutes, case laws and decisions that would be applicable to their particular state. This volume can still provide methods viable in other states, it just that different statutes and case laws apply.

The need has arisen for a readily available resource of information for the collection of judgments styled and written for the layperson. To take advantage of the procedures, you have to understand them. Attorneys have ready access to their law libraries and consultation with fellow practitioners. Professional collection agencies have the advantage of years of experience and the resource of their company attorney.

It has long been the opinion of the author that you should make the plaintiff as informed as possible. A little education in the beginning can avert much explanation later. The more informed the plaintiff, the more likely they are to make an educated and informed decision, rather than on impulse. Impulse decisions can result in catastrophe.

Some reference is made to decisions based on policy established by the Hall County Sheriff’s Office over the author’s many years of employment and may not be totally acceptable by other jurisdictions. The legality is still sound, it is the matter of individual departmental policy that would possibly affect particular methods that may vary. Any question on this issue should be referred to your department head, local county attorney, or the individual issuing magistrates/judges.

By publication of this work, it has been the author’s aim to facilitate the timely and uneventful, but successful collection of judgments. To be as beneficial as possible, the author has attempted to encompass as much as possible the experience gained through his more than thirty-two years with the Hall County Sheriff’s Office. Any redundancy in the text has been intentional to emphasize caution and safety, or where the redundancy occurs to clarify a separate phase or act.

The task of successfully collecting a judgment can be very arduous. It can be highly time-consuming and even taxing on your financial resources. The task requires effort patience, stamina and resilience. In some cases even the most diligent of efforts are not rewarded. It is a very fulfilling and rewarding endeavor, while remaining a very serious pursuit, to achieve the successful collection of a judgment.

It is hoped that this book provides sufficient hints, clues and suggestions to assist the judgment plaintiff and the levying officer in their efforts. The author encourages the networking of officers from one agency to another, to achieve a higher level of competency in the collection of judgments.

No prudent individual will set out to fail. Sufficient preparation will set the stage for success. It is the hope of the author to be of assistance by providing some leads in the seeking out of the information required to successfully collect the judgment. The judicious use of this book and others referenced herein should help to streamline the process.

Collection procedures are a legal means for creditors to obtain payment from debtors. Many plaintiffs will most likely encounter a situation where they have received a judgment, but the judgment debtor is not willing to pay. It is precisely this situation for which collection procedures were created.

There are principally three collection devices that are used in Georgia which include attachment, garnishment and execution & levy. The goal of this bibliography is to provide a basic understanding and a starting point for researching and utilizing these different collection procedures in Georgia.

Attachment is the judicial seizing of a person’s property to secure a judgment or to be sold in satisfaction of a judgment. In Georgia, the principal form of attachment used is the provision attachment. A provisional attachment is a prejudgment attachment in which the debtor’s property is seized so that if the creditor ultimately prevails, the creditor will be assured of recovering on the judgment through the sale of the seized property. Provisional attachments are usually issued in a case where the defendant may dispose of the property or attempt to remove it from the jurisdiction of the court.

Garnishment is a judicial proceeding in which a plaintiff asks the court to order a third party who is indebted to or is bailee for the debtor to turn over to the plaintiff any of the debtor’s property (such as wages or bank accounts) held by that third party.

Execution and levy is a post-judgment device where the court issues a writ of execution (commonly referred to as a fieri facias or fi fa) which authorizes the sheriff to seize and sell property of the debtor to satisfy the amount owed on the judgment. Recording of the fi fa in the general execution docket in the county where the defendant owns property creates a lien on all real property in the county.

In order to properly utilize these collection procedures it is necessary to understand the proper process, limitations and other qualifications on using the collection device. Usually highly pertinent and relevant questions will arise that need to be addressed. These will include: when may a collection procedure be brought, what grounds are sufficient to invoke the collection procedure, what property is subject to the collection procedure?

Each of these procedures is governed by statutes and case law, thus many times reading the relevant related statutes will answer most questions. Secondary materials and resources provide an easier to understand and sometimes more thorough explanation on how to use the different collections procedures.

The following section does not apply to judgment collection, but is included as an informative matter. This may be helpful to those persons seeking to obtain certification as a process server in the state of Georgia. It would still be advisable to check with your local sheriff’s office to see if they have local ordinances governing the licensing and certification of judgment collectors

2010 Georgia Code

TITLE 9 - CIVIL PRACTICE CHAPTER 11 - CIVIL PRACTICE ACT ARTICLE 2 - COMMENCEMENT OF ACTION AND SERVICE

O.C.G.A. § 9-11-4.1 - Certified process servers; procedure for becoming a certified process server; defining crime of impersonating a process server; punishment; sunset

(A) Certified process servers. A person at least 18 years of age who files with a sheriff of any county of this state an application stating that the movant complies with this Code section and any procedures and requirements set forth in any rules or regulations promulgated by the Judicial Council of Georgia regarding this Code section shall, absent good cause shown, be certified as a process server. Such certification shall be effective for a period of three years or until such approval is withdrawn by a superior court judge upon good cause shown, whichever shall first occur. Such certified process server shall be entitled to serve in such capacity for any court of the state, anywhere within the state, provided that the sheriff of the county for which process is to be served allows such servers to serve process in such county.

(B) Certification procedures.

(1) Any person seeking certification under this Code section shall upon applying for certification present evidence that he or she:

(a) Has undergone a criminal record check based on fingerprints and has never been convicted of a felony or of impersonating a peace officer or other public officer or employee under Code Section 16-10-23;

(b) Completed a 12 hour course of instruction relating to service of process which course has been approved by the Administrative Office of the Courts in consultation with the Georgia Sheriffs’ Association;

(c) Passed a test approved by the Administrative Office of the Courts which will measure the applicant’s knowledge of state law regarding serving of process and other papers on various entities and persons;

(d) Obtained a commercial surety bond or policy of commercial insurance conditioned to protect members of the public and persons employing the certified process server against any damage arising from any actionable misconduct, error, or omission on the part of the applicant while serving as a certified process server; and

(e) Is a citizen of the United States.

(2) A sheriff of any county of this state shall review the application, test score, criminal record check, and such other information or documentation as required by that sheriff and determine whether the applicant shall be approved for certification and authorized to act as a process server in this state.

(3) Upon approval the applicant shall complete a written oath as follows: I do solemnly swear (or affirm) that I will conduct myself as a process server truly and honestly, justly and uprightly, and according to law; and that I will support the Constitution of the State of Georgia and the Constitution of the United States. I further swear (or affirm) that I will not serve any papers or process in any action where I have a financial or personal interest in the outcome of the matter or where any person to whom I am related by blood or marriage has such an interest.

(c) Renewal and revocation of certification. A certified process server shall be required to renew his or her certification every three years. Any certified process server failing to renew his or her certification shall no longer be approved to serve as a certified process server. At the time of renewal, the