I just received a certified letter that included wage garnishment affidavit and summons. Checked with the court and they stated a default judgment had been granted in 2009. It was also stated a private process server performed a notorious service on a balding black male. I have no idea who this balding black male is as the only ones living in my house in 2009 were me and my 3 children. What is it I need to do since this is very disconcerting as it seems anyone can say they served you and you have no idea, which results in a default judgment?
3 Answers from Attorneys
You need to file a traverse to object to the garnishment and file a motion to reopen the case. You should retain counsel who practices in your county and the county where the judgment obtained.
I agree with Attorney McGill. You need to file a traverse to the wage garnishment and a motion to open the judgment if you still can do that. See OCGA § 9-11-60 (statute is below). You only have 3 years and you indicate the judgment was entered in 2009.
What is the judgment for? A credit card debt perhaps? Its kind of strange that you had no knowledge of the judgment if you were in the same place. It makes me wonder if you were the victim of identity theft or if the law firm just got the wrong person. What I would do is go to the court in the county where the judgment was rendered and make a complete copy of the file. Include the complete summons and complaint, including the return of service and any attachments to the complaint, the motion for default, order entering judgment and the wage garnishment papers. Take everything to a local lawyer who specializes in general civil litigation or if its for a credit card debt to a lawyer familiar with defense of these actions.
If review of the file shows that the judgment was entered against you and you have no recollection of this (like if its for a credit card debt for a card you never had), then I would also get a free copy of your credit report from www.annualcreditreport.com and review the report to see if any other credit card accounts were created in your name too.
If you still can file the motion to open then you need to do it along with the traverse. If the law firm named the wrong person - that is a different issue. Perhaps the lawyer can help you get this straightened out. I raise this as it happened to a client of mine - the client had a judgment against her that was proper but the law firm tried to garnish the wages of someone else with the same name and my client was retired and did not work. So this does happen.
§ 9-11-60 - Relief from judgments
(a) Collateral attack. A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.
(b) Methods of direct attack. A judgment may be attacked by motion for a new trial or motion to set aside. Judgments may be attacked by motion only in the court of rendition.
(c) Motion for new trial. A motion for new trial must be predicated upon some intrinsic defect which does not appear upon the face of the record or pleadings.
(d) Motion to set aside. A motion to set aside may be brought to set aside a judgment based upon:
(1) Lack of jurisdiction over the person or the subject matter;
(2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or
(3) A nonamendable defect which appears upon the face of the record or pleadings. Under this paragraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed.
(e) Complaint in equity. The use of a complaint in equity to set aside a judgment is prohibited.
(f) Procedure; time of relief. Reasonable notice shall be afforded the parties on all motions. Motions to set aside judgments may be served by any means by which an original complaint may be legally served if it cannot be legally served as any other motion. A judgment void because of lack of jurisdiction of the person or subject matter may be attacked at any time. Motions for new trial must be brought within the time prescribed by law. In all other instances, all motions to set aside judgments shall be brought within three years from entry of the judgment complained of.
(g) Clerical mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.
(h) Law of the case rule. The law of the case rule is abolished; but generally judgments and orders shall not be set aside or modified without just cause and, in setting aside or otherwise modifying judgments and orders, the court shall consider whether rights have vested thereunder and whether or not innocent parties would be injured thereby; provided, however, that any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.
As the others stated, traverse, then a motion to set aside the Judgement in the court where is was entered. You are going to need an attorney to help you do this. In the end; however, if the debt was debt you actually owed, and there are no other defenses to the amount owed, you may end up right back where you started from. Therefore, when you meet with an attorney, go through all of the facts and see if there are any defenses so that you can plan what to do when and if the Judgement is reversed.
The answer to this questions is informational only, and it is not intended to be legal advise. Only an attorney who has met with you and gone over all of the specific facts of your case can give you legal advice upon which you should rely. Follow up questions are welcome via the email below, and our firm offers free consultations via phone or in person. We have convenient offices in Winder, Jefferson, and Gainesville Georgia, and you should feel free to contact our office at (770) 307-4899, via email at [email protected], or through our website: hicksmasseyandgardner.com