Strickland v. Alexander

• Decision Date: 09 November 2015
• Docket Number: CIVIL ACTION NO. 1: 12-CV-02735-MHS
• Citation: 162 F.Supp.3d 1302
• Parties: Tony W. Strickland, Plaintiff, v. Richard T. Alexander, Clerk of Court of the State Court of Gwinnett County, Georgia, Defendant.
• Court: U.S. District Court — Northern District of Georgia

162 F.Supp.3d 1302

Tony W. Strickland, Plaintiff,

v.Richard T. Alexander, Clerk of Court of the State Court of Gwinnett County, Georgia, Defendant.

CIVIL ACTION NO. 1: 12-CV-02735-MHS

United States District Court, N.D. Georgia, Atlanta Division.

Signed November 9, 2015

Filed November 10, 2015

David A. Webster, David A. Webster, Attorney at Law, Donald Maurice Coleman, Jon Erik Heath, John Ross Bartholomew, IV, Atlanta Legal Aid Society, Inc., Atlanta, GA, for Plaintiff.

ORDER

Marvin H. Shoob

, Senior Judge, United States District Court, Northern District of Georgia

Before the Court is intervenor State of Georgia's motion to alter or amend judgment. For the following reasons, the motion is granted in part, denied as moot in part, and denied in part.

Discussion¹

Citing additional authority that was not previously brought to the Court's attention, the State of Georgia asks the Court to alter or amend its Order and Judgment of September 8, 2015, to declare that Georgia law provides timely procedures for debtors to claim exemptions in post-judgment garnishment actions.² Specifically, the State contends that this additional authority establishes (1) that a debtor may assert an exemption claim under O.C.G.A. § 18–4–93

, which provides for a hearing within ten days; (2) that the same ten-day hearing requirement also applies to an exemption claim filed pursuant to the generic claims procedure set out in O.C.G.A. § 18–4–95 ; and (3) that a debtor may also assert an exemption claim by filing a motion to dismiss under the Georgia Civil Practice Act, on which the court can order a hearing within ten days. The Court concludes that none of the cases cited by the State establishes that either the post-judgment garnishment statute or the Georgia Civil Practice Act provides timely procedures for adjudicating exemption claims. Therefore, the Court denies the State's motion.³

I. Assertion of Exemption Claims Under O.C.G.A. § 18–4–93

In its initial brief, the State argued that Mr. Strickland could have asserted his exemption claim using the traverse procedure set out in O.C.G.A. § 18–4–93

, which provides for a hearing within ten days, and cited the Georgia Court of Appeals' decision in Citizens Bank of Ashburn v. Shingler, 173 Ga.App. 511, 326 S.E.2d 861 (1985), in support. The Court rejected this argument, pointing out that Section 18–4–93 expressly limits the grounds for filing a traverse to those set out in O.C.G.A. § 18–4–65, which does not include exemption-based challenges. Order of Sept. 8, 2015 [Doc. 105], at 43. The Court noted that Shingler did not address the issue of the appropriate procedure for asserting an exemption claim, and thus provided no authority for the State's interpretation of the statute, which was “contrary to its plain terms.” Id.

In its motion to alter or amend, the State cites three additional cases, which it contends show that a debtor may assert an exemption claim by filing a traverse to the creditor's affidavit: the Georgia Supreme Court's decision in Harp v. Winkles, 255 Ga. 42, 335 S.E.2d 292 (1985)

; the Georgia Court of Appeals' decision in Tate v. Burns, 172 Ga.App. 688, 324 S.E.2d 485 (1984) ; and the district court's decision in Landmark Capital Invs., Inc. v. Savannah Nephrology, No. 4:11–cv–291, 2012 U.S. Dist. LEXIS 42886 (S.D.Ga. Mar. 28, 2012). None of these cases, however, supports the State's argument.

In Harp,

the debtor filed a traverse to the creditor's affidavit asserting the emergency responder exemption under O.C.G.A. § 18–4–21. 255 Ga. at 43, 335 S.E.2d 292. The court's opinion focused solely on whether the exemption was applicable and constitutional. Id. No issue was raised as to whether a traverse to the creditor's affidavit was the appropriate procedure for raising an exemption claim, and the court did not analyze or even cite the post-judgment garnishment statute. Thus, Harp, like Shingler, provides no support for an interpretation of the statute that is contrary to its plain terms.

In Tate,

the debtor did not assert an exemption claim at all. Instead, he filed a traverse asserting that the garnishment action violated his rights under O.C.G.A. § 9–11–62(a), which provides that no proceedings to enforce a judgment may be taken until the expiration of ten days after its entry. 172 Ga.App. at 688, 324 S.E.2d 485. Unlike an exemption claim, this is a matter in bar of the judgment, which is expressly recognized as one of the grounds on which a debtor may file a traverse. See O.C.G.A. § 18–4–65(a). Thus, Tate says nothing about the availability of the traverse procedure to assert an exemption.

Similarly, in Landmark, the debtor did not assert an exemption claim but instead filed a traverse alleging that the post-judgment garnishment statute was unconstitutional. 2012 U.S. Dist. LEXIS 42886, at *1. The court held that a traverse was the appropriate vehicle to raise such a constitutional challenge, but said nothing about the availability of the procedure to assert an exemption. Id.

II. Application of Ten–Day Hearing Requirement to Exemption Claims Under O.C.G.A. § 18–4–95

In its initial brief, the State also argued that the generic claims procedure set out in O.C.G.A. § 18–4–95

provides a sufficiently expeditious process for resolving exemption claims. The Court rejected this argument, citing the Georgia Court of Appeals' decision in Terrell v. Fuller, 160 Ga.App. 56, 286 S.E.2d 50 (1981). In Terrell, the court held that to assert an exemption claim using this procedure, a debtor must first file a claim under Section 18–4–95 and then file a traverse of the garnishee's answer under O.C.G.A. § 18–4–86. 160 Ga.App. at 58, 286 S.E.2d 50. Because the garnishee is not permitted to file its answer until at least 30 days after being served with the summons of garnishment and may wait as long as 45 days before doing so, and because there is no statutory requirement that the court conduct an expedited hearing on an exemption claim under Section 18–4–95, nor any requirement that the garnished property be promptly returned if the exemption claim is ultimately upheld, the Court concluded that “[w]hatever the outer constitutional time limit may be to resolve exemption claims, the delay inherent in this procedure far exceeds it.” Order of Sept. 8, 2015 [Doc. 105], at 45.

In its motion to alter or amend, the State argues that in A.M. Buckler & Assocs., Inc. v. Sanders, 305 Ga.App. 704, 700 S.E.2d 701 (2010)

, the Georgia Court of Appeals abandoned the two-step process set out in Terrell and held that the ten-day hearing requirement of O.C.G.A. § 18–4–93 applies not only to a debtor's traverse of a creditor's affidavit but also to claims filed pursuant to O.C.G.A. § 18–4–95. The Court finds this argument without merit.

First, in Buckler,

the claimant complied with the two-step process in Terrell by filing both a verified claim to the funds in the garnishment action and a traverse of the garnishee's answer.⁴ 305 Ga.App. at 707, 700 S.E.2d 701. Nothing in the court's opinion suggests any disagreement with or abandonment of Terrell.

Second, the Buckler

court did not hold that the ten-day hearing requirement for a traverse filed under Section 18–4–93 also applies to claims filed under Section 18–4–95. The State's argument rests entirely on the court's citation of Section 18–4–93 in support of its statement that “[i]f a defendant or other claimant files a traverse or adverse claim in a garnishment proceeding, the trial court must conduct an evidentiary hearing to determine the rights of the parties to the money or other property at issue.” Buckler, 305 Ga.App. at 705, 700 S.E.2d 701 (citations omitted). The State, however, ignores the fact that, in addition to citing Section 18–4–93, which by its terms applies only to a traverse, the court also cited Akridge v. Silva, 298 Ga.App. 862, 681 S.E.2d 667 (2009), which involved a claim filed under Section 18–4–95. The only reasonable inference that can be drawn is that these two citations were intended to support the court's statement with respect to traverses and claims, respectively. There is no indication whatsoever that the court intended to rewrite the statute by grafting the ten-day hearing requirement of Section 18–4–93

onto the claims procedure set out in Section 18–4–95.

III. Motion to Dismiss Under Georgia Civil Practice Act

Finally, the State argues that a debtor has yet another option to assert an exemption claim in a garnishment proceeding, which it failed to mention in its initial brief. Citing the Georgia Court of Appeals' decision in Birchfield v. Birchfield, 165 Ga.App. 101, 299 S.E.2d 409 (1983)

, the State argues that debtors may assert an exemption claim by filing a motion to dismiss under the Georgia Civil Practice Act. In Birchfield, an ex-wife initiated a continuing garnishment action in a Georgia superior court seeking to recover on a default judgment for an arrearage of child support and alimony payments. 165 Ga.App. at 101, 299 S.E.2d 409. The garnishee was a military finance center based in Missouri from which the defendant, a resident of California, received payments of retirement benefits. Id. After the garnishee answered by paying certain sums into the registry of the trial court, the defendant moved to dismiss for lack of subject matter jurisdiction and lack of jurisdiction over his person and property. Id. The trial court granted the motion to dismiss for “lack of a res within the forum state that is subject to garnishment.” Id. The court of appeals affirmed the dismissal on the grounds that the retirement benefits paid into court were exempt from garnishment under O.C.G.A. § 18–4–22, which exempts such funds from garnishment until they are in the hands of the member or beneficiary of the pension or retirement program. Id. at 102, 299 S.E.2d 409. Similarly, the State argues, Mr. Strickland could have moved to dismiss the garnishment action in the State Court of Gwinnett County on the grounds that the garnished funds were exempt workers'...