JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Bank Deposits
• Alimony

RESEARCH REFERENCES

ALR. - Acceptance of cashier's check from debtor as absolute or conditional payment, 36 A.L.R. 470 ; 42 A.L.R. 1353 , 45 A.L.R. 1487 .

Title to commercial paper deposited by customer of bank to his account, 99 A.L.R. 486 .

What is an action for "debt" within attachment or garnishment statute, 12 A.L.R.2d 787.

Rule denying relief to one who conveyed his property to defraud his creditors as applicable where the threatened claim which occasioned the conveyance was paid or was never established, 21 A.L.R.2d 589; 6 A.L.R.4th 862.

Creditor's acceptance of obligation of third person as constituting novation, 61 A.L.R.2d 755.

Unsolicited mailing, distribution, house call, or telephone call as invasion of privacy, 56 A.L.R.3d 457.

Liability of creditor for excessive attachment or garnishment, 56 A.L.R.3d 493.

Rule denying recovery of property to one who conveyed to defraud creditors as applicable where the claim which motivated the conveyance was never established, 6 A.L.R.4th 862.

Spouse's liability, after divorce, for community debt contracted by other spouse during marriage, 20 A.L.R.4th 211.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Limitation on Compulsory Election

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Interests in Estates

RESEARCH REFERENCES

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 167.

ALR. - Creditor's knowledge that stock is unpaid as affecting stockholders' liability, 7 A.L.R. 972 ; 69 A.L.R. 881 .

Valuation of notes and accounts receivable in determining question of insolvency or bankruptcy, 133 A.L.R. 1274 .

Jurisdiction, and propriety of its exercise, to require real property in another state or country to be applied in satisfaction of debt (including the setting aside of a fraudulent conveyance thereof), 144 A.L.R. 646 .

Right of creditors of life insured as to options or other benefits available to him during his lifetime, 37 A.L.R.2d 268.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Actions

RESEARCH REFERENCES

C.J.S. - 37 C.J.S., Fraudulent Conveyances, §§ 1, 150 et seq.

ALR. - Larceny or embezzlement as affected by purpose to take or retain property in payment of, or as security for, a claim, 13 A.L.R. 142 ; 116 A.L.R. 997 .

Availability of judgment under which exempt property has been seized as a set-off or counterclaim against claim based on the wrongful seizure, 20 A.L.R. 276 .

Attachment or execution creditor as purchaser within rule that first of two purchasers to obtain possession will prevail, 21 A.L.R. 1031 .

Right of creditor to interest after bankruptcy, declared insolvency, or appointment of receiver, where assets are more than sufficient to pay the principal of all claims, 39 A.L.R. 457 ; 44 A.L.R. 1170 .

Property covered by power of appointment as subject to claims of donee's creditors, 121 A.L.R. 803 .

Right of creditors in respect of property gratuitously conveyed or transferred to a third person for alleged benefit of debtor, 147 A.L.R. 1160 .

Purchase of annuity by debtor as fraud on creditors, 154 A.L.R. 727 .

Construction and effect of provision in note for "renewal until paid," and the like, 35 A.L.R.2d 1090.

Conveyance or transfer in consideration of legal services, rendered or to be rendered, as fraudulent as against creditors, 45 A.L.R.2d 500.

Exemption of proceeds of national service life insurance from claims of creditors, 54 A.L.R.2d 1335.

Right of creditor to set up statute of limitations against other creditors of his debtor, 71 A.L.R.2d 1049.

Unsolicited mailing, distribution, house call, or telephone call as invasion of privacy, 56 A.L.R.3d 457.

Purchase of annuity by debtor as fraud on creditors, 74 A.L.R.6th 549.

Creditor's right to have bankruptcy discharge of individual debtor revoked, vacated, and set aside, 138 A.L.R. Fed 253.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Judgments
• Actions

RESEARCH REFERENCES

Am. Jur. 2d. - 21 Am. Jur. 2d, Creditor's Bills, §§ 3, 4.

37 Am. Jur. 2d, Fraud and Deceit, § 497.

C.J.S. - 37 C.J.S., Fraudulent Conveyances, §§ 150 et seq.

ALR. - Creditor's receipt of proceeds of conveyance or transfer by debtor as estopping him to claim that conveyance or transfer was fraudulent, 9 A.L.R. 358 .

Necessity of exhausting remedies against other judgment debtor before bringing suit to set aside conveyance as fraudulent, 22 A.L.R. 200 .

Right of creditor or one representing him to recover money paid or property transferred by debtor on illegal consideration, 34 A.L.R. 1297 .

Delivery of key as satisfying condition of immediate delivery and actual or continued change of possession to uphold sale of personal property against subsequent purchaser or third persons generally, 56 A.L.R. 518 .

Absolute conveyance or transfer with secret reservation as fraudulent per se as against creditors, 68 A.L.R. 306 .

Joinder of grantees or transferees in different conveyances or transfers in suit to avoid them as in fraud of creditors, 69 A.L.R. 229 .

When statute of limitations or laches commences to run against action to set aside conveyance or transfer in fraud of creditors, 76 A.L.R. 864 ; 100 A.L.R.2d 1094.

Remedies of creditors of insolvent decedent's estate where other creditors have received excessive payments, 77 A.L.R. 981 .

Validity as against creditors of conveyance in trust for settlor for life with remainder to his appointees, 93 A.L.R. 1211 .

Right of creditor of decedent, before perfecting his claim or after loss of recourse against decedent's estate, to pursue remedy against property conveyed by the decedent in fraud of his creditors, 103 A.L.R. 555 .

Fraud of judgment debtor in concealing assets or misrepresenting his financial condition as affecting failure to issue execution or revive judgment within the statutory period or as ground of action for fraud and deceit causing loss of legal remedy on the judgment, 104 A.L.R. 214 .

Decree in suit by judgment creditor to set aside conveyance in fraud of creditors as bar to another suit for same purpose in respect of another conveyance, 108 A.L.R. 699 .

Succession, estate, or gift tax in respect of or as affected by conveyance or transfer restoring to original owner property transferred by him to defraud or delay creditors, 108 A.L.R. 1508 .

Criterion of jurisdictional amount in action in form of creditors' bill or suit to avoid conveyance in fraud of creditors, 109 A.L.R. 1185 .

Conflict of laws as regards validity of fraudulent and preferential transfers and assignments, 111 A.L.R. 787 .

Rights as between creditors of fraudulent grantor, where one or more of them, in payment of or as security for his debt, receives deed or mortgage from fraudulent grantee, 114 A.L.R. 406 .

Right to attack and conditions of attack upon conveyance, mortgage, or transfer as fraudulent as against creditors as affected by mortgage or other security for indebtedness to attacking creditor, 116 A.L.R. 1048 .

Complainant's purpose to defraud creditors as defense to suit to recover property paid for by him but conveyed to defendant, 117 A.L.R. 1464 .

Right of individual creditor or creditors of debtor in liquidation or receivership to maintain bill to set aside conveyances or transfers in fraud of creditors, 119 A.L.R. 1339 .

Statute of limitation applicable to suit by creditor to set aside transfers of debtor's property, 128 A.L.R. 1289 .

Right of grantee, or his privies, to maintain suit or proceeding for affirmative relief, where claim is made or anticipated that conveyance was made with intention on part of grantor, but without actual fraud by grantee, to defraud former's creditors, 128 A.L.R. 1504 .

Conditions of creditor's bill or suit to avoid conveyance as a fraud on creditors where creditor has recovered foreign judgment, 129 A.L.R. 506 .

Right to set aside, for benefit of heirs and distributees, a conveyance or transfer by decedent in fraud of his creditors, 148 A.L.R. 230 .

Rights as between creditors of grantor or transferrer and those of grantee or transferee in respect of property conveyed or transferred in fraud of creditors, 148 A.L.R. 520 .

Pleading and proof of exempt character of property in suit to set aside its conveyance as in fraud of creditors, 154 A.L.R. 913 .

Right of wife or child by virtue of right to support to maintain action to set aside conveyance by husband or parent as fraudulent, without reducing claim to judgment, 164 A.L.R. 524 .

Right of attachment or judgment creditor, or officer standing in his shoes, to attack older lien or security interest for usury, 70 A.L.R.2d 1409.

Right of tort claimant, prior to judgment, to attack conveyance or transfer as fraudulent, 73 A.L.R.2d 749.

Conveyance as fraudulent where made in contemplation of possible liability for future tort, 38 A.L.R.3d 597.

Right of secured creditor to have set aside fraudulent transfer of other property by his debtor, 8 A.L.R.4th 1123.

Right of creditor to recover damages for conspiracy to defraud him of claim, 11 A.L.R.4th 345.

Purchase of annuity by debtor as fraud on creditors, 74 A.L.R.6th 549.

RESEARCH REFERENCES

ALR. - Conveyance in consideration of future support as fraudulent against creditors, 2 A.L.R. 1438 ; 23 A.L.R. 584 .

Right of secured creditor to have set aside fraudulent transfer of other property by his debtor, 8 A.L.R.4th 1123.

JUDICIAL DECISIONS

Cited in Saul v. Buck, Hefflebower & Neer, 72 Ga. 254 (1884); Burgess v. Simpson Grocery Co., 128 Ga. 423 , 57 S.E. 717 (1907).

RESEARCH REFERENCES

ALR. - Confirmation of composition in bankruptcy as barring later confirmation of composition or discharge within six years, 80 A.L.R. 406 .

Debtor's waiver of, or refraining from exercising, right to resort to bankruptcy, or his insolvency, as consideration for release of all or part of liability, 108 A.L.R. 656 .

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Conveyances Between Spouses
• Preferences by Corporate Officers
• Assignments
• Actions

RESEARCH REFERENCES

C.J.S. - 21C.J.S., Creditor and Debtor, § 3 et seq. 37 C.J.S., Fraudulent Conveyances, §§ 112, 115.

ALR. - Conveyance in consideration of future support as fraudulent against creditors, 2 A.L.R. 1438 ; 23 A.L.R. 584 .

Attachment or execution creditor as purchaser within rule that first of two purchasers to obtain possession will prevail, 21 A.L.R. 1031 .

Right of surety who discharges obligation due to government to be subrogated to priority or preference of latter, 24 A.L.R. 1502 ; 83 A.L.R. 1131 .

Right of surety discharges obligation due to government, to be subrogated to rights of latter against third persons, 24 A.L.R. 1523 .

Priority as between different assignees of same chose in action as affected by notice to debtor, 31 A.L.R. 876 ; 110 A.L.R. 774 .

Preference in event of debtor's insolvency in respect of funds designated or set apart by him for payment of specified obligations, 32 A.L.R. 950 .

Right of debtor who pays creditor to control application of payments made by latter to his creditor with proceeds of original payment, 41 A.L.R. 1297 ; 130 A.L.R. 198 ; 166 A.L.R. 641 .

Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc, 54 A.L.R. 567 .

Trust or preference in respect of money deposited in bank by court, or pursuant to its order, or by officer of court, 86 A.L.R. 209 .

State's prerogative right of preference at common law, 90 A.L.R. 184 ; 167 A.L.R. 640 .

Right of creditor who institutes supplementary proceedings to priority over other creditors in respect of property disclosed thereby, 92 A.L.R. 1435 ; 153 A.L.R. 211 .

Conflict of laws as regards validity of fraudulent and preferential transfers and assignments, 111 A.L.R. 787 .

Equality among claimants under indemnity or surety bond which is insufficient to pay all claimants in full, 128 A.L.R. 1096 .

Judgment debtor's personal injury claims against third person or latter's liability insurer as subject to creditor's bill, 51 A.L.R.2d 595.

Debtor's return of merchandise to selling creditor for credit as preferential transfer voidable in bankruptcy proceedings, 62 A.L.R.2d 774.

Right of creditor to set up statute of limitations against other creditors of his debtor, 71 A.L.R.2d 1049.

Validity of provision in deed or transfer to assignee for benefit of creditors for payment of attorneys' fees, 79 A.L.R.2d 513.

Creditor's knowledge of preference, or of debtor's insolvency, under § 60(b) of Bankruptcy Act, as indicated by receipt of property in payment of debt, 88 A.L.R.2d 1050.

JUDICIAL DECISIONS

Comparison of corporate rights to those of individual. - Corporation has an equal right with an individual allowing preference, but clearly under the law a corporation "shall not be allowed to prefer any creditor or class of creditors, except such as have debts entitled to priority by the laws of this State." Milledgeville Banking Co. v. McIntyre Alliance Store, 98 Ga. 503 , 25 S.E. 567 (1896).

Assignments with or without preferences. - Insolvent corporation is capable of making a general assignment for benefit of creditors, either with or without giving preference and priority of payment to certain of the creditors. Albany & Renssellaer Iron & Steel Co. v. Southern Agric. Works, 76 Ga. 135 , 2 Am. St. R. 26 (1886).

Preference of creditor even though incidental benefit accrues to directors. - Right of debtor corporation to prefer a creditor, and right of creditor to be preferred, cannot be lost simply because, as a mere incident to the transaction by which preference is effected, the directors may themselves gain some benefit. Milledgeville Banking Co. v. McIntyre Alliance Store, 98 Ga. 503 , 25 S.E. 567 (1896); Atlas Tack Co. v. Macon Hdwe. Co., 101 Ga. 391 , 29 S.E. 27 (1897).

Sole owner of insolvent corporation preferring self as creditor. - Sole owner and president of defendant corporation may not, after corporation becomes insolvent, seize all the corporation's remaining assets and apply those assets to the debt owed by the corporation to the owner personally, thereby rendering the corporation incapable of paying its other business debts. Fountain v. Burke, 160 Ga. App. 262 , 287 S.E.2d 39 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments for Benefit of Creditors, § 10.

ALR. - Right of resident creditors of foreign corporation to preference over nonresident creditors, 1 A.L.R. 648 .

Right of creditor of corporation to maintain action or suit for his own benefit against another creditor to whom corporation has given a preference, 12 A.L.R. 246 .

Right of corporation to prefer creditors, 19 A.L.R. 320 ; 38 A.L.R. 90 ; 48 A.L.R. 479 ; 56 A.L.R. 207 ; 62 A.L.R. 738 .

Waiver of right of government to preference in the assets of insolvent debtor by taking security, 24 A.L.R. 1495 ; 83 A.L.R. 1119 .

Priority as between different assignees of same chose in action as affected by notice to debtor, 31 A.L.R. 876 ; 110 A.L.R. 774 .

Power of municipality to transfer or assign its right to enforce assessment or lien for local improvements, 55 A.L.R. 667 .

Payment of depositor's check after insolvency of bank as an unlawful preference, 74 A.L.R. 937 .

Debtor's return of merchandise to selling creditor for credit as preferential transfer voidable in bankruptcy proceedings, 62 A.L.R.2d 774.

Validity of provision in deed or transfer to assignee for benefit of creditors for payment of attorneys' fees, 79 A.L.R.2d 513.

JUDICIAL DECISIONS

Even an insolvent debtor may prefer one creditor to another, and to this end the debtor may transfer choses in action as collateral security for preexisting debt, surplus in such case not being reserved for the debtor's own benefit. Suttles v. Vickery, 179 Ga. 751 , 177 S.E. 714 (1934).

Mere pendency of suit against debtor does not extinguish the debtor's right to prefer one creditor over another, and in such case, controlling question is "existence or nonexistence of fraud in the transfer." Suttles v. Vickery, 179 Ga. 751 , 177 S.E. 714 (1934).

Assignment to be made in good faith and not benefit debtor. - Debtor is permitted to prefer one creditor over another and to make assignments to that end, so long as the transfer is made in good faith and does not benefit the debtor. Bank of Cave Spring v. Gold Kist, Inc., 173 Ga. App. 679 , 327 S.E.2d 800 (1985).

Effect of assignment prior to service of summons of garnishment. - If assignment is made before service of summons of garnishment upon drawee, garnishing creditor will be postponed to assignee, and this is so whether or not garnishee was notified of assignment. Suttles v. Vickery, 179 Ga. 751 , 177 S.E. 714 (1934).

Sufficient consideration to support equitable and legal assignments to secure preexisting indebtedness. - Suttles v. Vickery, 179 Ga. 751 , 177 S.E. 714 (1934).

Cited in Anderson v. Chambers, 58 Ga. App. 844 , 200 S.E. 478 (1938).

RESEARCH REFERENCES

Am. Jur. 2d. - 21 Am. Jur. 2d, Creditor's Bills, §§ 35, 79.

C.J.S. - 21 C.J.S., Creditor and Debtor, § 3 et seq.

ALR. - Priority as between different assignees of same chose in action as affected by notice to debtor, 31 A.L.R. 876 ; 110 A.L.R. 774 .

Preference in event of debtor's insolvency in respect of funds designated or set apart by him for payment of specified obligations, 32 A.L.R. 950 .

Right of debtor who pays creditor to control application of payments made by latter to his creditor with proceeds of original payment, 41 A.L.R. 1297 ; 130 A.L.R. 198 ; 166 A.L.R. 641 .

Debtor's return of merchandise to selling creditor for credit as preferential transfer voidable in bankruptcy proceedings, 62 A.L.R.2d 774.

Validity of provision in deed or transfer to assignee for benefit of creditors for payment of attorneys' fees, 79 A.L.R.2d 513.

JUDICIAL DECISIONS

Description of nature of debts in schedule. - Assignors' schedule of creditors need not describe nature and character of debts; if the schedule sets forth in detail the name of, amount due to, and residence of each of the creditors of assignors, no further description of the debts is required. Stultz & Blair v. Fleming & Bussey, 83 Ga. 14 , 9 S.E. 1067 (1889).

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments for Benefit of Creditors, §§ 4, 5, 47.

C.J.S. - 21 C.J.S., Creditor and Debtor, § 5 et seq.

ALR. - Conflict of laws as regards validity of fraudulent and preferential transfers and assignments, 111 A.L.R. 787 .

Valuation of notes and accounts receivable in determining question of insolvency or bankruptcy, 133 A.L.R. 1274 .

Creditor's knowledge of preference, or of debtor's insolvency, under § 60(b) of Bankruptcy Act, as indicated by receipt of property in payment of debt, 88 A.L.R.2d 1050.

JUDICIAL DECISIONS

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

ALR. - What language in conveyance or contract amounts to assumption of mortgage by grantee, 101 A.L.R. 281 .

Release of vendee (or intermediate assignee of vendee's interest) by subsequent dealings between assignee and vendor, 125 A.L.R. 979 .

JUDICIAL DECISIONS

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

ALR. - The fact that the parties to a conveyance in fraud of creditors are not in pari delicto as affecting the right of the party guilty of fraud to relief, 7 A.L.R. 150 .

Who may take affidavit as basis for warrant of arrest, 16 A.L.R. 923 .

Conveyance in consideration of future support as fraudulent against creditors, 23 A.L.R. 584 .

Imputation of agent's knowledge to bankrupt or to creditor as satisfying conditions of provisions of Bankruptcy Act excepting unscheduled debts from discharge, 134 A.L.R. 185 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, annotations decided under former Ga. L. 1880-81, p. 174 and Ga. L. 1884-85, p. 100 have been included in the annotations for this Code section.

Construction of Act. - Former Ga. L. 1880-81, p. 174 was remedial in nature and should be strictly construed against the assignor and assignee, and liberally in favor of the creditors. Turnipseed v. Schaefer, 76 Ga. 109 , 2 Am. St. R. 15 (1886) (decided under former Ga. L. 1880-81, p. 174).

Effect of noncompliance. - Former Ga. L. 1880-81, p. 174 was mandatory and assignment by an insolvent debtor for the benefit of creditors is void and conveyed no title when no schedule or inventory was attached to the deed of assignment. Crittenden Bros. v. Coleman & Co., 70 Ga. 293 (1883); Crittenden Bros. v. Coleman & Co., 74 Ga. 331 (1884) (decided under former Ga. L. 1880-81, p. 174).

Annexed schedules are not part of the contract. Birdseye v. Underhill, 82 Ga. 142 , 7 S.E. 863 , 14 Am. St. R. 142 , 2 L.R.A. 99 (1888) (decided under former Ga. L. 1880-81, p. 174).

Specificity of schedules. - It is essential to rights of creditors that schedule of property assigned be made out specifically, so that it may be seen if assignment covers property sold by them, and whether, by reason of fraud in debtor, they can claim title thereto. Crittenden Bros. v. Coleman & Co., 70 Ga. 293 (1883) (decided under former Ga. L. 1880-81, p. 174).

Inventory and schedule need not state values of property listed. - It is not essential to validity of deed of assignment that values should be affixed to items of property included in inventory and schedule thereto attached. Anthony v. Price & Maas, 92 Ga. 170 , 17 S.E. 1024 (1893) (decided under former Ga. L. 1880-81, p. 174).

Intention to defraud by material omissions from schedule. - See Wood & Lovingood v. Haynes, Henson & Co., 92 Ga. 180 , 18 S.E. 47 (1893) (decided under former Ga. L. 1880-81, p. 174).

Omission from schedule of property assigned of a right of redemption. - When one who made a voluntary assignment for the benefit of creditors omitted from schedule attached thereto the right of redemption which that person had in certain premises which the person conveyed for security of a debt, such omission was fatal to the assignment. McMillan v. Knapp, 76 Ga. 171 , 2 Am. St. R. 29 (1886) (decided under former Ga. L. 1880-81, p. 174).

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments for Benefit of Creditors, §§ 4, 5.

ALR. - Imputation of agent's knowledge to bankrupt or to creditor as satisfying conditions of provisions of Bankruptcy Act excepting unscheduled debts from discharge, 134 A.L.R. 185 .

Bankrupt's right to object to allowance of claims, 64 A.L.R.2d 889.

JUDICIAL DECISIONS

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

C.J.S. - 21 C.J.S., Creditor and Debtor, § 5 et seq.

JUDICIAL DECISIONS

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments for Benefit of Creditors, § 117.

C.J.S. - 21 C.J.S., Creditor and Debtor, § 5 et seq.

JUDICIAL DECISIONS

Later change in law. - Assignment contrary to law at time it was made is void, although law was afterwards altered. Mason & Fant v. S. Stricker & Co., 37 Ga. 262 (1867).

Situs of debt follows creditor, and law of creditor's domicile prevails where creditor and debtor are residents of different states. Birdseye v. Underhill, 82 Ga. 142 , 7 S.E. 863 , 14 Am. St. R. 142 , 2 L.R.A. 99 (1888).

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

C.J.S. - 21 C.J.S., Creditor and Debtor, § 42.

JUDICIAL DECISIONS

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments for Benefit of Creditors, §§ 4, 5.

C.J.S. - 21 C.J.S., Creditor and Debtor, § 45.

ALR. - Power, after institution of bankruptcy proceedings, of court in which receivership or assignment proceedings have previously begun, to allow or pay fees or other compensation or expenses connected therewith, 90 A.L.R. 1217 .

JUDICIAL DECISIONS

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments for Benefit of Creditors, § 90 et seq.

C.J.S. - 21 C.J.S., Creditor and Debtor, §§ 14, 50 et seq.

ALR. - Preference in event of debtor's insolvency in respect of funds designated or set apart by him for payment of specified obligations, 32 A.L.R. 950 .

JUDICIAL DECISIONS

Assignee for creditors can sue on account included in deed of assignment for use of purchaser. - Trustee or assignee holding legal title to choses in action under valid deed of assignment for benefit of creditors can sue for amount of an account included in such assignment for use of one who purchased the account at public sale held by that person as such trustee or assignee. May v. McCarty, 11 Ga. App. 454 , 75 S.E. 672 (1912).

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments for Benefit of Creditors, § 90 et seq.

C.J.S. - 21 C.J.S., Creditor and Debtor, § 14, 50 et seq.

ALR. - The fact that parties to a conveyance in fraud of creditors are not in pari delicto as affecting the right of the party guilty of fraud to relief, 7 A.L.R. 150 .

Conveyance in consideration of future support as fraudulent against creditors, 23 A.L.R. 584 .

Preference in event of debtor's insolvency in respect of funds designated or set apart by him for payment of specified obligations, 32 A.L.R. 950 .

Absolute conveyance or transfer with secret reservation as fraudulent per se as against creditors, 68 A.L.R. 306 .

Assignees for creditors as within protection of statute requiring filing or recording of conditional-sale contract or chattel mortgage, 71 A.L.R. 981 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1884-85, p. 100, are included in the annotations for this Code section.

Complainants attacking assignment as fraudulent could proceed without first reducing complainants' claims to judgment. Burns v. Beck, 83 Ga. 471 , 10 S.E. 121 (1889) (decided under former Ga. L. 1884-85, p. 100, No. 429).

Cited in Coleman & Burden Co. v. Rice, 115 Ga. 510 , 42 S.E. 5 (1902); Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments for Benefit of Creditors, § 116.

C.J.S. - 21 C.J.S., Creditor and Debtor, § 78 et seq. 37 C.J.S., Fraudulent Conveyances, § 150 et seq.

ALR. - Priority of assignment of chose in action over subsequent garnishment as affected by lack of notice to debtor of assignment, 52 A.L.R. 109 .

JUDICIAL DECISIONS

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments for Benefit of Creditors, § 117.

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 179 et seq.

JUDICIAL DECISIONS

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments for Benefit of Creditors, § 116.

C.J.S. - 21 C.J.S., Creditor and Debtor, §§ 69, 78 et seq. 37 C.J.S., Fraudulent Conveyances, § 150 et seq.

ALR. - The fact that parties to a conveyance in fraud of creditors are not in pari delicto as affecting the right of the party guilty of fraud to relief, 7 A.L.R. 150 .

Conveyance in consideration of future support as fraudulent against creditors, 23 A.L.R. 584 .

Absolute conveyance or transfer with secret reservation as fraudulent per se as against creditors, 68 A.L.R. 306 .

JUDICIAL DECISIONS

Cited in Burkhalter v. Glennville Bank, 184 Ga. 147 , 190 S.E. 644 (1937).

RESEARCH REFERENCES

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 170 et seq.

ALR. - Death of principal defendant as abating or dissolving garnishment or attachment, 21 A.L.R. 272 ; 131 A.L.R. 1146 .

Right of creditors in respect of property gratuitously conveyed or transferred to a third person for alleged benefit of debtor, 147 A.L.R. 1160 .

JUDICIAL DECISIONS

When trustee failed to appoint successor. - When property was devised to named trustee with power to appoint trustee's own successor, but trustee died without exercising this power, judge of superior court was authorized to appoint trustee. White v. McKeon, 92 Ga. 343 , 17 S.E. 283 (1893).

When trustee of naked trust died, judge might appoint successor, who could maintain ejectment on title. Logan v. Goodall, 42 Ga. 95 (1871).

Power to appoint when trust was executed by children reaching majority. - When trust was executed by children reaching majority, a judge did not have power, on resignation of trustees after death of grantor, to appoint a successor in trust for the children. Milledge v. Bryan, 49 Ga. 397 (1873).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments for Benefit of Creditors, § 86.

C.J.S. - 21 C.J.S., Creditor and Debtor, § 43 et seq.

ALR. - Death of principal defendant as abating or dissolving garnishment or attachment, 21 A.L.R. 272 ; 131 A.L.R. 1146 .

Jurisdiction to garnish debt as affected by previous assignment by principal defendant to a nonresident served constructively, 39 A.L.R. 1465 .

JUDICIAL DECISIONS

Claims under former O.C.G.A. § 18-2-22 not extinguished. - O.C.G.A. § 18-2-22 was repealed on July 1, 2002, when Georgia enacted the Uniform Fraudulent Transfers Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., but this repeal does not extinguish causes of action that arose under former O.C.G.A. § 18-2-22 before that date. Gerschick v. Pounds, 281 Ga. App. 531 , 636 S.E.2d 663 (2006), cert. denied, No. S07C0191, 2007 Ga. LEXIS 95 (Ga. 2007).

Conveyance at issue took place in September 2001 and needed to be construed under former O.C.G.A. § 18-2-22 (repealed) even though the statute was repealed when the legislature adopted the Uniform Fraudulent Transfer Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq. Flatau v. Smith (In re Smith), Bankr. (Bankr. M.D. Ga. Oct. 30, 2007).

Defendant did not have to be indebted to plaintiff. - Read and considered as a whole, a jury charge was an accurate statement of the law and was authorized by the evidence in an action in which the jury was instructed that it was not necessary for a defendant to be indebted to a plaintiff at the time of a transfer for former O.C.G.A. § 18-2-22 to apply and there was evidence that an attorney made a conveyance with actual intent to defraud a future creditor, a client; moreover, the trial court fully and completely charged the law on fraudulent conveyances, including former O.C.G.A. § 18-2-22 (2). Gerschick v. Pounds, 281 Ga. App. 531 , 636 S.E.2d 663 (2006), cert. denied, No. S07C0191, 2007 Ga. LEXIS 95 (Ga. 2007).

Aiding and abetting. - Although Georgia courts had not yet had an opportunity to address the issue of whether there was a cause of action for aiding and abetting a fraudulent transfer when the alleged aider-abetter was not a debtor or a transferee, the instant court concluded that Georgia courts were not likely to recognize such an action; the Uniform Fraudulent Transfer Act (UFTA) (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., did not refer to parties other than debtors, creditors, and transferees, and further there was no language in UFTA that suggested the creation of a distinct cause of action for aiding and abetting claims against non-transferees. Hays v. Paul, Hastings, Janofsky & Walker LLP, F. Supp. 2d (N.D. Ga. Sept. 14, 2006).

No-action clause. - Claims by noteholders under the Uniform Fraudulent Transfers Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., against a corporation and the corporate directors and officers should have been dismissed by the district court because a no-action clause in trust indentures that governed the notes barred the noteholders' claims since the noteholders did not fall within any exception to the rule that no-action clauses barred fraudulent conveyance claims; the appellate court had jurisdiction to grant permission to appeal to all appellants because both prongs of 28 U.S.C. § 1292(b) had been satisfied, which was that the district court had stated the required language in the court's order and the appellants had then filed an application for interlocutory appeal within ten days of that statement. Akanthos Capital Mgmt., LLC v. CompuCredit Holdings Corp., 677 F.3d 1286 (11th Cir. 2012).

Motion for summary judgment denied. - Summary judgment motion filed by an insurer in response to a Chapter 7 trustee's complaint charging that certain premiums paid to the insurer by a debtor were fraudulent conveyances that were recoverable under 11 U.S.C. § 548 and/or under Georgia's Uniform Fraudulent Transfers Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., was denied because the case presented significant factual issues concerning the legal relationships between the debtor and the entities on behalf of which the debtor had paid the premiums and the presence of such issues foreclosed summary judgment. Coleman v. Zurich Am. Ins. Co. (In re Darrow Auto. Group, Inc.), Bankr. (Bankr. S.D. Ga. Mar. 29, 2011).

Trial court erred by denying an insurance company's motion for summary judgment on a claim that the company engaged in a conspiracy which violated the Uniform Fraudulent Transfers Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., by a conspiracy to settle a bad faith/negligence claim possessed by an estate for less than the claim's true value because the insurer was found not to have engaged in fraudulent conduct. Baker v. Huff, 323 Ga. App. 357 , 747 S.E.2d 1 (2013).

Motion for directed verdict properly denied. - Attorney and a wife's motion for a directed verdict was properly denied as a party bringing a fraudulent conveyance action under former O.C.G.A. § 18-2-22 did not have to be a creditor; the circumstances and the timing of the transfer showed the attorney's intent to defraud as a quitclaim deed from the attorney to the wife was "rush recorded" two days after the attorney received a draft order for the underlying judgment, no valuable consideration was given for the transfer, and the attorney was an expert in estate planning, including the protection of assets from the claims of creditors. Gerschick v. Pounds, 281 Ga. App. 531 , 636 S.E.2d 663 (2006), cert. denied, No. S07C0191, 2007 Ga. LEXIS 95 (Ga. 2007).

Transfer to avoid bankruptcy ramifications. - Under former O.C.G.A. § 18-2-22 (repealed), a wife's motion to dismiss a claim brought by a Chapter 7 trustee to avoid a transfer made to her by a debtor husband was denied because the trustee, through the complaint and use of a quitclaim deed, provided a factual basis sufficient to state a claim including some evidence that the transfer was made for no consideration, that the transfer was voluntary, and that the wife knew of the debtor's insolvency at the time the transfer was made. Flatau v. Smith (In re Smith), Bankr. (Bankr. M.D. Ga. Oct. 30, 2007).

Transfer was not fraudulent. - When a corporation paid a dividend to a shareholder pursuant to a shareholders agreement after designating itself an S corporation, it was not a fraudulent transfer because it was not error to find that the transfer was made in exchange for reasonably equivalent value since the shareholders agreement provided the corporation with valuable benefits by virtue of its S-corporation election. Crumpton v. McGarrity (In re Northlake Foods, Inc.), F.3d (11th Cir. Apr. 16, 2013)(Unpublished).

No fraud shown by developer. - In an action brought by the purchasers of a lot seeking to cancel the developer's security deed based upon alleged fraud, the trial court properly granted summary judgment to the developer as, even if the developer knew of the sale of the lot to the purchasers, such sale did not estop the developer from the developer's claim against the lot pursuant to the developer's security deed; however, the trial court did err by denying the equitable subrogation claim asserted by the purchasers' lender since exercising subrogation did not prejudice the developer in any manner. Byers v. McGuire Props., 285 Ga. 530 , 679 S.E.2d 1 (2009).

Judgment creditor could not set aside fraudulent transfer that occurred prior to assignment of loan. - Because of the anti-assignment statute, O.C.G.A. § 44-12-24 , a judgment creditor did not have standing under the Uniform Fraudulent Transfers Act (UFTA), O.C.G.A. § 18-2-70 et seq., to contest transfers by the debtor that occurred prior to assignment of the debtor's loan to the creditor. Merrill Ranch Props., LLC v. Austell, 336 Ga. App. 722 , 784 S.E.2d 125 (2016).

No asset of debtor involved. - Judgment voiding a transfer of property as fraudulent under the Uniform Fraudulent Transfers Act (UFTA) (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., was reversed because, despite not being recorded, the 2002 security deed executed in favor of a former sister-in-law, pledging the property as collateral for a promissory note, gave the former sister-in-law, as one of the defendant's creditors, priority over the plaintiff's judgment, such that the property could not be characterized as the defendant's asset under the UFTA. Wallin v. Wallin, 341 Ga. App. 440 , 800 S.E.2d 617 (2017).

No property transfer involved. - Trial court correctly granted summary judgment in favor of the defendants as to the plaintiff's fraud counts pursuant to the Uniform Fraudulent Transfers Act (UFTA), O.C.G.A. § 18-2-70 et seq., because the UFTA explicitly requires a transfer of an asset, which is defined as certain forms of property and neither defending entity owned property in that classic sense, thus, the UFTA was not the appropriate vehicle for the plaintiff's recovery. Dan J. Sheehan Co. v. Fairlawn on Jones Condo. Ass'n, Inc., 334 Ga. App. 595 , 780 S.E.2d 35 (2015), cert. denied, No. S16C0473, 2016 Ga. LEXIS 217 (Ga. 2016).

Fraudulent conveyance claim not stated. - Administrator failed to state a claim under the Georgia Uniform Fraudulent Transfer Act, now Uniform Voidable Transactions Act, O.C.G.A. § 18-2-70 et seq., against group three when the administrator alleged that defendant one held title to the property when the suit was filed, and claimed that the administrator was entitled to recover the property from defendant one and to set aside the lien to defendant two; the administrator acknowledged that defendants three, four, and five denied any knowledge of the administrator's lien on the property when they purchased the property, and that therefore no one disclosed the lien to the closing attorney or defendants three, four, and five, despite certain parties' knowledge and affirmative duty to disclose the existence of the writ as constituting a lien on the property. Huggins v. Powell, 315 Ga. App. 599 , 726 S.E.2d 730 (2012).

Choice of law. - In a fraudulent conveyance action transferred from the Northern District of Texas, Georgia's former fraudulent conveyance law, former O.C.G.A. § 18-2-22 , which was in force at the time the actions in question occurred, was the applicable state law under Texas choice of law principles because Georgia had the most significant relationship to the issues raised in the lawsuit. MC Asset Recovery v. Southern Co., F. Supp. 2d (N.D. Ga. Apr. 1, 2008).

Damages. - Georgia law allowing the recovery of general and punitive damages for fraudulent conveyances survived the enactment of Georgia's Uniform Fraudulent Transfers Act, O.C.G.A. § 18-2-70 et seq. Interfinancial Midtown, Inc. v. Choate Constr. Co., 343 Ga. App. 793 , 806 S.E.2d 255 (2017).

Cited in Bishop v. Patton, 288 Ga. 600 , 706 S.E.2d 634 (2011).

RESEARCH REFERENCES

Am. Jur. 2d. - 37A Am. Jur. 2d, Fraudulent Conveyances and Transfers, § 2.

JUDICIAL DECISIONS

Transfer. - Definition of a "transfer" is broad enough to encompass a co-owner's withdrawal of funds from a joint bank account. Bishop v. Patton, 288 Ga. 600 , 706 S.E.2d 634 , overruled on other grounds by SRB Inv. Servs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1 , 709 S.E.2d 267 (2011).

Debtor was entitled to summary judgment with respect to an adversary complaint count alleging fraudulent transfer of property under the Georgia Uniform Fraudulent Transfer Act (UFTA) (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., because the transfer of property fully protected the plaintiffs' liens and, therefore, there was no "asset" and no claim for fraudulent conveyance existed. SEG Gateway, LLC v. Bay Circle Props., LLC (In re Bay Circle Props., LLC), Bankr. (Bankr. N.D. Ga. Aug. 1, 2017).

Property. - Defendants' transferring of corporate goodwill, or "book of business," to another entity was a transfer of property under the broad definition of property in Georgia's fraudulent transfer law. Jones v. Tauber & Balser, P.C., 503 Bankr. 162 (N.D. Ga. 2013).

Summary judgment improper. - Trial court erred by granting summary judgment to a creditor because under O.C.G.A. § 18-2-75(b) , the questioned real estate transfer involved the debtor purchasing the property for the debtor's mother because the debtor had the right to purchase the property and it was only deeded to the debtor briefly the same day, which transfer was not to satisfy an antecedent debt, thus, no fraudulent transfer occurred. Truelove v. Buckley, 318 Ga. App. 207 , 733 S.E.2d 499 (2012).

Transferees were not entitled to summary judgment on a Chapter 7 trustee's claim to avoid transfers as actually fraudulent under the Bankruptcy Code and Georgia law as the transferees failed to demonstrate by either affirmative evidence or by pointing to lack of evidence that the trustee could not carry the trustee's burden at trial regarding the debtor's intent to transfer the debtor's assets. Rather, several badges of fraud existed, including that the debtor made the transfer to an insider (a company wholly owned by a director of the debtor who owned more than 20 percent of the stock of the debtor) and that the transfer was made for the purpose of satisfying an antecedent debt owed to an insider. Howell v. Fulford (In re Southern Home & Ranch Supply, Inc.), 515 Bankr. 699 (Bankr. N.D. Ga. 2014).

Cited in Ralls Corp. v. Huerfano River Wind, LLC, 27 F. Supp. 3d 1303 (N.D. Ga. 2014); RES-GA Hightower, LLC v. Golshani, 334 Ga. App. 176 , 778 S.E.2d 805 (2015), cert. denied, No. S16C0330, 2016 Ga. LEXIS 54 (Ga. 2016); Dan J. Sheehan Co. v. Fairlawn on Jones Condo. Ass'n, Inc., 334 Ga. App. 595 , 780 S.E.2d 35 (2015), cert. denied, No. S16C0473, 2016 Ga. LEXIS 217 (Ga. 2016); Bloom v. Camp, 336 Ga. App. 891 , 785 S.E.2d 573 (2016); Wallin v. Wallin, 341 Ga. App. 440 , 800 S.E.2d 617 (2017); EMM Credit, LLC v. Remington, 343 Ga. App. 710 , 808 S.E.2d 96 (2017).

RESEARCH REFERENCES

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 5.

JUDICIAL DECISIONS

Determining the date of insolvency for purposes of a breach of trust claim under Georgia's common law did not require the application of an insolvency standard differing significantly from the fair valuation standard under O.C.G.A. § 18-2-72 . Post-Confirmation Comm. for Small Loans, Inc. v. Martin, F. Supp. 2d (M.D. Ga. June 13, 2016).

Insolvency resulting in constructive fraud pled. - Actual fraud was adequately pled by alleging badges of fraud sufficient to infer the fraudulent nature of transfers to insiders; moreover, insolvency resulting in constructive fraud also was adequately pled. Ralls Corp. v. Huerfano River Wind, LLC, 27 F. Supp. 3d 1303 (N.D. Ga. 2014).

Judgment against debtor. - Debtor's transfer of real property to the debtor's spouse, a default judgment in a lawsuit, which the trustee claimed rendered the debtor insolvent, in which the spouse did not participate and which was filed after the transfer did not prove the debtor's insolvency at the time of the transfer for purposes of former O.C.G.A. § 18-2-22(3); the spouse's status as the debtor's spouse, standing alone, did not establish privity with the debtor, and the judgment against the debtor did not bind the spouse. Thurmond v. Turner (In re Turner), Bankr. (Bankr. N.D. Ga. Sept. 19, 2006).

RESEARCH REFERENCES

Am. Jur. 2d. - 37 Am. Jur. 2d, Fraudulent Conveyances and Transfers, § 18 et seq.

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 63 et seq.

JUDICIAL DECISIONS

Antecedent debt. - Fraudulent transfer claims involving evidence of several badges of fraud survived summary judgment; the equitable doctrine of earmarking was inapplicable because apportionment of the debtor's estate was not at issue, the in pari delicto defense was inapplicable because liquidators were pursuing the fraudulent transfer claims for the benefit of innocent creditors, and factual issues existed as to whether payment on an antecedent debt was actual value. Am. Pegasus SPC v. Clear Skies Holding Co., LLC, F. Supp. 2d (N.D. Ga. Sept. 22, 2015).

RESEARCH REFERENCES

Am. Jur. 2d. - 37 Am. Jur. 2d, Fraudulent Conveyances and Transfers, § 25 et seq.

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 78 et seq.

JUDICIAL DECISIONS

Transfers of assets before death. - Before decedent died, a decedent's gifts to the decedent's spouse, the decedent's subsequent purchase of land and deeding of the land in a corporate entity's name without documented consideration from the entity, and the decedent's involvement in the capitalization of the entity with purported funds from the spouse could all be found to constitute transfers made with the intent to fraudulently defeat claims of the decedent's ex-spouse under the terms of a settlement agreement the decedent had with the decedent's ex-spouse, and could constitute fraud under the statute. Miller v. Lomax, 266 Ga. App. 93 , 596 S.E.2d 232 (2004).

Evidence was sufficient to sustain the jury's verdict under the plaintiff's theory of fraudulent transfer and civil conspiracy as some evidence authorized the jury to find that a deed conveying the property owner's sole interest to the real property to the owner and one defendant as joint tenants with right of survivorship without any money exchanged prior to death was to evade the plaintiff before a promissory note was paid. Bloom v. Camp, 336 Ga. App. 891 , 785 S.E.2d 573 (2016).

Badges of fraud identified by federal court applicable. - O.C.G.A. § 18-2-74 permits the trustee to avoid a transfer made with the actual intent to hinder, delay or defraud any creditor of the debtor. Subsection (b) states that, in determining actual intent, the court could consider a specified list of factors among other factors, which track the badges of fraud identified by the United States Court of Appeals for the Eleventh Circuit. Scarver v. M. Abuhab Participacoes S.A. (In re Moskowitz), Bankr. (Bankr. N.D. Ga. Nov. 28, 2011).

Intentional fraud. - Plaintiff established prima facie case of intentional fraud sufficient to trigger Georgia's fraudulent transfer law because the plaintiff provided evidence showing that the transaction resulted in transfer of substantially all assets, transferring company became insolvent shortly after transfer, transfer occurred just before potential lawsuit against transferring company became known, shareholders of transferring company simply switched over to company to whom assets transferred, and some evidence existed that efforts were made to conceal the nature of the transfer. Jones v. Tauber & Balser, P.C., 503 Bankr. 162 (N.D. Ga. 2013).

Assignee of debt could bring fraudulent transfer claim. - Judgment creditor had standing to pursue the creditor's claim against a judgment debtor and the debtor's transferees, although the judgment creditor was the assignee of the debt leading to the judgment, because it did not seek a remedy for an injury to the previous holder of the note, but for an injury that was committed directly against it; O.C.G.A. § 44-12-24 did not apply. RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713 , 798 S.E.2d 315 (2017).

Right of action for injuries arising from fraud cannot be assigned. - An assignee of debt is precluded from pursuing a fraudulent transfer claim even though the assignee met the definitions of a creditor with a claim under the Georgia Uniform Fraudulent Transfers Act (now the Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., because the non-assignment statute provides that a right of action for injuries arising from fraud cannot be assigned; thus, the second assignee had no standing to assert a fraudulent transfer claim against the appellee regarding two parcels of real property because a fraudulent transfer claim could not be assigned under Georgia law. RES-GA Hightower, LLC v. Golshani, 334 Ga. App. 176 , 778 S.E.2d 805 (2015), cert. denied, No. S16C0330, 2016 Ga. LEXIS 54 (Ga. 2016).

Court granted a motion for default judgment and denied Chapter 7 debtor's discharge when the well-pled allegations of the complaint established that post-petition, the debtor liquidated the debtor's 401(k) account and spent or transferred proceeds without authority from the court and with intent to hinder, delay, or defraud creditors or officers of the debtor's bankruptcy estate. The court inferred the debtor's fraudulent intent based on badges of fraud under Georgia fraudulent conveyance statute, including that the debtor did not fully disclose the value of the account; the debtor transferred a portion of the funds to the debtor's mother and daughter, who were insiders; funds were substantially all of the debtor's assets; and the debtor transferred a portion of the funds without adequate consideration. Gebhardt v. Oliver (In re Oliver), Bankr. (Bankr. N.D. Ga. May 5, 2015).

Because the 2015 amendments to the Georgia Uniform Fraudulent Transfers Act (now the Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., specifically allowed assignees and successors to debt to pursue fraudulent transfer claims, it follows that under the previous version of the Georgia Uniform Fraudulent Transfers Act, such assignments were not allowed. RES-GA Hightower, LLC v. Golshani, 334 Ga. App. 176 , 778 S.E.2d 805 (2015), cert. denied, No. S16C0330, 2016 Ga. LEXIS 54 (Ga. 2016).

Even though the four-year statute of limitations under the Georgia Uniform Fraudulent Transfer Act (UFTA) (now the Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., had not expired, a Chapter 7 trustee's avoidance action, which was brought pursuant to a Bankruptcy Code provision allowing the trustee to step into the shoes of an unsecured creditor, was barred by the two-year limitations period in the Bankruptcy Code. Nor was the statute tolled by a Bankruptcy Code provision dealing with extensions of time as the trustee's fraudulent transfer action was brought standing in the shoes of a creditor, not the debtor. Boudreaux v. Hall Oil Co. (In re Pope Logging, Inc.), Bankr. (Bankr. S.D. Ga. Sept. 17, 2015).

Chapter 7 trustee's state law fraudulent transfer claim was barred by the statute of limitations because the trustee was pursuing the claim through the trustee's authority as lien creditor and did not bring the action within the time set forth under bankruptcy law. Boudreaux v. Hall Oil Co. (In re Butler Logging, Inc.), 538 Bankr. 174 (Bankr. S.D. Ga. 2015).

Void as to creditor not void ab initio. - When a bank sought relief from the automatic stay to proceed with a sheriff's sale under a prepetition state court consent judgment that resolved a fraudulent transfer action against the debtor and others by declaring the transfer "void," the court denied the motion as unnecessary. No interest in the property revested in the debtor because, applying rules of contract construction to the consent judgment, and giving the consent judgment a construction that rendered it in compliance with Georgia fraudulent transfer statutes, the court determined that the word "void" meant void as to the bank, not void ab initio. Southeastern Bank v. Allen (In re Allen), Bankr. (Bankr. S.D. Ga. June 5, 2017)(decided prior to the 2015 amendment).

Insider. - Certain individuals and entities were insiders of the debtor, including officers and persons in control of the debtor, their spouses, the owner of 66 percent of the debtor, and indirect owners of 20 percent or more of the debtor. Watts v. MTC Dev., LLC (In re Palisades at W. Paces Imaging Ctr., LLC), 501 Bankr. 896 (Bankr. N.D. Ga. 2013).

Pleading requirements. - Special pleading requirements of Fed. R. Civ. P. 9(b) did not apply to an action for fraudulent conveyance under Georgia Uniform Fraudulent Transfers Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq. Nesco, Inc. v. Fairley Cisco, F. Supp. 2d (S.D. Ga. Oct. 7, 2005).

Trustee's pleadings that alleged that the investors used the debtors as part of a Ponzi scheme and that the money transferred to the limited liability company amounted to a fraudulent transfer was sufficient to meet the pleading requirements of Fed. R. Civ. P. 8, Fed. R. Bankr. 7008, the heightened pleading requirements of Fed. R. Civ. P. 9(b), and to state a claim under 11 U.S.C. § 548 and O.C.G.A. § 18-2-75(a) . Perkins v. Crown Fin., LLC (In re Int'l Mgmt. Assocs. LLC), Bankr. (Bankr. N.D. Ga. Mar. 6, 2007).

Defendant LLC did not establish that a more definite statement was required for the trustee's allegations under 11 U.S.C. § 548 and O.C.G.A. § 18-2-74 because the trustee's complaint was not unintelligible and provided sufficient information to the LLC so it could frame a response; the complaint named only the LLC as a defendant and alleged that the transfer made pursuant to a settlement agreement was fraudulent. Perkins v. Crown Fin., LLC (In re Int'l Mgmt. Assocs. LLC), Bankr. (Bankr. N.D. Ga. Mar. 6, 2007).

Chapter 7 trustee's allegations were sufficient to survive a creditor's motion to dismiss the trustee's complaint seeking to avoid and recover transfers pursuant to 11 U.S.C. §§ 544(b)(1) and 550 when the trustee alleged sufficient facts to suggest that, pursuant to O.C.G.A. § 18-2-74(b) , the creditor received avoidable fraudulent transfers from the debtor. The trustee alleged that all of the transfers were made within four years of the petition date, that the transfers were from the debtors' bank account, and that several badges of fraud indicated the debtors' actual intent to hinder, delay, or defraud including the fact that the transfers occurred when the debtors were insolvent, the creditor was an insider of the debtors at the time of the transfers, and the creditor knew or should have known that the debtors were involved in an unlawful scheme to defraud investors. Gordon v. Graybeal (In re CM Vaughn, LLC), Bankr. (Bankr. N.D. Ga. June 21, 2010).

Court rejected transferees' argument that a Chapter 7 trustee could not plausibly assert the existence of a creditor with an allowed claim that gave the creditor standing under 11 U.S.C. § 544(b)(1) to assert a constructively fraudulent transfer claim under O.C.G.A. § 18-2-74 and Del. Code Ann. tit. 6, § 1304 because the assertion that only an unsecured creditor with a claim arising prior to the transfers could seek their avoidance was legally flawed. Under the state statutes, a transfer for less than reasonably equivalent value was constructively fraudulent as to creditors whose claims arose after the transfers when the debtor was engaged or was about to engage in a business or transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction. Watson v. Powell (In re Atlantis Plastics, Inc.), Bankr. (Bankr. N.D. Ga. Mar. 31, 2011)(Unpublished).

When an investor asserted a fraudulent transfer claim against a bank to which a consultant who allegedly defrauded the investor made a down payment on a house, it was error to dismiss the claim based on the bank's assertion that the bank, under O.C.G.A. § 18-2-74(a)(1), took the consultant's funds in good faith and for a reasonably equivalent value because: (1) the investor's complaint did not admit or otherwise demonstrate such an affirmative defense; and (2) the investor had no obligation to anticipate the affirmative defense. Furthermore, the claims could survive a motion to dismiss because the investor: (1) stated viable claims; (2) did not have to anticipate affirmative defenses; and (3) did not admit such defenses. Speedway Motorsports, Inc. v. Pinnacle Bank, 315 Ga. App. 320 , 727 S.E.2d 151 (2012).

Trustee could not prevail under O.C.G.A. § 18-2-74 because the trustee was not a "creditor" who was able to utilize § 18-2-74 . Here, the trustee did not plead that the trustee was moving under 11 U.S.C. § 544; rather, the trustee simply asserted a state law cause of action. Cooper v. Bullock (In re Bullock), Bankr. (Bankr. N.D. Ga. June 12, 2012).

Actual fraud was adequately pled by alleging badges of fraud sufficient to infer the fraudulent nature of transfers to insiders; moreover, insolvency resulting in constructive fraud also was adequately pled. Ralls Corp. v. Huerfano River Wind, LLC, 27 F. Supp. 3d 1303 (N.D. Ga. 2014).

Transferees were not entitled to summary judgment on a Chapter 7 trustee's claim to avoid transfers as actually fraudulent under the Bankruptcy Code and Georgia law as the transferees failed to demonstrate by either affirmative evidence or by pointing to lack of evidence that the trustee could not carry the trustee's burden at trial regarding the debtor's intent to transfer the debtor's assets. Rather, several badges of fraud existed, including that the debtor made the transfer to an insider (a company wholly owned by a director of debtor who owned more than 20 percent of the stock of the debtor) and that the transfer was made for the purpose of satisfying an antecedent debt owed to an insider. Howell v. Fulford (In re Southern Home & Ranch Supply, Inc.), 515 Bankr. 699 (Bankr. N.D. Ga. 2014).

Bankruptcy trustee failed to allege that payments to a creditor were avoidable as fraudulent since the bankruptcy debtor incurred the obligation upon execution of an agreement which occurred outside the look-back period for avoiding fraudulent transfers. Gordon v. Harrison (In re Alpha Protective Servs.), 531 Bankr. 889 (Bankr. M.D. Ga. 2015).

Judgment creditor could seek relief under the Uniform Fraudulent Transfers Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., against the judgment debtor and transferees, but it could not pursue the judgment debtor's mother and sister or their corporation because they did not receive any interest from the judgment debtor and were not themselves debtors of the judgment creditor whose transfers were subject to attack. RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713 , 798 S.E.2d 315 (2017).

Colorable claim in bankruptcy. - When a Chapter 7 debtor failed to list a creditor's claim, the claim was non-dischargeable under 11 U.S.C. § 523(a)(3). Pursuant to the fraudulent transfer elements of O.C.G.A. § 18-2-74 , the creditor made the required showing of a colorable claim of non-dischargeability under 11 U.S.C. § 523(a)(6). D.A.N. Joint Venture III, L.P. v. Wier (In re Wier), Bankr. (Bankr. N.D. Ga. Sept. 30, 2012).

No asset of debtor involved. - Judgment voiding a transfer of property as fraudulent under the Uniform Fraudulent Transfers Act (UFTA) (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., was reversed because, despite not being recorded, the 2002 security deed executed in favor of a former sister-in-law, pledging the property as collateral for a promissory note, gave the former sister-in-law, as one of the defendant's creditors, priority over the plaintiff's judgment, such that the property could not be characterized as the defendant's asset under the UFTA. Wallin v. Wallin, 341 Ga. App. 440 , 800 S.E.2d 617 (2017).

Property was transferred. - Defendants' argument that transfer of corporate goodwill, or "book of business," could not as a matter of law constitute transfer under Georgia's fraudulent transfer law because goodwill had no value was rejected because the plaintiff produced evidence that the goodwill transferred had substantial value. Jones v. Tauber & Balser, P.C., 503 Bankr. 162 (N.D. Ga. 2013).

Fraudulent transfer shown. - Checks payable from a Chapter 7 debtor that were deposited in an insider's account were avoidable as made with actual intent to defraud a creditor because the deposited checks were not fully disclosed, the debtor received no consideration for the transfer, the debtor was insolvent at the time, and the checks, and any invoices which allegedly supported them, were created in order to defraud a creditor into making advances for expenses not validly incurred. Watts v. MTC Dev., LLC (In re Palisades at W. Paces Imaging Ctr., LLC), 501 Bankr. 896 (Bankr. N.D. Ga. 2013).

Father who admitted he caused property to be transferred to his son to shield the property from the father's creditors was not entitled to judgment against the son because he had unclean hands, under O.C.G.A. § 23-1-10 . Under O.C.G.A. § 18-2-74(a)(1), the transfer was fraudulent because the transfer was made with actual intent to hinder, delay, or defraud the father's creditors. Roach v. Roach, 327 Ga. App. 513 , 759 S.E.2d 587 (2014).

Chapter 7 debtor's discharge was denied based on transfer of funds for no consideration shortly after the debtor had been sued from a joint bank account to an account purportedly controlled by the debtor's spouse because the debtor testified that the funds were transferred to the spouse so that money would not be garnished. McAfee v. Harman (In re Harman), Bankr. (Bankr. N.D. Ga. Sept. 10, 2014).

Assignment of a bankruptcy debtor's interest in real property was avoidable as fraudulent since the debtor received no proceeds from the assignee's sale of the property, did not receive reasonably equivalent value for the assignment, and became insolvent as a result of the assignment. Boudreaux v. Holloway (In re Holloway), Bankr. (Bankr. S.D. Ga. Mar. 31, 2015), aff'd, 2017 U.S. App. LEXIS 3359 (11th Cir. Ga. 2017).

Beneficiary of trust preferred securities sufficiently alleged a fraudulent transfer based on allegations that the issuer of the securities caused its subsidiary bank to issue new stock in a concealed placement to transfer substantially all of the issuer's assets with an intent to deprive the beneficiary of returns on the securities. U.S. Capital Funding VI, Ltd. v. Patterson Bankshares, Inc., 137 F. Supp. 3d 1340 (S.D. Ga. 2015).

No fraudulent transfer shown. - When a debtor received valuable consideration or reasonably equivalent value as a result of a creditor bank's release of the bank's lien against the debtor's assets in exchange for the payment of another's obligation guaranteed by the debtor, no fraudulent transfer occurred under 11 U.S.C. § 548(a)(1)(B) or O.C.G.A. § 18-2-74(a) . Hays v. Farmers and Merchants Bank (In re Stewart Fin. Co.), Bankr. (Bankr. M.D. Ga. June 8, 2007).

Transfers from bankruptcy debtors were avoidable as fraudulent under O.C.G.A. § 18-2-74(a)(1) since the transfers made in the course of a Ponzi scheme were deemed to be made with fraudulent intent, and the lack of information from the debtors, the refusal of the debtors to allow transferees to conduct due diligence, and the usurious interest paid by the debtors clearly indicated that the transactions were fraudulent. Kerr v. Audio Answers, Inc. (In re Christou), Bankr. (Bankr. N.D. Ga. Sept. 28, 2009).

Chapter 7 trustee was not entitled to the recovery of property from the debtor's property under 11 U.S.C. § 544. Under the fraudulent transfer elements of O.C.G.A. § 18-2-74 , the debtor received reasonably equivalent value in exchange for the privilege of living in the property without the payment of rent, taxes, or insurance and in exchange for enjoying the benefit of property improvements. Pettigrew v. Rollins (In re Rollins), Bankr. (Bankr. N.D. Ga. Sept. 29, 2011).

Distributions to the members of a limited liability company did not constitute a fraudulent transfer in violation of O.C.G.A. § 18-2-74(a) because insolvency on the part of the company and an actual intent to hinder, defraud, or delay the creditor's collection of the creditor's debt was not shown. Sun Nurseries, Inc. v. Lake Erma, LLC, 316 Ga. App. 832 , 730 S.E.2d 556 (2012).

No fraudulent transfer when work performed. - Debtor's twice monthly $1833 payments to the defendant in exchange for regular, hotel managerial services did not constitute avoidable fraudulent transfers under O.C.G.A. §§ 18-2-74(a)(2)(B) and 18-2-75 because the defendant's work for the debtor constituted reasonably equivalent value in exchange for the payments. Anderson v. Patel (In re Diplomat Constr., Inc.), Bankr. (Bankr. N.D. Ga. Aug. 6, 2013).

Transfer before a crime was committed. - Although the transfer of a house was accompanied by some badges of fraud, the trial court abused the court's discretion in enjoining further disposition of the house, pending adjudication of the merits of wrongful death and fraudulent transfer claims, since the transferor gave the house to the transferor's three minor grandchildren in Florida three months before the transferor murdered the decedent. Bishop v. Patton, 288 Ga. 600 , 706 S.E.2d 634 , overruled on other grounds by SRB Inv. Servs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1 , 709 S.E.2d 267 (2011).

Fraudulent transfer by individual accused of murder. - Court did not abuse the court's discretion in entering an interlocutory injunction barring further disposition of the proceeds from joint bank accounts pending final disposition of fraudulent transfer and wrongful death lawsuits because badges of fraud indicated an actual intent to hinder, delay, or defraud a decedent's estate and heirs of a full recovery. The transferor's adult child came up from Florida to withdraw the funds from joint bank accounts in Georgia three days after the transferor was arrested for the murder of the decedent. Bishop v. Patton, 288 Ga. 600 , 706 S.E.2d 634 , overruled on other grounds by SRB Inv. Servs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1 , 709 S.E.2d 267 (2011).

Accrual of action for fraudulent conveyance. - In determining when a cause of action accrued for purposes of O.C.G.A. § 9-3-32 it was necessary to ascertain the time when the plaintiff could first have maintained plaintiff's action to a successful result. The relevant date for determining the statute of limitations on a fraudulent conveyance claim, pursuant to O.C.G.A. §§ 18-2-74 , 18-2-75 , and 18-2-76 , was the date that the debtor incurred the obligation to make the transfer. Kipperman v. Onex Corp., 411 Bankr. 805 (N.D. Ga. 2009).

Fraudulent conveyance claim time-barred. - Administrator's fraudulent conveyance claims against group one were time-barred under O.C.G.A. §§ 18-2-74(a)(1) and 18-2-79(1) , even though the claim was not time-barred under the limitations period in effect when the claim accrued, as application of § 18-2-79 , a procedural law in effect at the time the suit was filed, did not violate the constitutional prohibition against retroactive laws under Ga. Const. 1983, Art. I, Sec. I, Para. X; the administrator also failed to utilize the one-year statute of limitation effective upon discovery of the alleged fraud. Huggins v. Powell, 315 Ga. App. 599 , 726 S.E.2d 730 (2012).

Since an administrator's fraudulent conveyance claims were time-barred under O.C.G.A. §§ 18-2-74(a)(1) and 18-2-79(1) , a limited liability company's (LLC) failure to respond to the administrator's requests for admissions was of no consequence and the trial court's denial of summary judgment to the LLC was improper. Huggins v. Powell, 315 Ga. App. 599 , 726 S.E.2d 730 (2012).

Margin or settlement payments. - Federal statute, 11 U.S.C. § 546(e), was a defense to the counts of a trustee's avoidance action brought against an investment company under 11 U.S.C. § 544, which incorporated O.C.G.A. §§ 18-2-22(3) and 18-2-74(a)(2), and to the count brought pursuant to 11 U.S.C. § 548(a)(1)(A). Hayes v. Morgan Stanley DW Inc. (In re Stewart Fin. Co.), 367 Bankr. 909 (Bankr. M.D. Ga. 2007).

Charging order did not give creditor rights against LLC assets. - Judgment creditor did not have standing to set aside allegedly fraudulent transfers made by non-judgment debtor limited liability companies (LLCs), although the creditor had charging orders against the LLCs under O.C.G.A. § 14-11-504(a) ; the charging orders did not give the creditor any rights against the assets of the LLCs. Merrill Ranch Props., LLC v. Austell, 336 Ga. App. 722 , 784 S.E.2d 125 (2016).

Discovery of attorney-client communications. - Judgment creditor could inquire into attorney-client communications only as the communications were related to the planning or execution of the transition from the limited liability company (LLC) to the other entities. The creditor could not inquire into communications made after these transactions were carried out, even if those communications concern the possible legal implications of the transactions. Tindall v. H & S Homes, LLC, F. Supp. 2d (M.D. Ga. Jan. 10, 2011).

Crime fraud exception to attorney-client privilege triggered. - With respect to documents claimed to be protected by attorney-client privilege, because the plaintiff successfully established a prima facie case of intentional fraud and violation of Georgia's fraudulent transfer law, that was enough to trigger the crime-fraud exception and require the defendants to produce documents related to the transfer at issue. Jones v. Tauber & Balser, P.C., 503 Bankr. 162 (N.D. Ga. 2013).

Interlocutory injunction proper. - Trial court did not abuse the court's discretion in entering an interlocutory injunction to preserve the status quo pending adjudication of the merits of the creditor's action against the debtors alleging breach of contract and fraudulent transfers because the debtors presented no evidence of harm from the creditor's delay in amending the creditor's complaint to seek an interlocutory injunction, and the delay resulted primarily from the debtors' concealment of the debtors' actions and obstruction of the creditor's efforts to discover the details; vague assertions of harm supported by no citation to evidence in the record are insufficient to sustain a defense of laches, and there is a balance between a plaintiff's knowing that a cause of action exists and that interim injunctive relief may be needed and sitting on the plaintiff's rights to the prejudice of the defendant. SRB Inv. Servs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1 , 709 S.E.2d 267 (2011).

Trial court did not abuse the court's discretion in entering an interlocutory injunction to preserve the status quo pending adjudication of the merits of the creditor's action against the debtors alleging breach of contract and fraudulent transfers in violation of the Georgia Uniform Fraudulent Transfers Act (UFTA) (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., because foreclosing on collateral of uncertain remaining value, going through confirmation proceedings, and suing the insolvent debtors to reclaim the deficiency and then having to recover the fraudulently transferred assets to collect on the ensuing judgment was not an adequate remedy at law since it was not nearly as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity enjoining further transfers temporarily so that the creditor could collect a final judgment; when a money judgment is likely to be uncollectible because a debtor has fraudulently moved the debtor's assets in an attempt to dissipate or conceal the assets from a creditor, Georgia law, both before and under the Georgia UFTA, gives the creditor the right to seek interlocutory relief by freezing the assets where the assets are. SRB Inv. Servs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1 , 709 S.E.2d 267 (2011).

Trial court did not abuse the court's discretion in entering an interlocutory injunction to preserve the status quo pending adjudication of the merits of the creditor's action against the debtors alleging breach of contract and fraudulent transfers in violation of the Georgia Uniform Fraudulent Transfers Act (UFTA) (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., because at least seven statutory badges of fraud listed in the UFTA, O.C.G.A. § 18-2-74(b) , were implicated, and the creditor also presented evidence as a non-statutory badge of fraud of the debtors' pattern of maintaining just enough funds in certain accounts to satisfy the debtors' financial covenants at the end of each quarter and then transferring the funds away shortly thereafter; under the UFTA, O.C.G.A. § 18-22-77(a)(3)(A), the trial court was authorized to enter an interlocutory injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property. SRB Inv. Servs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1 , 709 S.E.2d 267 (2011).

Summary judgment improper. - On a fraudulent transfer claim brought by the buyers of the assets of a fitness center, it was error to grant summary judgment to the sellers. There was evidence that about seven days after the closing, the sellers' corporation distributed the sales proceeds to the corporation's four shareholders and that this left the corporation with essentially no assets; furthermore, the buyers presented sufficient evidence on each of the elements of fraud so as to survive summary judgment on the buyer's fraud claim. Kilroy v. Alpharetta Fitness, Inc., 295 Ga. App. 274 , 671 S.E.2d 312 (2008), cert. denied, Alpharetta Fitness, Inc., v. Kilroy, No. S09C0645, 2009 Ga. LEXIS 216 (Ga. 2009).

Based on evidence of the sale of judgment debtors' business to their long-time close friends and evidence that the friends were aware that the business owed money, a genuine issue of material fact remained as to whether the debtors transferred their assets with actual intent to hinder, delay, or defraud their creditor under O.C.G.A. § 18-2-74(a)(1). Therefore, the trial court's grant of summary judgment was reversed. Abbott Oil Co. v. Rogers, 302 Ga. App. 439 , 691 S.E.2d 561 (2010), cert. denied, No. S10C1026, 2010 Ga. LEXIS 583 (Ga. 2010).

Bankruptcy court denied a Chapter 7 trustee's motion for summary judgment on the trustee's claim that transfers that were made by a mortgage company to an investor were avoidable under 11 U.S.C. § 544 and the Georgia Uniform Fraudulent Transfer Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-74 et seq., because a person who owned the company used the company to operate a Ponzi scheme. The trustee had the burden of showing that there was no genuine issue of material fact, and there was a genuine dispute regarding whether the investor took the transfers in good faith, or gave reasonably equivalent value in exchange for the transfers; although a significant portion of the uncertainty in the evidence arose from the fact that the investor refused to respond to the trustee's requests for discovery, the trustee had done nothing more than highlight the investor's use of U.S. Const., amend. 5. Kerr v. Hart (In re Christou), Bankr. (Bankr. N.D. Ga. Sept. 23, 2010).

O.C.G.A. § 18-2-74 allows the avoidance of a transfer made without receiving reasonably equivalent value when the debtor was either engaged or about to engage in a business or transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction, or the debtor intended to incur or believed or reasonably should have believed that he or she would incur debts beyond his or her ability to pay as the debts became due. Scarver v. M. Abuhab Participacoes S.A. (In re Moskowitz), Bankr. (Bankr. N.D. Ga. Nov. 28, 2011).

Trial court erred by granting summary judgment to a creditor because, under O.C.G.A. § 18-2-75(b) , the questioned real estate transfer involved the debtor purchasing the property for the debtor's mother because the debtor had the right to purchase the property and it was only deeded to the debtor briefly the same day, which transfer was not to satisfy an antecedent debt, thus, no fraudulent transfer occurred. Truelove v. Buckley, 318 Ga. App. 207 , 733 S.E.2d 499 (2012).

Summary judgment was inappropriate as to a lender's claims under Georgia's Uniform Fraudulent Transfers Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., because the evidence was not undisputed, particularly given the evidence of the guarantor's optimistic efforts to secure additional investors and shore up the financials of the guarantor's businesses during the same approximate time frame. Nissan Motor Acceptance Corp. v. Sowega Motors, Inc., F. Supp. 2d (M.D. Ga. Sept. 11, 2012).

Trustee's avoidance action alleging fraudulent conveyance could not be resolved on summary judgment because, despite existence of several badges of fraud, the mere fact that the debtor thought the debtor was returning property that was not the debtors was sufficient to preclude avoiding transfers, and what the debtor believed or reasonably should have believed was genuine issues of material fact. Kelley v. Speciale (In re Gregg), Bankr. (Bankr. M.D. Ga. July 2, 2013).

In a transfer avoidance action under 11 U.S.C. § 544(b)(1), the complaint alleged sufficient facts to raise questions of fact regarding whether the statute of limitations barred the trustee's claim as it was plausible that the debtors concealed the transfers and the creditor did not learn of the transfers until years later. Lubin v. Markowitz (In re Markowitz), Bankr. (Bankr. N.D. Ga. Mar. 22, 2017).

Fraudulent transfer claims involving evidence of several badges of fraud survived summary judgment; the equitable doctrine of earmarking was inapplicable because apportionment of the debtor's estate was not at issue, the in pari delicto defense was inapplicable because liquidators were pursuing the fraudulent transfer claims for the benefit of innocent creditors, and factual issues existed as to whether payment on an antecedent debt was actual value. Am. Pegasus SPC v. Clear Skies Holding Co., LLC, F. Supp. 2d (N.D. Ga. Sept. 22, 2015).

Insufficient basis for actual fraud to go before jury. - Trustee's assertion of seven badges of fraud drawn from O.C.G.A. § 18-2-74(b) and fraudulent transfer case law provided insufficient factual detail to give the court a sufficient basis in the record to allow the issue of actual fraud to go before a jury. Kipperman v. Onex Corp., 411 Bankr. 805 (N.D. Ga. 2009).

Defenses. - Bankruptcy court rejected a Chapter 11 trustee's argument that investors who received payments from affiliated businesses that were accused of operating a Ponzi scheme did not give value for the payments and could not assert a defense under 11 U.S.C. § 548(c) or Georgia law against the trustee's action seeking recovery of those payments under 11 U.S.C. §§ 544(b) and 548(a)(1)(A) and (a)(1)(B), and Georgia law, as fraudulent transfers. The investors had a claim for the return of principal the investors invested, based on fraud, the investors gave value for payments the investors received up to the amount of the principal the investors invested because the payments satisfied their claim, and their right to keep the payments did not depend on whether the investments the investors made were characterized as debt or equity. In re Int'l Mgmt. Assocs., LLC, Bankr. (Bankr. N.D. Ga. Dec. 1, 2009), aff'd, 661 F.3d 623 (11th Cir. 2011)(Unpublished).

Damages available. - Georgia law allowing the recovery of general and punitive damages for fraudulent conveyances survived the enactment of Georgia's Uniform Fraudulent Transfers Act, O.C.G.A. § 18-2-70 et seq. Interfinancial Midtown, Inc. v. Choate Constr. Co., 343 Ga. App. 793 , 806 S.E.2d 255 (2017).

Statute mirrors Bankruptcy Code. - As with actual fraud under Georgia law, both O.C.G.A. §§ 18-2-74(a)(2)(B) and 18-2-75 substantially mirror the constructive fraud claims under the Bankruptcy Code. Pettie v. Bonertz (In re LendXFinancial, LLC), Bankr. (Bankr. N.D. Ga. Mar. 16, 2012).

Analysis same as under 11 U.S.C. § 548(a)(1)(a). - O.C.G.A. § 18-2-74(a)(1) substantially mirrors 11 U.S.C. § 548(a)(1)(A) of the Bankruptcy Code. The Georgia statutes are different in that a creditor may recover property up to four years after the transfer occurred under O.C.G.A. § 18-2-79 . Pettie v. Bonertz (In re LendXFinancial, LLC), Bankr. (Bankr. N.D. Ga. Mar. 16, 2012).

Cited in In re Davis, Bankr. (Bankr. N.D. Ga. July 9, 2007); EMM Credit, LLC v. Remington, 343 Ga. App. 710 , 808 S.E.2d 96 (2017).

RESEARCH REFERENCES

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 74 et seq.

JUDICIAL DECISIONS

Transfer of property set aside. - Debtor's transfer of property to the debtor's daughter, without consideration, was properly set aside since the deed was recorded nearly 18 months after the deed was signed, recorded the day after the appellate court entered judgment on the case, the debtor continued to occupy the property without paying rent, and the debtor disposed of assets worth at least $500,000 in the seven months after the deed was recorded, leading to the debtor's insolvency. Kent v. A.O. White, Jr., Consulting Eng'r, Inc., 279 Ga. App. 563 , 631 S.E.2d 782 (2006).

After the debtor transferred funds to the debtor's sister, who had ownership, dominion and control over the funds, the sister was a transferee under 11 U.S.C. § 550, and the funds were recoverable as a fraudulent conveyance under 11 U.S.C. § 544 and O.C.G.A. § 18-2-75 . Ogier v. Braswell (In re Clark), 435 Bankr. 753 (Bankr. N.D. Ga. 2009).

When an investor asserted fraudulent transfer and related claims against accounts in the names of the former wife and widow of a consultant who allegedly defrauded the investor, the claims survived a motion to dismiss because the investor: (1) stated viable claims; (2) did not have to anticipate affirmative defenses; and (3) did not admit such defenses. Speedway Motorsports, Inc. v. Pinnacle Bank, 315 Ga. App. 320 , 727 S.E.2d 151 (2012).

Evidence that a corporation was insolvent at the time the corporation made payments in the amount of $248,367 to each of two principals, and that the corporation did not receive reasonably equivalent value for the payments, was sufficient to show that the payments were constructively fraudulent and could be recovered for the corporation's bankruptcy estate under 11 U.S.C. § 544 and O.C.G.A. § 18-2-75 ; although the principals claimed that the payments were due on a loan the principals made to the corporation and that the principals returned some payments to the corporation's accounts, there was no evidence supporting the principal's claims. Anderson v. Patel (In re Diplomat Constr., Inc.), Bankr. (Bankr. N.D. Ga. Aug. 26, 2013).

No property transfer involved. - Trial court correctly granted summary judgment in favor of the defendants as to the plaintiff's fraud counts pursuant to the Uniform Fraudulent Transfers Act (UFTA) (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., because the UFTA explicitly requires a transfer of an asset, which is defined as certain forms of property and neither defending entity owned property in that classic sense; thus, the UFTA was not the appropriate vehicle for the plaintiff's recovery. Dan J. Sheehan Co. v. Fairlawn on Jones Condo. Ass'n, Inc., 334 Ga. App. 595 , 780 S.E.2d 35 (2015), cert. denied, No. S16C0473, 2016 Ga. LEXIS 217 (Ga. 2016).

Reasonably equivalent value. - Debtor's twice monthly $1833 payments to the defendant in exchange for regular, hotel managerial services did not constitute avoidable fraudulent transfers under O.C.G.A. §§ 18-2-74(a)(2)(B) and 18-2-75 because the defendant's work for the debtor constituted reasonably equivalent value in exchange for the payments. Anderson v. Patel (In re Diplomat Constr., Inc.), Bankr. (Bankr. N.D. Ga. Aug. 6, 2013).

Failure to offer evidence of value. - Transferees were not entitled to summary judgment on a Chapter 7 trustee's constructive fraud claims under the Bankruptcy Code and Georgia law as the transferees failed to offer any evidence of the value of the collateral at issue and, thus, the trustee's evidence created a question of fact. Howell v. Fulford (In re Southern Home & Ranch Supply, Inc.), 515 Bankr. 699 (Bankr. N.D. Ga. 2014).

Transfers not made by debtor not subject to attack. - Judgment creditor could seek relief under the Uniform Fraudulent Transfers Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., against the judgment debtor and transferees, but it could not pursue the judgment debtor's mother and sister or their corporation because they did not receive any interest from the judgment debtor and were not themselves debtors of the judgment creditor whose transfers were subject to attack. RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713 , 798 S.E.2d 315 (2017).

Accrual of action for fraudulent conveyance. - In determining when a cause of action accrued for purposes of O.C.G.A. § 9-3-32 , it was necessary to ascertain the time when the plaintiff could first have maintained the plaintiff's action to a successful result. The relevant date for determining the statute of limitations on a fraudulent conveyance claim, pursuant to O.C.G.A. §§ 18-2-74 , 18-2-75 , and 18-2-76 , was the date that the debtor incurred the obligation to make the transfer. Kipperman v. Onex Corp., 411 Bankr. 805 (N.D. Ga. 2009).

Claims not subject to arbitration. - When a trustee of a creditor trust under bankruptcy debtors' confirmed plan alleged that providers of financial services to the debtors were the transferees of fraudulent transfers from the debtors under O.C.G.A. § 18-2-75(a) , the claims were not subject to arbitration under arbitration clauses in contracts between the providers and the debtors; the claims were not derived from the rights of the debtors under the contracts since the debtors were the transferors, and the trustee asserted the claims on behalf of the creditors. Cohen v. Ernst & Young, LLP (In re Friedman's, Inc.), 372 Bankr. 530 (Bankr. S.D. Ga. 2007).

Summary judgment improper. - Trial court erred by granting summary judgment to a creditor because under O.C.G.A. § 18-2-75(b) , the questioned real estate transfer involved the debtor purchasing the property for the debtor's mother because the debtor had the right to purchase the property and the property was only deeded to the debtor briefly the same day, which transfer was not to satisfy an antecedent debt, thus, no fraudulent transfer occurred. Truelove v. Buckley, 318 Ga. App. 207 , 733 S.E.2d 499 (2012).

Summary judgment was inappropriate as to a lender's claims under Georgia's Uniform Fraudulent Transfers Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., because the evidence was not undisputed, particularly given the evidence of the guarantor's optimistic efforts to secure additional investors and shore up the financials of the guarantor's businesses during the same approximate time frame. Nissan Motor Acceptance Corp. v. Sowega Motors, Inc., F. Supp. 2d (M.D. Ga. Sept. 11, 2012).

Trustee's avoidance action alleging fraudulent conveyance could not be resolved on summary judgment because genuine issue of material fact existed with respect to the debtor's insolvency. Kelley v. Speciale (In re Gregg), Bankr. (Bankr. M.D. Ga. July 2, 2013).

Dispute over law firm's fees payable by debtor. - In a complaint seeking to recover pre-petition transfers made by a Chapter 11 debtor to a law firm, the law firm's motion for summary judgment was denied as there was a genuine dispute of material fact regarding whether the debtor failed to receive reasonably equivalent value for the transfers as required by either 11 U.S.C. § 548(a)(1)(B)(I) or O.C.G.A. § 18-2-75(a) . The law firm contended that the firm's invoices demonstrated that the firm provided substantial legal services to the debtor in exchange for the payments the firm received, while the debtor's responsible officer contended that the descriptions of work in the invoices were too vague and cursory to evaluate whether the services constituted reasonably equivalent value. Davis v. McDermott Will & Emery LLP (In re Tom's Foods, Inc.), Bankr. (Bankr. M.D. Ga. Oct. 20, 2010).

Obligation and payments thereon evaluated separately. - In a fraudulent conveyance action, the need to evaluate a debt separately from the payments thereon was evidenced by 11 U.S.C. § 548 and O.C.G.A. § 18-2-75(a) , which permitted the obligation and the payments to be avoided separately or together. Watts v. Peachtree Tech. Partners, LLC (In re Palisades at West Paces Imaging Ctr., LLC), Bankr. (Bankr. N.D. Ga. Sept. 13, 2011).

Bankruptcy trustee failed to allege that payments to a creditor were avoidable as fraudulent since the bankruptcy debtor incurred the obligation upon execution of an agreement which occurred outside the look-back period for avoiding fraudulent transfers. Gordon v. Harrison (In re Alpha Protective Servs.), 531 Bankr. 889 (Bankr. M.D. Ga. 2015).

Fraudulent transfer shown. - One million three hundred forty thousand dollars ($1,340,000) in payments made by the debtor to an insider, allegedly for a construction management fee, were avoidable because there was no evidence to support any reasonably equivalent value in excess of the $175,000 contract price since there was no evidence as to what the "extras" were, the cost of the "extras", or even a contractual basis for the extra charges. Watts v. MTC Dev., LLC (In re Palisades at W. Paces Imaging Ctr., LLC), 501 Bankr. 896 (Bankr. N.D. Ga. 2013).

Payments made by Chapter 7 debtor to an insider, allegedly for a construction management fee, were avoidable as a transfer made to an insider for an antecedent debt because the insider had reasonable cause to believe the debtor was insolvent at the time the payments were made, and, even under the insider's version of the facts, the payments were for antecedent debt. Watts v. MTC Dev., LLC (In re Palisades at W. Paces Imaging Ctr., LLC), 501 Bankr. 896 (Bankr. N.D. Ga. 2013).

Checks payable from a Chapter 7 debtor that were deposited in an insider's account were avoidable because there was no evidence that the debtor, which was insolvent at the time of the transfers, received any value as a result of the checks, nor any evidence that the insider used the funds to pay any valid expenses of the debtor. Watts v. MTC Dev., LLC (In re Palisades at W. Paces Imaging Ctr., LLC), 501 Bankr. 896 (Bankr. N.D. Ga. 2013).

Checks payable from a Chapter 7 debtor that were deposited in an insider's account were avoidable because the checks were on account of antecedent debt. Watts v. MTC Dev., LLC (In re Palisades at W. Paces Imaging Ctr., LLC), 501 Bankr. 896 (Bankr. N.D. Ga. 2013).

Although transfers by a Chapter 7 debtor to insiders could not be avoided because the debtor received reasonably equivalent value, the transfers were nonetheless avoidable because they were made on account of antecedent debt at a time when the debtor was insolvent. Watts v. MTC Dev., LLC (In re Palisades at W. Paces Imaging Ctr., LLC), 501 Bankr. 896 (Bankr. N.D. Ga. 2013).

Actual fraud was adequately pled by alleging badges of fraud sufficient to infer the fraudulent nature of transfers to insiders; moreover, insolvency resulting in constructive fraud also was adequately pled. Ralls Corp. v. Huerfano River Wind, LLC, 27 F. Supp. 3d 1303 (N.D. Ga. 2014).

JUDICIAL DECISIONS

Accrual of action for fraudulent conveyance. - In determining when a cause of action accrued for purposes of O.C.G.A. § 9-3-32 , it was necessary to ascertain the time when the plaintiff could first have maintained the plaintiff's action to a successful result. The relevant date for determining the statute of limitations on a fraudulent conveyance claim, pursuant to O.C.G.A. §§ 18-2-74 , 18-2-75 , and 18-2-76 , was the date that the debtor incurred the obligation to make the transfer. Kipperman v. Onex Corp., 411 Bankr. 805 (N.D. Ga. 2009).

JUDICIAL DECISIONS

Pleadings adequate for fraud. - Actual fraud was adequately pled by alleging badges of fraud sufficient to infer the fraudulent nature of transfers to insiders; moreover, insolvency resulting in constructive fraud also was adequately pled. Ralls Corp. v. Huerfano River Wind, LLC, 27 F. Supp. 3d 1303 (N.D. Ga. 2014).

Claims survived motion to dismiss. - When an investor asserted fraudulent transfer and related claims against accounts in the names of the former wife and widow of a consultant who allegedly defrauded the investor, the claims survived a motion to dismiss because the investor: (1) stated viable claims; (2) did not have to anticipate affirmative defenses; and (3) did not admit such defenses. Speedway Motorsports, Inc. v. Pinnacle Bank, 315 Ga. App. 320 , 727 S.E.2d 151 (2012).

Transfer prior to death. - Although the transfer of a house was accompanied by some badges of fraud, the trial court abused the court's discretion in enjoining further disposition of the house, pending adjudication of the merits of wrongful death and fraudulent transfer claims since the transferor gave the house to the transferor's three minor grandchildren in Florida three months before the transferor murdered the decedent. Bishop v. Patton, 288 Ga. 600 , 706 S.E.2d 634 , overruled on other grounds by SRB Inv. Servs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1 , 709 S.E.2d 267 (2011).

Evidence was sufficient to sustain the jury's verdict under the plaintiff's theory of fraudulent transfer and civil conspiracy as some evidence authorized the jury to find that a deed conveying the property owner's sole interest to the real property to the owner and one defendant as joint tenants with right of survivorship without any money exchanged prior to death was to evade the plaintiff before a promissory note was paid. Bloom v. Camp, 336 Ga. App. 891 , 785 S.E.2d 573 (2016).

Suit against non-transferees of property barred. - Judgment creditor could seek relief under the Uniform Fraudulent Transfers Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., against the judgment debtor, as well as any recipient of the transfers the debtor made, O.C.G.A. §§ 18-2-77 and 18-2-78 , but the creditor could not pursue the judgment debtor's mother and sister or their corporation because they did not receive any interest in the properties from the judgment debtor. RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713 , 798 S.E.2d 315 (2017).

Interlocutory injunction proper. - Trial court did not abuse the court's discretion in entering an interlocutory injunction to preserve the status quo pending adjudication of the merits of the creditor's action against the debtors alleging breach of contract and fraudulent transfers in violation of the Georgia Uniform Fraudulent Transfers Act (UFTA), O.C.G.A. § 18-2-70 et seq., because at least seven statutory badges of fraud listed in the UFTA (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-74(b) , were implicated, and the creditor also presented evidence as a non-statutory badge of fraud of the debtors' pattern of maintaining just enough funds in certain accounts to satisfy the debtors' financial covenants at the end of each quarter and then transferring the funds away shortly thereafter; under the UFTA, O.C.G.A. § 18-22-77(a)(3)(A), the trial court was authorized to enter an interlocutory injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property. SRB Inv. Servs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1 , 709 S.E.2d 267 (2011).

RESEARCH REFERENCES

Am. Jur. 2d. - 37 Am. Jur. 2d, Fraudulent Conveyances and Transfers, § 90 et seq.

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 150 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 28-202 and former § 18-2-23 are included in the annotations for this Code section.

Basis of right to set aside fraudulent transfers. - Former Code 1933, §§ 28-101, 28-102, 28-201 and 28-202 provided creditors with a right to set aside fraudulent transfers, and this remedy was available to any creditor at time of transfer who thereafter reduced their claim to a judgment lien. United States v. Hickox, 356 F.2d 969 (5th Cir. 1966) (decided under former Code 1933, § 28-202).

Construction in pari materia with other statutes. - Former Civil Code 1910, §§ 3224 and 3225, being in pari materia, were to be construed together. Warren v. Citizens Nat'l Bank, 145 Ga. 503 , 89 S.E. 520 (1916) (decided under former Civil Code 1910, § 3225).

Fraudulent conveyance statute, former §§ 18-2-22 and 18-2-23 should be considered in pari materia. FDIC v. United States, 654 F. Supp. 794 (N.D. Ga. 1986) (decided under former § 18-2-23 ).

One induced to sell goods to a bankrupt by fraud cannot reclaim from trustee. In re Whatley Bros., 199 F. 326 (N.D. Ga. 1912) (decided under former Civil Code 1910, § 3225).

Impoundment of unpaid purchase money from sale. - If the fraudulent grantee sells to an innocent purchaser, any unpaid purchase money due on such sale will be impounded as an equitable asset of the debtor for the distribution to the debtor's creditors. Beasley v. Smith, 144 Ga. 377 , 87 S.E. 293 (1915) (decided under former Civil Code 1910, § 3225).

Suspicion alone insufficient. - Contrary to the trial court's conclusion, reasonable grounds for suspicion alone do not suffice to render a subsequent purchaser's title void, and when the buyer acquired the automobile for value, and had no notice that the seller's title was obtained through fraud, the buyer received good title. Hall v. Hidy, 263 Ga. 422 , 435 S.E.2d 215 (1993) (decided under former § 18-2-23 ).

Charge that grounds to suspect fraud in grantor's acquisition vitiates conveyance. - It was error to charge that purchaser from one who is fraudulent grantee takes no title as against creditors if the individual has grounds to reasonably suspect fraud in conveyance to the grantor. Hinkle v. James Smith & Son, 133 Ga. 255 , 65 S.E. 427 (1909) (decided under former Civil Code 1895, § 2695).

Protection of trustee and contingent beneficiary. - When it was clearly evident that both the trustee and the contingent beneficiary of a trust had reasonable grounds to suspect that the purpose of the second security deed against certain property and the assignment thereof to the trust, at least in part, was done with the intent of the assignor to delay or defraud creditors in violation of former § 18-2-22(2), neither the trustee nor the beneficiary was a subsequent purchaser entitled to the protections of former § 18-2-23 . FDIC v. United States, 654 F. Supp. 794 (N.D. Ga. 1986) (decided under former § 18-2-23 ).

Reasonably equivalent value. - Bankruptcy court rejected a Chapter 11 trustee's argument that investors who received payments from affiliated businesses that were accused of operating a Ponzi scheme did not give value for the payments and could not assert a defense under 11 U.S.C. § 548(c) or Georgia law against the trustee's action seeking recovery of those payments under 11 U.S.C. §§ 544(b) and 548(a)(1)(A) and (a)(1)(B), and Georgia law, as fraudulent transfers. The investors had a claim for the return of principal the investors invested, based on fraud, the investors gave value for payments the investors received up to the amount of the principal the investors invested because the payments satisfied their claim, and their right to keep the payments did not depend on whether the investments the investors made were characterized as debt or equity. In re Int'l Mgmt. Assocs., LLC, Bankr. (Bankr. N.D. Ga. Dec. 1, 2009), aff'd, 661 F.3d 623 (11th Cir. 2011)(Unpublished).

When an investor asserted a fraudulent transfer claim against a bank to which a consultant who allegedly defrauded the investor made a down payment on a house, it was error to dismiss the claim based on the bank's assertion that the bank, under O.C.G.A. § 18-2-74(a)(1), took the consultant's funds in good faith and for a reasonably equivalent value because: (1) the investor's complaint did not admit or otherwise demonstrate such an affirmative defense; and (2) the investor had no obligation to anticipate the affirmative defense. Speedway Motorsports, Inc. v. Pinnacle Bank, 315 Ga. App. 320 , 727 S.E.2d 151 (2012).

Transfers were avoidable. - There was no showing of transferees' good faith in fraudulent transfers from bankruptcy debtors since the lack of information from the debtors, the refusal of the debtors to allow transferees to conduct due diligence, and the usurious interest paid by the debtors clearly indicated that the transactions were fraudulent; thus, the transfers from bankruptcy debtors were avoidable. Kerr v. Audio Answers, Inc. (In re Christou), Bankr. (Bankr. N.D. Ga. Sept. 28, 2009).

Damages available. - Georgia law allowing the recovery of general and punitive damages for fraudulent conveyances survived the enactment of Georgia's Uniform Fraudulent Transfers Act, O.C.G.A. § 18-2-70 et seq. Interfinancial Midtown, Inc. v. Choate Constr. Co., 343 Ga. App. 793 , 806 S.E.2d 255 (2017).

Suit against non-transferees of property barred. - Judgment creditor could seek relief under the Uniform Fraudulent Transfers Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., against the judgment debtor, as well as any recipient of the transfers the debtor made, O.C.G.A. §§ 18-2-77 and 18-2-78 , but the creditor could not pursue the judgment debtor's mother and sister or their corporation because they did not receive any interest in the properties from the judgment debtor. RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713 , 798 S.E.2d 315 (2017).

Summary judgment improper. - Based on evidence of the sale of judgment debtors' business to their long-time close friends and evidence that the friends were aware that the business owed money, a genuine issue of material fact remained as to whether the debtors transferred their assets with actual intent to hinder, delay, or defraud their creditor under O.C.G.A. § 18-2-74(a)(1). Therefore, the trial court's grant of summary judgment was reversed. Abbott Oil Co. v. Rogers, 302 Ga. App. 439 , 691 S.E.2d 561 (2010), cert. denied, No. S10C1026, 2010 Ga. LEXIS 583 (Ga. 2010).

Creditor failed to show good faith under O.C.G.A. § 18-2-78 in receiving fraudulent transfers from a bankruptcy debtor as returns on the creditor's investments in the debtor's Ponzi scheme, and thus the creditor was not entitled to summary judgment; the creditor was an educated and sophisticated businessman and, despite the creditor's assertion that the creditor had no reason to doubt the debtor who previously brokered mortgages for the creditor, the facts that the creditor invested substantial funds, received no promissory notes, and was paid no interest were sufficient to indicate that the creditor should have been suspicious of the nature of the transactions. In re Christou v. Cressaty Metals, Inc., Bankr. (Bankr. N.D. Ga. Sept. 23, 2010).

O.C.G.A. § 18-2-78(e) was inapplicable to the transfer. The transfer occurred as part of the Settlement Agreement after the transferee sued the debtor and, as such, the transferee did not enforce a security interest in compliance with Article 9 of the Uniform Commercial Code; moreover, there was not a segregated, discrete fund in which the transferee could have exercised the transferee's security interest. Perkins v. Crown Fin., LLC (In re Int'l Mgmt. Assocs., LLC), Bankr. (Bankr. N.D. Ga. Feb. 9, 2016)(Unpublished).

Cited in Dime Savs. Bank v. Sandy Springs Assocs., 261 Ga. 485 , 405 S.E.2d 491 (1991).

RESEARCH REFERENCES

Am. Jur. 2d. - 37 Am. Jur. 2d, Fraudulent Conveyances and Transfers, § 92.

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 144.

ALR. - Right of grantee or transferee to be reimbursed for expenditures in payment of taxes or encumbrances on property where conveyance or transfer is in fraud of creditors, 8 A.L.R. 527 .

Delivery of key as satisfying condition of immediate delivery and actual or continued change of possession to uphold sale of personal property against subsequent purchaser or third persons generally, 56 A.L.R. 518 .

Persons asserting claim on theory of agency or trust as within term "creditors" in statutes relating to proof of claims against insolvent bank, 89 A.L.R. 383 .

Right to set aside, for benefit of heirs and distributees, a conveyance or transfer by decedent in fraud of his creditors, 148 A.L.R. 230 .

Rule denying relief to one who conveyed his property to defraud his creditors as applicable where the threatened claim which occasioned the conveyance was never established, 21 A.L.R.2d 589; 6 A.L.R.4th 862.

Right of creditors to attack as fraudulent a conveyance by third person to debtor's spouse, 35 A.L.R.2d 8.

Right of secured creditor to have set aside fraudulent transfer of other property by his debtor, 8 A.L.R.4th 1123.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former § 18-2-22 are included in the annotations for this Code section.

Limitations on actions. - U.S. Bankruptcy Court determined appropriate limitations periods for claims for alleged fraudulent conveyances of real property (seven years) and personal property (four years) by analogy to adverse possession and conversion, respectively, in the absence of an express limitations period in former O.C.G.A. § 18-2-22 . Broadfoot v. Hunerwadel (In re Dulock), 282 Bankr. 54 (Bankr. N.D. Ga. 2002) (decided under former O.C.G.A. § 18-2-22 ).

Trial court improperly granted summary judgment to judgment debtors on a judgment creditor's claim under O.C.G.A. § 14-8-28 upon finding that the limitations period under O.C.G.A. § 18-2-79 barred the claim as there was no legal basis to conclude that the limitation period in § 18-2-79 was applicable to the creditor's claim. Morris v. Nexus Real Estate Mortg. & Inv. Co., 296 Ga. App. 477 , 675 S.E.2d 511 (2009).

Chapter 7 trustee was not barred by the statute of limitations under O.C.G.A. § 18-2-79 or under 11 U.S.C. § 546 from pursuing a cause of action under 11 U.S.C. § 544 because the debtor filed the debtor's petition before the state statute of limitations expired, but was barred from pursuing avoidance under 11 U.S.C. § 548 of any transfer occurring prior to two years before the petition was filed. Watts v. Peachtree Tech. Partners, LLC (In re Palisades at West Paces Imaging Ctr., LLC), Bankr. (Bankr. N.D. Ga. Sept. 13, 2011).

As an administrator's fraudulent conveyance claims were time-barred under O.C.G.A. §§ 18-2-74(a)(1) and 18-2-79(1) , a limited liability company's (LLC) failure to respond to the administrator's requests for admissions was of no consequence and the trial court's denial of summary judgment to the LLC was improper. Huggins v. Powell, 315 Ga. App. 599 , 726 S.E.2d 730 (2012).

Administrator's fraudulent conveyance claims against group one were time-barred under O.C.G.A. §§ 18-2- 74(a)(1) and 18-2-79(1) , even though the claim was not time-barred under the limitations period in effect when the claim accrued, as application of § 18-2-79 , a procedural law in effect at the time the suit was filed, did not violate the constitutional prohibition against retroactive laws under Ga. Const. 1983, Art. I, Sec. I, Para. X; the administrator also failed to avail the administrator of the one-year statute of limitation effective upon discovery of the alleged fraud. Huggins v. Powell, 315 Ga. App. 599 , 726 S.E.2d 730 (2012).

Even though the four-year statute of limitations under the Georgia Uniform Fraudulent Transfer Act (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., had not expired, a Chapter 7 trustee's avoidance action, which was brought pursuant to a Bankruptcy Code provision allowing the trustee to step into the shoes of an unsecured creditor, was barred by the two-year limitations period in the Bankruptcy Code. Nor was the statute tolled by a Bankruptcy Code provision dealing with extensions of time as the trustee's fraudulent transfer action was brought standing in the shoes of a creditor, not the debtor. Boudreaux v. Hall Oil Co. (In re Pope Logging, Inc.), Bankr. (Bankr. S.D. Ga. Sept. 17, 2015).

In a transfer avoidance action under 11 U.S.C. § 544(b)(1), the complaint alleged sufficient facts to raise questions of fact regarding whether the statute of limitations barred the trustee's claim as it was plausible that the debtors concealed the transfers and the creditor did not learn of the transfers until years later. Lubin v. Markowitz (In re Markowitz), Bankr. (Bankr. N.D. Ga. Mar. 22, 2017).

Action to set aside fraudulent transfer timely filed. - Fraudulent transfer occurred on the date the deed was recorded, even though the deed was signed nearly 18 months earlier, and the creditor timely filed the creditor's complaint and action to set aside the fraudulent transfer approximately six months before the four-year statute of limitation would have run. Kent v. A.O. White, Jr., Consulting Eng'r, Inc., 279 Ga. App. 563 , 631 S.E.2d 782 (2006).

Fraudulent transfer claim was time-barred. - Former director's putative transferee met the transferee's burden for summary judgment purposes of asserting that a fraudulent transfer claim was time-barred, but the creditor failed to point to specific evidence that gave rise to a triable issue with respect to whether the limitation period did not bar the claim. Am. Nat'l Holding Corp. v. EMM Credit, LLC, 323 Ga. App. 655 , 748 S.E.2d 683 (2013).

Fraudulent transfer claims alleging actual fraud survived summary judgment because fact issues existed as to when the fraudulent nature of the transfers was discovered, but some constructive fraud claims were untimely because no discovery rule applied. Am. Pegasus SPC v. Clear Skies Holding Co., LLC, F. Supp. 2d (N.D. Ga. Sept. 22, 2015).

Claim not subject to dismissal based on unrecorded deeds. - Judgment creditor's fraudulent transfer action was not shown to be barred by limitations because, even assuming that the reference to the year 2003 in unwitnessed and unrecorded deeds from the judgment debtor proved that the deeds were executed in 2003, those deeds could not prove the passing of title, and questions concerning the judgment creditor's diligence in discovering the alleged fraud were generally questions for a trier of fact. RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713 , 798 S.E.2d 315 (2017).

Cited in Bishop v. Patton, 288 Ga. 600 , 706 S.E.2d 634 (2011); Fox v. Norfolk S. Corp., 342 Ga. App. 38 , 802 S.E.2d 319 (2017).

RESEARCH REFERENCES

Am. Jur. 2d. - 37 Am. Jur. 2d, Fraudulent Conveyances and Transfers, § 152 et seq.

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 123 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 37 Am. Jur. 2d, Fraudulent Conveyances and Transfers, § 126 et seq.

JUDICIAL DECISIONS

Damages available. - Georgia law allowing the recovery of general and punitive damages for fraudulent conveyances survived the enactment of Georgia's Uniform Fraudulent Transfers Act, O.C.G.A. § 18-2-70 et seq. Interfinancial Midtown, Inc. v. Choate Constr. Co., 343 Ga. App. 793 , 806 S.E.2d 255 (2017).

Cited in Bishop v. Patton, 288 Ga. 600 , 706 S.E.2d 634 (2011).

RESEARCH REFERENCES

Am. Jur. 2d. - 37 Am. Jur. 2d, Fraudulent Conveyances and Transfers, § 152 et seq.

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 170 et seq.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Nonresident Debtors
• Removal of Domicile
• Debtor's Concealment
• Removal of Property

RESEARCH REFERENCES

2B Am. Jur. Pleading and Practice Forms, Attachment and Garnishment, § 91. 2C Am. Jur. Pleading and Practice Forms, Attachment and Garnishment, §§ 340, 494.

ALR. - What constitutes nonresidence for purpose of attachment, 26 A.L.R. 180 .

Action based on statute as one in which attachment will lie, 26 A.L.R. 563 ; 51 A.L.R. 1386 .

Right of creditor to attach bankrupt's exempt property after discharge in bankruptcy, 55 A.L.R. 303 .

Nature and extent of relief of successful intervenor or interpleader in attachment, 66 A.L.R. 908 .

Property of incompetent or infant under guardianship as subject of execution, attachment, or garnishment, 92 A.L.R. 919 .

Debtor's intent to defraud or delay creditors within contemplation of attachment statute as inferable as matter of law from fact that he has removed or is about to remove property from the state without making adequate provision for his creditors, 92 A.L.R. 966 .

Foreign corporation as a nonresident for purposes of attachment law of the state in which it is doing business or is domesticated, 114 A.L.R. 1378 .

Attachment as affected by release or modification of lien to which property was subject when attachment was levied, 128 A.L.R. 1392 .

Right of creditors to reach, by garnishment or other process, commissions of debtor, as executor, administrator, or trustee, 143 A.L.R. 190 .

Money or other property taken from prisoner as subject of attachment, garnishment, or seizure under execution, 154 A.L.R. 758 .

Foreign attachment or garnishment as available in action by nonresident against nonresident or foreign corporation upon a foreign cause of action, 14 A.L.R.2d 420.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.

JUDICIAL DECISIONS

Statute embraced all money demands, whether resting in tort or contract. Walker v. Zorn, 56 Ga. 35 (1876).

Attachment may issue when debtor resides out of state in all cases of money demands, whether arising ex contractu or ex delicto. Benefield v. Radiator Specialty Co., 116 Ga. App. 588 , 158 S.E.2d 423 (1967).

Extent of judgment creditor's lien. - Lien of judgment creditor is not a lien acquired by contract, but is given by law; consequently, a lienor is not in the position of a bona fide purchaser, and a lien extends only to property levied upon which actually belongs to the defendant in attachment. Parker v. Boyd, 208 Ga. 829 , 69 S.E.2d 760 (1952).

Attachment proper as to action for specific damages arising in tort. Graves v. Strozier, 37 Ga. 32 (1867).

Attachment proper regarding promise to pay debt with solvent notes. Monroe v. Bishop, 29 Ga. 159 (1859).

Attachment proper as to breach of promise of marriage. Morton v. Pearman, 28 Ga. 323 (1859).

Cited in McReynolds v. Colclough, 146 Ga. 696 , 92 S.E. 206 (1917); Grimmett v. Barnwell, 184 Ga. 461 , 192 S.E. 191 (1937); Tennessee-Virginia Constr. Co. v. Willingham, 115 Ga. App. 90 , 153 S.E.2d 627 (1967).

RESEARCH REFERENCES

ALR. - Replevin for bank account, 44 A.L.R. 1522 .

Attachment in libel and slander cases, 61 A.L.R. 1347 .

Action based on rescission of contract as one arising on contract express or implied within the meaning of attachment statute, 77 A.L.R. 748 ; 95 A.L.R. 1028 .

Judgment in tort action as subject of assignment, attachment, or garnishment pending appeal, 121 A.L.R. 420 .

Attachment statute as applicable to equity suits, 154 A.L.R. 95 .

JUDICIAL DECISIONS

Attachment under Laws 1816, Cobb's 1851 Digest, p. 75 (see now O.C.G.A. § 18-3-3 ) must be by affidavit in the form required by Ga. L. 1855-56, p. 25, § 42 (see now O.C.G.A. § 18-3-19 ). Harrill v. Humphries, 26 Ga. 514 (1858).

Cited in Monroe v. Bishop, 29 Ga. 159 (1859); Askew v. Melvin, 144 Ga. 348 , 87 S.E. 278 (1915); Hensley v. Minehan, 29 Ga. App. 251 , 114 S.E. 647 (1922); Stevenson v. Allen, 94 Ga. App. 123 , 93 S.E.2d 794 (1956).

RESEARCH REFERENCES

ALR. - What amounts to a "debt" within statute providing for attachment before debt is due, 65 A.L.R. 1439 ; 58 A.L.R.2d 1451.

What sort of claim, obligation, or liability is within contemplation of statute providing for attachment, or giving right of action for indemnity, before a debt or liability is due, 58 A.L.R.2d 1451.

JUDICIAL DECISIONS

Suit in attachment is separate and distinct from a common law action; and failure to number and document them separately is error on part of clerk. Dollar v. Fred W. Amend Co., 184 Ga. 432 , 191 S.E. 696 (1937).

Former Code 1933, § 8-104 (see now O.C.G.A. § 18-3-4 ) was applicable to attachments under former Code 1933, § 8-101 (see now O.C.G.A. § 18-3-1 ). Threlkeld v. Whitehead, 95 Ga. App. 378 , 98 S.E.2d 76 (1957).

Pending action with bail in superior court, plaintiff may take out attachment on same demand returnable to inferior court. Wood v. Carter, 29 Ga. 580 (1859).

Filing of declaration claiming damages was commencement of action for purposes of former Code 1863, § 3201 (see now O.C.G.A. § 18-3-4 ), though the defendant was not yet served. Graves v. Strozier, 37 Ga. 32 (1867).

Effect upon pending action of payment of costs of attachment. - When attachment is sued out against the defendant in a pending common-law action, payment by the defendant to the sheriff of the principal, interest, and costs upon the attachment in order to relieve the defendant's property from seizure does not discharge the defendant from any additional liability to which the defendant might have been subject in the original action. Johnson & Son v. Friedman-Shelby Shoe Co., 15 Ga. App. 561 , 83 S.E. 969 (1914).

Cited in Heath v. Bates, 70 Ga. 633 (1883); Donaldson v. Tripod Paint Co., 43 Ga. App. 3 , 158 S.E. 640 (1931); Sheehan v. Ruben, 83 Ga. App. 336 , 63 S.E.2d 605 (1951); Crawford v. Sumerau, 101 Ga. App. 32 , 112 S.E.2d 682 (1960).

JUDICIAL DECISIONS

Nature of removal for which attachment authorized. - Former Code 1868, § 3210 did not authorize attachment on ground that the executor or administrator was personally removing, but rather on ground that the executor or administrator is actually removing or about to remove property of the estate. Holloway v. Chiles, 40 Ga. 346 (1869).

Twelve-month exemption from suit allowed executors and administrators does not prevent levy of attachment against property of estate in hands of administrator or executor. Hartley v. Hartley, 173 Ga. 710 , 161 S.E. 358 (1931).

Proviso that final judgment not be entered for two years from commencement of administration. - Proviso in former Civil Code 1910, § 5068 that final judgment shall not be entered until expiration of two years from granting of letters of administration serves as a quasi-injunction to restrain administration of property upon which attachment has been levied until determination of issues which may be raised in attachment case. Hartley v. Hartley, 173 Ga. 710 , 161 S.E. 358 (1931).

Judgment in attachment will not raise priority of debt owed creditor of intestate in proceeding to marshal assets. Wooten v. Hartley, 186 Ga. 639 , 198 S.E. 750 (1838).

Cited in Ross v. Edwards, 52 Ga. 24 (1874).

RESEARCH REFERENCES

ALR. - Garnishment against executor or administrator by creditor of estate, 60 A.L.R.3d 1301.

JUDICIAL DECISIONS

Exception to rule that joint obligors are necessary parties. - Former Civil Code 1910, § 5067 provided an exception to rule that joint obligors are all necessary parties to suit on the obligation if within the jurisdiction of the court. Clark v. Maddox, 41 Ga. App. 807 , 154 S.E. 728 (1930).

In attachment against one member of partnership, the declaration need not be against all partners. Connon v. Dunlap, 64 Ga. 680 (1880).

Interest of one partner in partnership property was not subject to levy and sale under attachment; it could only be reached at law by process of garnishment. J.A. Holifield & Co. v. White, 52 Ga. 567 (1874) (decided prior to repeal of § 14-8-74 by Ga. L. 1984, p. 1439).

Partner as sole survivor and nonresident. - Attachment available against partner's interest in partnership when the partner is the only survivor and nonresident. Leroy M. Wiley & Co. v. Sledge, 8 Ga. 532 (1850).

Interest of tenants in common of a ship can be attached. Walter v. Kierstead, 74 Ga. 18 (1884).

Cited in Starr v. Mayer & Co., 60 Ga. 546 (1878); Shaw v. Goodman, 138 Ga. 567 , 75 S.E. 661 (1912).

RESEARCH REFERENCES

ALR. - Joint bank account as subject to attachment, garnishment, or execution by creditor of one of the joint depositors, 11 A.L.R.3d 1465.

JUDICIAL DECISIONS

This statute was cumulative and not restrictive of other attachment statutes; and nonresident corporation having property in this state is subject to attachment whether or not the corporation transacts business here. Pacific Selling Co. v. Albright-Prior Co., 3 Ga. App. 143 , 59 S.E. 468 (1907).

Construction of attachment law. - Attachment was unknown at common law, and should be strictly construed, especially as to nonresident debtors. Mitchell v. Union Bag & Paper Corp., 75 Ga. App. 15 , 42 S.E.2d 137 (1947).

Attachment against foreign corporation, also being sued in this state. - Fact that Georgia court may have personal jurisdiction over a corporation does not mean it is not subject also to attachment, for this statute was intended to authorize attachment against a foreign corporation, even though the corporation might be sued in Georgia. Image Mills, Inc. v. Vora, 146 Ga. App. 196 , 245 S.E.2d 882 (1978).

Whether doing business in this state or not, nonresident corporation is subject to attachment. Parramore v. Alexander, 132 Ga. 642 , 64 S.E. 660 (1909).

Affidavit alleging transaction of business in state. - Affidavit is sufficient which alleges the defendant, though not incorporated in this state, transacts business here. Parramore v. Alexander, 132 Ga. 642 , 64 S.E. 660 (1909).

Cited in Wilson v. Danforth, 47 Ga. 676 (1873); Selma, R. & D.R.R. v. Tyson, 48 Ga. 351 (1873); Mississippi Cent. R.R. Co. v. Plant, 58 Ga. 167 (1877); Schmidlapp & Co. v. La Confiance Ins. Co., 71 Ga. 246 (1883); Pacific Selling Co. v. Albright-Prior Co., 3 Ga. App. 143 , 59 S.E. 468 (1907); Louisiana State Rice Milling Co. v. Mente & Co., 173 Ga. 1 , 159 S.E. 497 (1931); Mitchell v. Union Bag & Paper Corp., 75 Ga. App. 15 , 42 S.E.2d 137 (1947).

RESEARCH REFERENCES

ALR. - Constitutionality of statute prescribing conditions of right of defendant in foreign attachment to appear and defend, 17 A.L.R. 884 .

Foreign corporation as a nonresident for purposes of attachment law of the state in which it is doing business or is domesticated, 114 A.L.R. 1378 .

Sufficiency of affidavit for attachment, respecting fraud or intent to defraud, as against objection that it is a mere legal conclusion, 8 A.L.R.2d 578.

Foreign attachment or garnishment as available in action by nonresident against nonresident or foreign corporation upon a foreign cause of action, 14 A.L.R.2d 420.

JUDICIAL DECISIONS

Cited in Patne v. Oliver, 96 Ga. App. 644 , 101 S.E.2d 154 (1957).

RESEARCH REFERENCES

2C Am. Jur. Pleading and Practice Forms, Attachment and Garnishment, § 452.

ALR. - What sort of claim, obligation, or liability is within contemplation of statute providing for attachment, or giving right of action for indemnity, before a debt or liability is due, 58 A.L.R.2d 1451.

Funds in hands of his attorney as subject of attachment or garnishment by client's creditor, 35 A.L.R.3d 1094.

JUDICIAL DECISIONS

No basis for writ of attachment. - Absent allegations of property in Georgia, there was no basis for the issuance of a writ of attachment since the defendants resided outside of Georgia. Ralls Corp. v. Huerfano River Wind, LLC, 27 F. Supp. 3d 1303 (N.D. Ga. 2014).

Cited in Kahn v. Herman, 3 Ga. 266 (1847); Deupree v. Eisenach, 9 Ga. 598 (1851); Dobbs v. Justices of Inferior Court, 17 Ga. 624 (1855); Holston Mfg. Co. v. Lea, 18 Ga. 647 (1855); Henderson v. Pittman, 20 Ga. 735 , 65 Am. Dec. 649 (1856); B.W. & J.P. Force & Co. v. Hubbard, 26 Ga. 289 (1858); Harrill v. Humphries, 26 Ga. 514 (1858); Brown & Sanford v. McCluskey, 26 Ga. 577 (1858); Cohen v. Manco, 28 Ga. 27 (1859); Stowers v. Carter, 28 Ga. 351 (1859); Brewer v. Ainsworth, 32 Ga. 487 (1861); Kennon & Klink v. Evans, Gardner & Co., 36 Ga. 89 (1867); Cox v. Felder, 36 Ga. 597 (1867); Irvin v. Howard, 37 Ga. 18 (1867); Wilkowski v. Halle, 37 Ga. 678 , 95 Am. Dec. 374 (1868); Mississippi Cent. R.R. Co. v. Plant, 58 Ga. 167 (1877); Guckenheimer & Son v. Day & Higgs, 74 Ga. 1 (1884); Krutina v. Culpepper, 75 Ga. 602 (1885); DeLeon v. Heller, Hirsch & Co., 77 Ga. 740 (1886); Jones v. Wylie, 82 Ga. 745 , 9 S.E. 614 (1889); Heard v. National Bank, 114 Ga. 291 , 40 S.E. 266 (1901); Levin v. American Furn. Co., 133 Ga. 670 , 66 S.E. 888 (1909); Silverman & Son v. Sloat & Bro., 11 Ga. App. 193 , 74 S.E. 938 (1912); Hensley v. Minehan, 29 Ga. App. 251 , 114 S.E. 647 (1922); Bennett v. Wheatley, 154 Ga. 591 , 115 S.E. 83 (1922); Friedman v. First Nat'l Bank, 31 Ga. App. 742 , 122 S.E. 81 (1924); West v. Gainesville Nat'l Bank, 32 Ga. App. 703 , 124 S.E. 733 (1924); Brach & Sons v. Oglesby Grocery Co., 33 Ga. App. 481 , 127 S.E. 157 (1925); Dulion v. S.A. Lynch Enter. Fin. Corp., 53 F.2d 568 (5th Cir. 1931); Harmon v. Wiggins, 48 Ga. App. 469 , 172 S.E. 847 (1934); Stalvey v. Varn Motors & Fin. Co., 56 Ga. App. 696 , 193 S.E. 627 (1937); Stone v. Atlantic Eng'r & Contracting Co., 95 Ga. App. 312 , 97 S.E.2d 709 (1957); Benefield v. Radiator Specialty Co., 116 Ga. App. 588 , 158 S.E.2d 423 (1967); Kazakos v. Soteres, 120 Ga. App. 258 , 170 S.E.2d 50 (1969); Jenkins v. Community Loan & Inv. Corp., 120 Ga. App. 543 , 171 S.E.2d 654 (1969); Reeves v. Motor Contract Co., 324 F. Supp. 1011 (N.D. Ga. 1971); Doran v. Home Mart Bldg. Centers, Inc., 233 Ga. 705 , 213 S.E.2d 825 (1975); Johnson v. American Credit Co., 581 F.2d 526 (5th Cir. 1978).

OPINIONS OF THE ATTORNEY GENERAL

Magistrate courts' power to order prejudgment attachment. - Because magistrate courts are not "courts of record" those courts may not order prejudgment attachment or garnishment. 1984 Op. Att'y Gen. No. U84-28.

RESEARCH REFERENCES

ALR. - Affidavits stating grounds of attachment on information and belief, 86 A.L.R. 588 .

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Failure to Give Attachment Bond
• Liability on Attachment Bond
• Recovery on Attachment Bond

RESEARCH REFERENCES

2C Am. Jur. Pleading and Practice Forms, Attachment and Garnishment, §§ 385, 452.

ALR. - Liability on attachment bond as affected by lack of levy or by invalid levy, 108 A.L.R. 917 .

Recovery of value of use of property wrongfully attached, 45 A.L.R.2d 1221.

Right to recover attorney's fees for wrongful attachment, 65 A.L.R.2d 1426.

What constitutes malice sufficient to justify an award of punitive damages in action for wrongful attachment or garnishment, 61 A.L.R.3d 984.

JUDICIAL DECISIONS

Constitutionality. - Proceeding under this statute afforded due process of law and did not violate U.S. Const., amend. 14. Continental Nat'l Bank v. Folsom, 78 Ga. 449 , 3 S.E. 269 (1887).

Service on security of nonresident national bank which gave bond under statute was sufficient. Continental Nat'l Bank v. Folsom, 78 Ga. 449 , 3 S.E. 269 (1887).

RESEARCH REFERENCES

C.J.S. - 72 C.J.S., Process, §§ 31, 32, 84.

JUDICIAL DECISIONS

Partner cannot be surety on partnership bond. Copeland & Co. v. Monroe, 16 Ga. App. 586 , 85 S.E. 789 (1915).

Cited in Williams Bros. Lumber Co. v. Anderson, 210 Ga. 198 , 78 S.E.2d 612 (1953).

RESEARCH REFERENCES

ALR. - Affidavits stating grounds of attachment on information and belief, 86 A.L.R. 588 .

JUDICIAL DECISIONS

Plaintiff's attorney as surety. - Former Civil Code 1895, § 4514 was directory; consequently, a proceeding was not void when plaintiff's attorney signs bond as surety. Husband Bros. v. Georgia S. & Florida Ry. Co., 3 Ga. App. 157 , 59 S.E. 326 (1907).

Cited in Burton v. Wynne, 55 Ga. 615 (1876).

JUDICIAL DECISIONS

No question of amendment can be entertained, except amendment of bond, and of that only insofar as may be necessary to make the bond conform to law as a bond in support of attachment as originally issued and levied. Lockett v. DeNeufville, 55 Ga. 454 (1875).

Amendment of bond. - Plaintiff in attachment may amend the plaintiff's bond, "as in other cases at common law." Collins v. Southern Fin. Corp., 51 Ga. App. 400 , 180 S.E. 744 (1935).

Amendment of bond which was absolutely void was not authorized by this statute. Copeland & Co. v. Monroe, 16 Ga. App. 586 , 85 S.E. 789 (1915).

Filing of attachment bond for first time at trial term was not authorized by statute. Copeland & Co. v. Monroe, 16 Ga. App. 586 , 85 S.E. 789 (1915).

Burden of proof is on defendant to show insufficiency of bond. Reid v. Armour Packing Co., 93 Ga. 696 , 21 S.E. 131 (1894); Stephens v. Woodson, 8 Ga. App. 639 , 70 S.E. 55 (1911).

Time for raising objection. - Judgment on attachment not void for insufficiency of bond when question not raised in proceeding. Collins v. Southern Fin. Corp., 51 Ga. App. 400 , 180 S.E. 744 (1935).

Surety on bond as a minor whose contracts are voidable. - Contract made by minor not void, but is voidable only; it is therefore no ground for dismissal of attachment that surety upon attachment bond executed by plaintiff in attachment was a minor. Benjamin v. Pardue, 44 Ga. App. 587 , 162 S.E. 291 (1932).

Cited in Gregory v. Clark, 73 Ga. 542 (1884); Reid v. Armour Packing Co., 93 Ga. 696 , 21 S.E. 131 (1894); Kesler v. Groover, 58 Ga. App. 548 , 199 S.E. 332 (1938); Kitson v. Hawke, 231 Ga. 157 , 200 S.E.2d 703 (1973); Hagopian v. Consolidated Equities Corp., 397 F. Supp. 934 (N.D. Ga. 1975).

RESEARCH REFERENCES

ALR. - Constitutionality of statute prescribing conditions of right of defendant in foreign attachment to appear and defend, 17 A.L.R. 884 .

Duty to give bond and procure return of property in order to mitigate damages from its wrongful seizure under legal process, 33 A.L.R. 1479 .

Value of attached property as limit of liability on bond to release attachment, 80 A.L.R. 595 .

Liability on attachment bond as affected by lack of levy or by invalid levy, 108 A.L.R. 917 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1868, § 3233, former Code 1873, § 3309, former Code 1882, § 3309, and former Code 1933, § 8-602, dealing with notice to the defendant, have been included in the annotations for this Code section.

Absent personal service, appearance, or replevy, in personam judgment is void. - When the defendants were not personally served with notice of pendency of attachment, did not appear and defend, and did not give bond and security to replevy property attached, an in personam judgment against the defendants was accordingly erroneous. Broome v. Graham, 99 Ga. App. 682 , 109 S.E.2d 824 (1959) (decided under former Code 1933, § 8-602).

Contents of notice. - Written notice to the defendant that attachment was pending against the defendant stating the court to which attachment was returnable, and the time, and stating on what property attachment had been levied, was sufficient compliance with former Code 1868, § 3233 to authorize proceedings as in ordinary suit, especially if the defendant appeared and pleaded to the merits. Pool v. Perdue, 44 Ga. 454 (1871) (decided under former Code 1868, § 3233).

Administrator of defendant who dies pending attachment. - If, pending attachment, the defendant dies, and the defendant's administrator was made party to the proceeding, and no notice was given, as provided by former Code 1873, § 3309, the administrator stood precisely as did the deceased defendant. The administrator may attack the validity of the attachment, and if the administrator's objection was good the whole proceeding fell. Ross v. Edwards, 52 Ga. 24 (1874) (decided under former Code 1873, § 3309).

When defendant receives sufficient notice and fails to defend. - When nonresident defendants in attachment were given sufficient notice to put the defendants upon inquiry in time to have defended, but failed to do so, the supreme court will not control decision of presiding judge in refusing to allow the defendants to open judgment rendered in an attachment case for purpose of pleading to merits. Steers & Co. v. Morgan & Armstrong, 66 Ga. 552 (1881) (decided under former Code 1873, § 3309).

Plaintiff may entitle self to general judgment against defendant by giving prescribed notice. Sutton v. Gunn, 86 Ga. 652 , 12 S.E. 979 (1891) (decided under former Code 1882, § 3309).

Effect on third persons of judgment by court without jurisdiction. - General judgment of court without jurisdiction of particular class of attachments will not be valid against third persons although the judgment might be good against a defendant. First Nat'l Bank v. Ragan, 92 Ga. 333 , 18 S.E. 295 (1893) (decided under former Code 1882, § 3309).

Absence of signature on notice of attachment. - Although notices of attachment were not signed by the plaintiff, plaintiff's attorney, or anyone as agent for the plaintiff, when the notices conveyed information required by statute and defendants were in no manner prejudiced by absence of a signature, the notice was sufficient to entitle the plaintiff to judgment on the declaration filed as at common law. Stalvey v. Varn Motors & Fin. Co., 56 Ga. App. 696 , 193 S.E. 627 (1937).

Cited in Cox v. Felder, 36 Ga. 597 (1867); Tharpe v. Foster, 52 Ga. 79 (1874); Bennett v. Wheatley, 154 Ga. 591 , 115 S.E. 83 (1922); Gaston v. Jackson Nat'l Bank, 45 Ga. App. 106 , 163 S.E. 265 (1932); Higgins v. Gosden, 53 Ga. App. 313 , 185 S.E. 574 (1936); Stalvey v. Varn Motors & Fin. Co., 56 Ga. App. 696 , 193 S.E. 627 (1937); Sassoon v. State, 138 Ga. App. 172 , 225 S.E.2d 732 (1976); Johnson v. American Credit Co., 581 F.2d 526 (5th Cir. 1978).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1868, § 3236, former Code 1873, § 3312, former Code 1882, § 3312, former Civil Code 1895, § 4560, and former Civil Code 1910, § 5107 are included in the annotations for this Code section.

Traverse need not be sworn to. Ouzts v. Seabrook, 47 Ga. 359 (1872) (decided under former Code 1868, § 3236).

Demurrer (now motion to dismiss) may be filed for lack of affidavit and attachment dismissed. DeLeon v. Heller, Hirsch & Co., 77 Ga. 740 (1886) (decided under former provisions).

Denial of truth of ground for attachment may be treated as traverse. Cooley v. Abbey, 111 Ga. 439 , 36 S.E. 786 (1900) (decided under former Code 1893, § 4560).

Third-party claimant to property levied upon. - Claimant of property levied on by execution issued on judgment founded on attachment cannot, on trial of claim, traverse grounds on which attachment issued. Foster v. Higginbotham, 49 Ga. 263 (1873) (decided under former Code 1882, § 3312).

Burden of proof. - On trial of traverse, burden of proof is on plaintiff in attachment. Oliver v. Wilson, 29 Ga. 642 (1859) (decided prior to codification of this principle).

Admissibility of evidence to sustain traverse after replevy of attached property. - When ground of attachment is duly traversed, defendant is entitled to introduce evidence to sustain the defendant's traverse, and presiding justice errs in holding that it is too late to do this after the defendant has replevied property attached. Brumby v. Rickoff, 94 Ga. 429 , 21 S.E. 232 (1894) (decided under former Code 1873, § 3312).

Plaintiff is competent witness as to traverse by administrator regarding contract entered with intestate. - When the plaintiff makes an affidavit for purpose of obtaining attachment against an administrator, and the administrator files traverse to affidavit, the plaintiff is a competent witness upon trial of issue formed, even though the contract, which is the foundation of the plaintiff's claim, was made with intestate. Effect of verdict for the defendant, upon such issue, is a dismissal of attachment. Ouzts v. Seabrook, 47 Ga. 359 (1872) (decided under former Code 1868, § 3236).

Waiver. - Objections to form of affidavit are waived by appearance of the defendant, and pleading to the merits. Pool v. Perdue, 44 Ga. 454 (1871) (decided under former Code 1868, § 3236).

Defendant in attachment does not waive traverse to the plaintiff's affidavit by afterwards pleading to the merits of the action. The two defenses are perfectly consistent, the former going to the writ and the latter to the declaration. Parker v. Brady, 56 Ga. 372 (1876) (decided under former Code 1868, § 3236).

Effect of finding issue in defendant's favor. - When issue on traverse is found in favor of the defendant, all defendant gains is that levy falls, and if judgment is obtained on merits the judgment does not date from time of levy, but the judgment would take lien on property attached as well as on other property from date of judgment only. Blakely Milling & Trading Co. v. Thompson, 34 Ga. App. 129 , 128 S.E. 688 (1924) (decided under former Civil Code 1910, § 5107).

Intervenor's right to traverse affidavit of attachment. - Construing O.C.G.A. §§ 18-3-15 and 18-3-50 in pari materia, in light of the due process requirements, the intervenor has the same right to traverse the plaintiff's affidavit of attachment as the defendant, and once the affidavit of attachment is traversed, the procedure to follow is the same as that accorded the defendant. Trax, Inc. v. Pentagon Aero-Marine Corp., 162 Ga. App. 276 , 290 S.E.2d 196 (1982).

Cited in Williams v. Williams, 170 Ga. App. 563 , 317 S.E.2d 625 (1984).

RESEARCH REFERENCES

ALR. - Filing bond to secure release or return of seized property as appearance, 57 A.L.R.2d 1109.

JUDICIAL DECISIONS

Omission in pleadings of oath required is amendable when necessary facts existed at time of attachment under this statute was issued. Sloan v. Smith, 29 Ga. App. 591 , 116 S.E. 200 (1923).

RESEARCH REFERENCES

ALR. - Power of municipal corporation to legislate as to Sunday observance, 37 A.L.R. 575 .

JUDICIAL DECISIONS

Cited in Wanet v. Corbet, 13 Ga. 441 (1853); Duke v. Horton, 32 Ga. 637 (1861); Chapman v. Woodruff, 34 Ga. 91 (1864); Irvin v. Howard, 37 Ga. 18 (1867); Nashville, Chattanooga & St. Louis Ry. Co. v. Cleghorn & Co., 94 Ga. 413 , 21 S.E. 227 (1894); Woodward Lumber Co. v. Vizard, 144 F. 982 (N.D. Ga. 1906); National Bank v. Pritchard, 4 Ga. App. 46 , 61 S.E. 841 (1908); Ferger Grain Co. v. Eatonton Milling & Grocery Co., 17 Ga. App. 170 , 86 S.E. 401 (1915); Tygart v. Domestic Elec. Co., 151 Ga. 624 , 107 S.E. 866 (1921); Watters & Co. v. O'Neill, 151 Ga. 680 , 108 S.E. 35 (1921); Carroll & Downs v. Groover, 27 Ga. App. 747 , 110 S.E. 30 (1921); Bailey v. Kennett, 32 Ga. App. 255 , 122 S.E. 804 (1924); Farmers Hdwe. Co. v. Bearden, 32 Ga. App. 445 , 123 S.E. 730 (1924); Gaston v. Jackson Nat'l Bank, 45 Ga. App. 106 , 163 S.E. 265 (1932); Harmon v. Wiggins, 48 Ga. App. 469 , 172 S.E. 847 (1934); Stalvey v. Varn Motors & Fin. Co., 56 Ga. App. 696 , 193 S.E. 627 (1937); Grand Trunk W.R.R. v. Barge, 75 Ga. App. 646 , 44 S.E.2d 281 (1947); Harris v. McDaniel, 92 Ga. App. 299 , 88 S.E.2d 442 (1955); Parker v. Mercer, 111 Ga. App. 108 , 140 S.E.2d 915 (1965); Peterson v. General Shoe Corp., 115 Ga. App. 12 , 153 S.E.2d 637 (1967); Benefield v. Radiator Specialty Co., 116 Ga. App. 588 , 158 S.E.2d 423 (1967); Tennessee-Virginia Constr. Co. v. Willingham, 117 Ga. App. 290 , 160 S.E.2d 444 (1968); Smith v. Hooks, 117 Ga. App. 837 , 162 S.E.2d 296 (1968); Merchants & Mfrs. Transf. Co. v. Auto Rental & Leasing, Inc., 121 Ga. App. 729 , 175 S.E.2d 156 (1970); Smith v. Robinson, 122 Ga. App. 693 , 178 S.E.2d 697 (1970); M & M Transf. Co. v. Auto Rental & Leasing, Inc., 313 F. Supp. 907 (N.D. Ga. 1970); Hagopian v. Consolidated Equities Corp., 397 F. Supp. 934 (N.D. Ga. 1975); Johnson v. American Credit Co., 581 F.2d 526 (5th Cir. 1978).

RESEARCH REFERENCES

ALR. - Attachment or garnishment as affected by trick or device by which the property of or indebtedness to nonresident was subjected to the jurisdiction, 37 A.L.R. 1255 .

RESEARCH REFERENCES

ALR. - Attack by defendant upon attachment or garnishment as an appearance subjecting him personally to jurisdiction, 129 A.L.R. 1240 .

JUDICIAL DECISIONS

Affidavit may be sufficient in form though it does not show that debt is due. Askew v. Melvin, 144 Ga. 348 , 87 S.E. 278 (1915).

Variance in defendant's name in required documents. - Variance between affidavit and bond on one hand and attachment on the other, in the name of party against whom proceedings are brought is fatal to the attachment. Leffler & Son v. Union Compress Co., 126 Ga. 662 , 55 S.E. 927 (1906).

Bill of particulars not annexed to papers. - Attachment not necessarily void because no bill of particulars is annexed to original attachment papers. Pharr v. Estey Piano & Organ Co., 7 Ga. App. 262 , 66 S.E. 618 (1909).

Absent levy or seizure of property under attachment there can be no recovery on bond. Hinton-Bellah, Inc. v. Thebit, 62 Ga. App. 672 , 9 S.E.2d 779 (1940).

Effect of release on recovery of attachment expenses. - Fact that plaintiff's property had been released did not preclude the plaintiff from recovering expense sustained in consequence of the attachment. Hinton-Bellah, Inc. v. Thebit, 62 Ga. App. 672 , 9 S.E.2d 779 (1940).

Damages recoverable on attachment expenses. - Hinton-Bellah, Inc. v. Thebit, 62 Ga. App. 672 , 9 S.E.2d 779 (1940).

Cited in Cohen v. Manco, 28 Ga. 27 (1859); Graves v. Rivers, 123 Ga. 224 , 51 S.E. 318 (1905); Thebit v. Hinton-Bellah, Inc., 57 Ga. App. 205 , 194 S.E. 894 (1938).

RESEARCH REFERENCES

2B Am. Jur. Pleading and Practice Forms, Attachment and Garnishment, § 91. 2C Am. Jur. Pleading and Practice Forms, Attachment and Garnishment, § 340.

JUDICIAL DECISIONS

Levy failing to state that property was levied on as property of the defendant was amendable and such defect was not ground for arresting judgment. Flegal v. Loveless, 93 Ga. App. 41 , 90 S.E.2d 606 (1955).

Absence of signature on notice of attachment. - Although notices of attachment were not signed by the plaintiff, the plaintiff's attorney, or anyone as agent for the plaintiff, where the notices conveyed information required by statute and defendants were in no manner prejudiced by absence of a signature, the notice was sufficient to entitle the plaintiff to judgment on the declaration filed as at common law. Stalvey v. Varn Motors & Fin. Co., 56 Ga. App. 696 , 193 S.E. 627 (1937).

Cited in B.W. & J.P. Force & Co. v. Hubbard, 26 Ga. 289 (1858); Kennon & Klink v. Evans, Gardner & Co., 36 Ga. 89 (1867); Irvin v. Howard, 37 Ga. 18 (1867); Black v. Scanlon, 48 Ga. 12 (1873); Neal v. Gordon, 60 Ga. 112 (1878); Pharr v. Estey Piano & Organ Co., 7 Ga. App. 262 , 66 S.E. 618 (1909).

JUDICIAL DECISIONS

Presumption in favor of officer. - Absent evidence to the contrary, it is presumed that an officer did the officer's duty and did not exceed the officer's authority under this statute. Connolly v. Atlantic Contracting Co., 120 Ga. 213 , 47 S.E. 575 (1904).

Failure to state where levy was made. - When return of an officer on levy of attachment fails to show in what county the levy was made, but the levy is in other respects legal and regular, failure to set out where levy was made is not ground for dismissal. Connolly v. Atlantic Contracting Co., 120 Ga. 213 , 47 S.E. 575 (1904).

Levy by sheriff of attachment which should properly be levied by a constable is invalid. Pearce & Renfroe v. Renfroe Bros., 68 Ga. 194 (1881).

Cited in Massengale v. McGinty, 73 Ga. 120 (1884); McFarlin v. Board of Drainage Comm'rs, 153 Ga. 766 , 113 S.E. 447 (1922); Lane v. Bradfield, 37 Ga. App. 395 , 140 S.E. 417 (1927); Peterson v. General Shoe Corp., 115 Ga. App. 12 , 153 S.E.2d 637 (1967); Trax, Inc. v. Pentagon Aero-Marine Corp., 162 Ga. App. 276 , 290 S.E.2d 196 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Escrow accounts of real estate brokers are not subject to attachment when broker is defendant inasmuch as money in such accounts is not property of the broker nor does it constitute a debt free from contingencies. 1972 Op. Att'y Gen. No. 72-1.

RESEARCH REFERENCES

ALR. - Levy upon or garnishment of contents of safety deposit box, 39 A.L.R. 1215 .

Replevin for bank account, 44 A.L.R. 1522 .

Contingent remainder as subject to levy and sale by creditor, 60 A.L.R. 803 .

Interest of vendee under conditional sales contract as subject to attachment, garnishment, or execution, 61 A.L.R. 781 .

Liability of sheriff or other officer executing process of execution or attachment for failure to seize sufficient property, 93 A.L.R. 316 .

Maintainability of replevin or similar possessory action where defendant, at time action is brought, is no longer in possession of property, 97 A.L.R. 896 .

Bank deposit as subject of garnishment for debt of depositor as affected by previous acts by bank in relation to deposit, 107 A.L.R. 697 .

Joint bank account as subject to attachment, garnishment, or execution by creditor of one of the joint depositors, 11 A.L.R.3d 1465.

Potential liability of insurer under liability policy as subject of attachment, 33 A.L.R.3d 992.

Liquor license as subject to execution or attachment, 40 A.L.R.4th 927.

JUDICIAL DECISIONS

Omission of description of property on attachment docket. - Though entry on attachment docket respecting attachment upon land does not contain description of the property, it may not be taken advantage of by a claimant to the property who acquired the property under fraudulent circumstances. Deveney, Hood & Co. v. Burton, 110 Ga. 56 , 35 S.E. 268 (1900).

Nature of lien of judgment creditor; limitation of judgment's scope. - Lien of a judgment creditor is not a lien acquired by contract; but is given by law. The judgment creditor is not, therefore, in the position of a bona fide purchaser, and the judgment creditor's lien extends only to property levied upon which actually belongs to the defendant in attachment. Parker v. Boyd, 208 Ga. 829 , 69 S.E.2d 760 (1952).

JUDICIAL DECISIONS

Cited in Gaston v. Jackson Nat'l Bank, 45 Ga. App. 106 , 163 S.E. 265 (1932); Stalvey v. Varn Motors & Fin. Co., 56 Ga. App. 696 , 193 S.E. 627 (1937).

RESEARCH REFERENCES

ALR. - Attachment proceedings as affected by officer's failure to comply with statutory requirements as to return or inventory, 93 A.L.R. 748 .

Maintainability of replevin or similar possessory action where defendant, at time action is brought, is no longer in possession of property, 97 A.L.R.2d 896.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Effect of Replevy Bond
• Liability of Surety

RESEARCH REFERENCES

ALR. - Voluntary dismissal of repleving action by plaintiff as affecting defendant's right to judgment for the return or value of the property, 2 A.L.R. 200 .

Recovery for depreciation of property between the date it was replevied and final judgment, 24 A.L.R. 1189 .

Replevin for an undivided share in or undivided quantity of a larger mass, 26 A.L.R. 1015 .

Duty to give bond and procure return of property in order to mitigate damages from its wrongful seizure under legal process, 33 A.L.R. 1479 .

Liability on bond in replevin as affected by superior title or lien of third person, or seizure thereunder, 36 A.L.R. 1102 .

Premium for redelivery bond as item of damages for wrongful attachment, 42 A.L.R. 1057 .

Sufficiency of offer or tender to satisfy requirement of judgment or condition of bond in replevin for delivery or redelivery of chattels, 57 A.L.R. 806 .

Answering to merits or giving bond for release of attachment as waiver of objections to attachment, 72 A.L.R. 120 .

Liability of surety on replevin bond as affected by amendment of pleadings in replevin, 90 A.L.R. 541 .

Right of one joint owner of personal property to maintain against third person replevin, detinue, trover, or other action to recover possession or damages, 110 A.L.R. 353 .

Recovery of damages in replevin for usable value of property detained, by successful party having only security interest as conditional vendor, chattel mortgagee, or the like, 33 A.L.R.2d 774.

Filing bond to secure release or return of seized property as appearance, 57 A.L.R.2d 1109.

Posting of redelivery bond by defendant in attachment as waiver of damages for wrongful attachment, 57 A.L.R.2d 1376.

Replevin or claim-and-delivery: Modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233.

JUDICIAL DECISIONS

Cited in Turner's Chapel A.M.E. Church v. Lord Lumber Co., 121 Ga. 376 , 49 S.E. 272 (1904); Parramore v. Alexander, 132 Ga. 642 , 64 S.E. 660 (1909).

RESEARCH REFERENCES

ALR. - Recovery for depreciation of property between the date it was replevied and final judgment, 24 A.L.R. 1189 .

Duty to give bond and procure return of property in order to mitigate damages from its wrongful seizure under legal process, 33 A.L.R. 1479 .

Premium for redelivery bond as item of damages for wrongful attachment, 42 A.L.R. 1057 .

Sufficiency of offer or tender to satisfy requirement of judgment or condition of bond in repleving for delivery or redelivery of chattels, 57 A.L.R. 806 .

JUDICIAL DECISIONS

Intervention in action. - Claimant who alleges being the true owner is permitted to intervene in an attachment action. Trax, Inc. v. Pentagon Aero-Marine Corp., 162 Ga. App. 276 , 290 S.E.2d 196 (1982).

Construing O.C.G.A. §§ 18-3-15 and 18-3-31 in pari materia, in light of the due process requirements, the intervenor has the same right to traverse the plaintiff's affidavit of attachment as the defendant, and once the affidavit of attachment is traversed, the procedure to follow is the same as that accorded the defendant. Trax, Inc. v. Pentagon Aero-Marine Corp., 162 Ga. App. 276 , 290 S.E.2d 196 (1982).

Only issue in third-party claim requires determination of who has title. - When property is levied on by virtue of attachment and is claimed by one not party to the attachment, the only issue on trial requires determination of who has title to the property. Bank of Manchester v. Universal Credit Co., 45 Ga. App. 233 , 164 S.E. 95 (1932).

Prevailing party refusing to take property back and seeking value instead. - When tortious levy is made upon property of one not party to the process, and one files statutory claim to the property one cannot, upon recovering judgment finding the property not subject, refuse to take the property back from the officer, and instead seek to hold person causing the levy liable for the property's full market value. Maxwell v. Speth, 9 Ga. App. 745 , 72 S.E. 292 (1911).

To whom bond payable. - When a claim for property attached is not interposed until after judgment on attachment, claim bond should be made payable to the sheriff as in other claim cases. Benton v. Benson, 32 Ga. 354 (1861).

Cited in James Selman & Co. v. Shackelford, 17 Ga. 615 (1855); Manufacturers' Fin. Acceptance Corp. v. Bradley, 50 Ga. App. 138 , 177 S.E. 272 (1934); Rahal v. Titus, 107 Ga. App. 844 , 131 S.E.2d 659 (1963).

JUDICIAL DECISIONS

Refusal to deliver property was a forfeiture of the bond. Stinson v. Hall, 54 Ga. 676 (1875).

Breach of bond. - There is a breach of bond when the property has been consumed or otherwise disposed of so as to render it impossible for obligors in bond to deliver the property to levying officer on demand. Manufacturers' Fin. Acceptance Corp. v. Bradley, 50 Ga. App. 138 , 177 S.E. 272 (1934).

Claimant's inability to deliver property, resulting from claimant's sale of the property, dispenses with advertisement and is a breach of claimant's bond. Lassiter v. Byrd & Coker, 55 Ga. 606 (1876).

When claimant breached claimant's bond by converting property and dismissing claimant's claim, claimant thereby waives the right, on trial of suit for breach of bond, to assert that property was not subject to attachment. Earnest v. Barrett, 55 Ga. App. 482 , 190 S.E. 635 (1937).

Cited in Thompson v. O'Connor, 115 Ga. 120 , 41 S.E. 242 (1902).

RESEARCH REFERENCES

ALR. - Recovery for depreciation of property between the date it was replevied and final judgment, 24 A.L.R. 1189 .

Sufficiency of offer or tender to satisfy requirement of judgment or condition of bond in replevin for delivery or redelivery of chattels, 57 A.L.R. 806 .

Right of one joint owner of personal property to maintain against third person replevin, detinue, trover, or other action to recover possession or damages, 110 A.L.R. 353 .

Replevin or claim-and-delivery: Modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233.

JUDICIAL DECISIONS

Issue in third-party claim. - When levy was made under attachment before judgment, and a claim interposed thereto, the issue was whether property levied on was that of the defendant in attachment or that of the claimant. Cecil & Thrasher v. Gazan, 71 Ga. 631 (1883).

Admissibility of attachment proceedings. - Attachment proceedings are admissible in a claim proceeding, though judgment therein is defective. Cecil & Thrasher v. Gazan, 71 Ga. 631 (1883).

Trial of intervenor's traverse claim in the same manner as defendant's traverse. - See Trax, Inc. v. Pentagon Aero-Marine Corp., 162 Ga. App. 276 , 290 S.E.2d 196 (1982).

Cited in Curtis v. Wortsman, 26 F. 36 (S.D. Ga. 1885); Foremost Dairies, Inc. v. Kelley, 51 Ga. App. 722 , 181 S.E. 204 (1935); Rahal v. Titus, 107 Ga. App. 844 , 131 S.E.2d 659 (1963).

JUDICIAL DECISIONS

Inability to produce property is equivalent to failure to produce property. Manufacturers' Fin. Acceptance Corp. v. Bradley, 50 Ga. App. 138 , 177 S.E. 272 (1934).

Occurrence of breach. - There is a breach of bond when property has been consumed or otherwise disposed of so as to render it impossible for obligors in bond to deliver the property to levying officer on demand. Manufacturers' Fin. Acceptance Corp. v. Bradley, 50 Ga. App. 138 , 177 S.E. 272 (1934).

Defendant raising defenses decided against defendant in prior claim case. - One who files claim to levy of attachment and replevies property by giving a forthcoming bond cannot, after judgment has been rendered in the claim case finding the property subject, set up, in defense to an action upon the forthcoming bond, any contention decided against that person by the judgment in the claim case. Thompson v. O'Connor, 115 Ga. 120 , 41 S.E. 242 (1902).

Cited in Wade v. Wortsman, 29 F. 754 (S.D. Ga. 1887).

RESEARCH REFERENCES

ALR. - Recovery for depreciation of property between the date it was replevied and final judgment, 24 A.L.R. 1189 .

Right of one joint owner of personal property to maintain against third person replevin, detinue, trover, or other action to recover possession or damages, 110 A.L.R. 353 .

Recovery of attorney's fees as damages by successful litigant in replevin or detinue action, 60 A.L.R.2d 945.

JUDICIAL DECISIONS

Cited in Frost v. Gibson, 59 Ga. 600 (1877); Walker v. Chambers & Co., 85 Ga. 136 , 11 S.E. 582 (1890).

RESEARCH REFERENCES

ALR. - Recovery for depreciation of property between the date it was replevied and final judgment, 24 A.L.R. 1189 .

Liability of garnishee to garnishing creditor for depreciation in value of property pending contest, 32 A.L.R. 572 .

Sufficiency of offer or tender to satisfy requirement of judgment or condition of bond in replevin for delivery or redelivery of chattels, 57 A.L.R. 806 .

Liability of surety on replevin bond as affected by amendment of pleadings in replevin, 90 A.L.R. 541 .

Replevin bond or redelivery bond in replevin as covering damages for detention between judgment against principal and delivery or redelivery of property, 90 A.L.R. 972 .

Right of one joint owner of personal property to maintain against third person replevin, detinue, trover, or other action to recover possession or damages, 110 A.L.R. 353 .

JUDICIAL DECISIONS

Issue in claim interposed before judgment is whether property levied on is claimant's or defendant's. W.B. Parham & Co. v. Potts-Thompson Liquor Co., 127 Ga. 303 , 56 S.E. 460 (1907).

Claim interposed pending attachment dismissed for irregularity. - If a claim, interposed pending attachment, be dismissed for irregularity, such dismissal is no bar to another claim, after judgment on the attachment. Benton v. Benson, 32 Ga. 354 (1861).

Third person, not party to attachment, may claim property at any time before the property's sale. Simmons v. Bennett, 20 Ga. 48 (1856).

Cited in Rogers v. Bates, 19 Ga. 545 (1856); Cecil & Thrasher v. Gazan, 71 Ga. 631 (1883).

JUDICIAL DECISIONS

Cited in Keishian v. Buckley, 752 F.2d 1513 (11th Cir. 1984).

JUDICIAL DECISIONS

Financial institution did not include insurance company garnished as employer. - Insurance company was not a "financial institution" under the financial institution garnishment scheme, O.C.G.A. §§ 18-4-1(4) and 18-4-4(c)(2), when the insurance company was garnished based on earnings that the company owed the debtor as the debtor's former employer; rather, the statutes envisioned places of deposit for a debtor's funds or investments. Blach v. Diaz-Verson, 303 Ga. 63 , 810 S.E.2d 129 (2018).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1884-55, p. 54, former Civil Code 1895, § 4708, former Civil Code 1910, §§ 5265 and 5268, former Ga. L. 1976, p. 1608, § 1, former O.C.G.A. § 18-4-3 , and former O.C.G.A. T. 18, Ch. 4, Art. 4 are included in the annotations for this Code section.

Constitutionality. - Postjudgment garnishment procedure meets requirements of judicial supervision and notice, and is not unconstitutional for those reasons. Easterwood v. LeBlanc, 240 Ga. 61 , 239 S.E.2d 383 (1977) (decided under former Ga. L. 1976, p. 1608, § 1); Farmer v. Farmer, 147 Ga. App. 387 , 249 S.E.2d 106 (1978) (decided under former Ga. L. 1976, p. 1608, § 1).

Post-judgment garnishment proceedings are not unconstitutional for lack of due process. Morgan v. Morgan, 156 Ga. App. 726 , 275 S.E.2d 673 (1980) (decided under former Ga. L. 1976, p. 1608, § 1).

Amendment after evidence but prior to judgment. - It was not error to allow a party to amend the party's garnishment affidavit only a few days before judgment, and after all the evidence had been presented. Coleman v. Burnett, 169 Ga. App. 297 , 312 S.E.2d 627 (1983) (decided under former O.C.G.A. § 18-4-3 ).

Absence of a judge's or clerk's signature on an affidavit for garnishment did not constitute a nonamendable defect justifying the grant of a motion to set aside a judgment. Horizon Credit Corp. v. Lanier Bank & Trust Co., 220 Ga. App. 362 , 469 S.E.2d 452 (1996) (decided under former O.C.G.A. § 18-4-3 ).

Parties to proceedings. - Post-judgment garnishments primarily involve a plaintiff (bank) and garnishee (employer) with a very limited right of participation by the defendant (debtor). Flournoy v. Pate (In re Antley), 18 Bankr. 207 (Bankr. M.D. Ga. 1982) (decided under former O.C.G.A. T. 18, Ch. 4, Art. 4).

Defendant debtor was not a "party" to a garnishment proceeding, although provision was made in former O.C.G.A. § 18-4-64 for defendant debtor to receive notice. The defendant debtor at the defendant debtor's option may become a party by compliance with former O.C.G.A. § 18-4-93 for the limited purposes set out in former O.C.G.A. § 18-4-65. Flournoy v. Pate (In re Antley), 18 Bankr. 207 (Bankr. M.D. Ga. 1982) (decided under former O.C.G.A. T. 18, Ch. 4, Art. 4).

Dismissal of proceeding upon notification of bankruptcy. - Judgment creditor's attorney had an affirmative duty to dismiss the garnishment proceeding upon notification of bankruptcy. Dennis v. Pentagon Fed. Credit Union, 17 Bankr. 558 (Bankr. M.D. Ga. 1982) (decided under former O.C.G.A. T. 18, Ch. 4, Art. 4).

Proceedings must be based on a domestic, not a foreign judgment. Union Inv. Co. v. Southern Ry., 32 Ga. App. 478 , 124 S.E. 77 , cert. denied, 32 Ga. App. 808 (1924) (decided under former Civil Code 1910, § 5265).

Separate affidavit and bond is required for each judgment as to which garnishment is sought. Rich & Co. v. Kiser & Co., 61 Ga. 370 (1878) (decided under former Ga. L. 1884-55, p. 54).

Impact of consolidation. - Consolidation by assignee of two executions issued on judgments obtained in separate suits in affidavit and bond renders proceedings illegal and void. Morgan v. Latham, 111 Ga. 835 , 36 S.E. 99 (1900) (decided under former Civil Code 1895, § 4708); Wright v. Stewart, 22 Ga. App. 655 , 97 S.E. 193 (1918) (decided under former Civil Code 1910, § 5268).

RESEARCH REFERENCES

C.J.S. - 38 C.J.S., Garnishment, § 140 et seq.

ALR. - Discharge of attachment or garnishment, or bond for its dissolution, by subsequent amendment of pleadings or writ, 74 A.L.R. 912 .

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Constitutionality

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Attachment and Garnishment, § 330 et seq.

C.J.S. - 38 C.J.S., Garnishment, § 158 et seq.

ALR. - Waiver or admission by garnishee as affecting principal defendant, 64 A.L.R. 430 .

Liability of garnishee to garnisher where former pays debt or releases property pending defective garnishment proceedings, 89 A.L.R. 975 .

Resident or foreign corporation doing business within state as subject to garnishment because of indebtedness to nonresident who in turn is indebted to nonresident principal defendant, 116 A.L.R. 387 .

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Constitutionality
• What Is Subject to Garnishment
• Setoff by Garnishee

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions decided under former Code 1933, § 46-301 as it read after passage of Ga. L. 1976, p. 1608, § 1 are included in the opinions for this Code section.

Right of setoff exists in garnishee-employer respecting indebtedness of defendant-employee to garnishee employer as against claim of plaintiff in garnishment; thus, the garnishee is entitled to pay oneself from earnings accruing to the employee before paying the plaintiff in garnishment. 1976 Op. Att'y Gen. No. U76-26 (decided under former Code 1933, § 46-301).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Attachment and Garnishment, §§ 69 et seq., 107.

C.J.S. - 38 C.J.S., Garnishment, § 173.

ALR. - Money due only on further performance of contract by debtor as subject to garnishment, 2 A.L.R. 506 .

Rights of holder of check as affected by garnishment of drawer's bank account, 5 A.L.R. 587 .

Garnishment of bank in suit against the payee or other holder of a check upon the bank, 5 A.L.R. 589 .

Levy upon or garnishment of contents of safety deposit box, 19 A.L.R. 863 ; 39 A.L.R. 1215 .

Judgment as subject to garnishment in another court of the state in which it was rendered, 43 A.L.R. 190 .

Money or other property taken from prisoner as subject of attachment, garnishment, or seizure under execution, 48 A.L.R. 583 .

Priority of assignment of chose in action over subsequent garnishment as affected by lack of notice to debtor of assignment, 52 A.L.R. 109 .

Foreign attachment or garnishment upon which jurisdiction is dependent resting upon property coming into hands of garnishee, or obligations having their inception, after service of the writ, 53 A.L.R. 1022 .

Garnishment of salaries, wages, or commissions not expressly exempted by statute, 56 A.L.R. 601 .

Debt owing to two or more as subject of garnishment in action against less than all, 57 A.L.R. 844 .

Who is "employee" within debt exemption statute, 58 A.L.R. 777 .

Right of creditor upon dissolution of his own attachment to garnish custodian of attached property, 59 A.L.R. 526 .

Garnishment against executor or administrator by creditor of heir, legatee, distributee, or creditor of estate, 59 A.L.R. 768 .

County as subject to garnishment process, 60 A.L.R. 823 .

Interest of vendee under conditional sales contract as subject to attachment, garnishment, or execution, 61 A.L.R. 781 .

Issuance of successive writs of garnishment or other process to reach property or earnings exempt in whole or in part, 65 A.L.R. 1283 .

Refusal to render judgment or garnishment in proceedings in rem, because of danger to garnishee of double liability in event of refusal of court of another jurisdiction to recognize or give effect to judgment, if rendered, 69 A.L.R. 609 .

Indebtedness to partnership as subject of attachment or garnishment by creditor of individual partner, 71 A.L.R. 77 .

Construction, application, and effect of statute exempting from garnishment debt evidenced by negotiable instrument, 71 A.L.R. 581 .

Interest of mortgagor or pledgor in property in possession of mortgagee or pledgee as subject of garnishment, 83 A.L.R. 1383 .

Liability for conversion of property as the subject of garnishment by creditor of the owner, 91 A.L.R. 1337 .

Property of incompetent or infant under guardianship as subject of execution, attachment, or garnishment, 92 A.L.R. 919 .

Unliquidated claims of damage in tort as subject of garnishment, 93 A.L.R. 1088 .

Withdrawal value of stock in building and loan association as basis of attachment or execution by member or as subject of garnishment by member's creditor, 94 A.L.R. 1017 .

Redemption money in hands of officer as subject to attachment, garnishment, or execution, 94 A.L.R. 1049 .

Indebtedness as subject to garnishment or trustee process after debtor has given his check therefor, 94 A.L.R. 1391 .

Right to garnish amount payable under a contract contemplating a cash transaction, 95 A.L.R. 1497 .

Garnishment by landlord's creditor of tenant's obligation in respect of rent, 100 A.L.R. 307 .

Garnishment of bank deposit as affected by bank's right, or waiver of right, to set off depositor's indebtedness to it against deposit or apply deposit to such indebtedness, 106 A.L.R. 62 ; 110 A.L.R. 1268 .

Garnishment as suit within rule that state may not be sued without its consent, 114 A.L.R. 261 .

Resident or foreign corporation doing business within state as subject to garnishment because of indebtedness to nonresident who in turn is indebted to nonresident principal defendant, 116 A.L.R. 387 .

Debtor's exemption (other than homestead) as applicable in favor of nonresidents or of residents absent or about to remove from the state, 119 A.L.R. 554 .

Judgment in tort action as subject of assignment, attachment, or garnishment pending appeal, 121 A.L.R. 420 .

Issuance and return of execution as necessary condition of garnishment after judgment, 128 A.L.R. 1153 .

What amounts to a contingency within statute or rule permitting garnishment or similar process before an obligation is due or payable, if payment or delivery is not dependent upon a contingency, 134 A.L.R. 853 .

Right of creditors to reach by garnishment or other process, commissions of debtor, as executor, administrator, or trustee, 143 A.L.R. 190 .

Form of judgment against garnishee respecting obligation payable in installments, 7 A.L.R.2d 680.

Judgment debtor's personal injury claims against third person or latter's liability insurer as subject to creditor's bill, 51 A.L.R.2d 595.

Value of room and board furnished to servant as included in total salary or earnings for purpose of statute exempting wages, 51 A.L.R.2d 947.

Sharecropper's share in crop wholly or partly unharvested as subject to garnishment, 82 A.L.R.2d 858.

Garnishment of salary, wages, or commissions where defendant debtor is indebted to garnishee-employer, 93 A.L.R.2d 995.

Funds deposited in court as subject of garnishment, 1 A.L.R.3d 936.

Attachment and garnishment of funds in branch bank or main office of bank having branches, 12 A.L.R.3d 1088.

Funds in hands of his attorney as subject of attachment or garnishment by client's creditor, 35 A.L.R.3d 1094.

Liability of creditor for excessive attachment or garnishment, 56 A.L.R.3d 493.

Garnishment against executor or administrator by creditor of estate, 60 A.L.R.3d 1301.

Special bank deposits as subject of attachment or garnishment to satisfy depositor's general obligations, 8 A.L.R.4th 998.

Garnishment of funds payable under building and construction contract, 16 A.L.R.5th 548.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.

RESEARCH REFERENCES

C.J.S. - 38 C.J.S., Garnishment, § 209 et seq.

ALR. - Who is "employee" within debt exemption statute, 58 A.L.R. 777 .

Wrongful discharge: employer's liability under state law for discharge of employee based on garnishment order against wages, 41 A.L.R.5th 31.

Protection of debtor from acts of discrimination by private entity under § 525(b) of Bankruptcy Code of 1978 (11 USCS § 525(b)), 105 A.L.R. Fed. 555.

Preemption of state-law wrongful discharge claim, not arising from whistleblowing, by § 301(a) of Labor-Management Act of 1947 (29 U.S.C.A. § 185(a)), 184 A.L.R. Fed. 241.

JUDICIAL DECISIONS

Pension funds exempt, not individual pension payments. - Law exempted from garnishment all pension funds for policemen and municipal employees, irrespective of their source or intended beneficiaries, but it is the funds, rather than the individual pension payments, that are exempt from garnishment. Cooper v. City of Atlanta Policemen's Pension Fund, 147 Ga. App. 633 , 249 S.E.2d 684 (1978).

When funds or benefits exempt. - O.C.G.A. § 18-4-22 means that funds or benefits from a pension or retirement program are exempt from the process of garnishment until such funds or benefits are in the hands of the member or beneficiary of the program. Davis v. Davis, 161 Ga. App. 722 , 288 S.E.2d 748 (1982).

Chapter 7 bankruptcy. - Debtor's Individual Retirement Account (IRA) would be excluded from the bankruptcy estate under 11 U.S.C. § 541(c)(2) on the basis of the restriction on transfer by garnishment contained in subsection (a) of O.C.G.A. § 18-4-22 , notwithstanding that the transfer restriction was contained only in the Georgia statute and was not contained within the IRA document itself and notwithstanding that the debtor had access to the IRA funds for personal use upon payment of a 10% penalty tax. Meehan v. Wallace, 102 F.3d 1209 (11th Cir. 1997).

Federal preemption. - Twenty-five percent of the defendant ERISA beneficiary's benefit payment was subject to garnishment by the defendant judgment creditor under a continuing garnishment pursuant to O.C.G.A. § 18-4-22(a) because the ERISA Plan was a Top Hat Plan, which was not subject to the ERISA anti-alienation provision, 29 U.S.C. § 1056. AFLAC Inc. v. Diaz-Verson, F. Supp. 2d (M.D. Ga. May 25, 2012).

Benefits not actually received not subject to garnishment. - Retirement benefits paid into registry of trial court by garnishee were not subject to garnishment because the defendant had never received actual possession of the benefits. Birchfield v. Birchfield, 165 Ga. App. 101 , 299 S.E.2d 409 (1983).

Individual retirement accounts. - Federal law preempts O.C.G.A. § 18-4-22 and mandates a finding that individual retirement accounts possessed by the garnishees are exempt from garnishment by commercial creditors in a nonbankruptcy situation. Citizens Bank v. Shingler, 173 Ga. App. 511 , 326 S.E.2d 861 (1985) (decided prior to 1990 amendment specifically exempting individual retirement account funds or benefits).

Chapter 7 debtor's Roth individual retirement account (IRA) was not excluded from the property of the estate because O.C.G.A. § 18-4-22(a) applied only to an IRA within the meaning of 26 U.S.C. § 408 and Georgia law provided no similar protection for a Roth IRA established under 26 U.S.C. § 408A. Goodman v. Bramlette (In re Bramlette), 333 Bankr. 911 (Bankr. N.D. Ga. 2005).

Annuity. - O.C.G.A. § 44-13-100 specifically addresses what types of annuities and similar contracts are exempt in bankruptcy cases. Therefore, the debtor's attempt to exempt the annuity under O.C.G.A. §§ 18-4-22 and 47-2-332 would have failed even if the annuity met the requirements of those statutes (which appeared not to be the case in any event). In re Sheffield, 507 Bankr. 400 (Bankr. S.D. Ga. 2014).

Cited in Goddard v. Boozer, 160 Ga. App. 303 , 287 S.E.2d 308 (1981).

RESEARCH REFERENCES

ALR. - Who is "employee" within debt exemption statute, 58 A.L.R. 777 .

Debtor's exemption (other than homestead) as applicable in favor of nonresidents or of residents absent or about to remove from the state, 119 A.L.R. 554 .

Employee retirement pension benefits as exempt from garnishment, attachment, levy, execution, or similar proceedings, 93 A.L.R.3d 711.

Enforcement of claim for alimony or support, or for attorneys' fees and costs incurred in connection therewith, against exemptions, 52 A.L.R. 5 th 221.

Individual retirement accounts as exempt property in bankruptcy, 133 A.L.R. Fed. 1.

JUDICIAL DECISIONS

Cited in Blach v. Diaz-Verson, 303 Ga. 63 , 810 S.E.2d 129 (2018).

RESEARCH REFERENCES

C.J.S. - 38 C.J.S., Garnishment, §§ 173 et seq., 185 et seq.

ALR. - Who may serve writ, summons, or notice of garnishment, 75 A.L.R.2d 1433.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1884-85, p. 95; former Civil Code 1895, § 4710; former Civil Code 1910, § 5270; former Code 1933, § 46-105; former Code 1933, § 46-106, as it read prior to revision by Ga. L. 1976, p. 1608, § 1; former Code 1933, § 46-304 as it read after passage of Ga. L. 1976, p. 1608, § 1; and former O.C.G.A. §§ 18-4-23 and 18-4-64 are included in the annotations for this Code section.

Construction. - Because garnishment was a special statutory proceeding in derogation of common law, former O.C.G.A. § 18-4-23 had to be strictly construed. ARC Sec., Inc. v. Massey Bus. College, 221 Ga. App. 489 , 471 S.E.2d 569 (1996) (decided under former O.C.G.A. § 18-4-23 ).

Relationship with other laws. - After a consumer appealed a district court's dismissal of the consumer's improper venue Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., complaint, the FDCPA venue provision applied only to legal actions against any consumer, and Georgia garnishment proceedings were not legal actions against any consumer. Ray v. McCullough Payne & Haan, LLC, 838 F.3d 1107 (11th Cir. 2016).

Former Civil Code 1895, § 4710 was not restricted to service on domestic corporations. Cathcart v. Cincinnati, Hamilton & Dayton Ry. Co., 108 Ga. 253 , 33 S.E. 875 (1899) (decided under former Civil Code 1895, § 4710).

Corporation not transacting business in this state is not subject to garnishment, though the corporation's agent resides herein. Schmidlapp & Co. v. La Confiance Ins. Co., 71 Ga. 246 (1883) (decided under former Civil Code 1895, § 4710).

Service upon agent in cases of foreign debt or garnishee. - Garnishment can lawfully be served upon a foreign corporation by making personal service upon an authorized agent of the company in this state even though the principal debtor and the garnishee may both be nonresidents, or that the debt garnished was contracted and is payable elsewhere (i.e., in another state). United Merchants & Mfrs., Inc. v. Citizens & S. Nat'l Bank, 166 Ga. App. 468 , 304 S.E.2d 552 (1983) (decided under former O.C.G.A. § 18-4-23 ).

Process served on corporation pending its application for charter will not confer jurisdiction. Bartram, Hendrix & Co. v. Collins Mfg. Co., 69 Ga. 751 (1882) (decided under former law).

Construction of "agent." - Word "agent" in former Civil Code 1910, § 5270 should not be construed in a narrow, technical sense, but should be given a broad, common-sense construction. Central of Ga. Ry. v. Ellis, 17 Ga. App. 536 , 87 S.E. 815 (1916) (decided under former Civil Code 1910, § 5270).

Service on agent in charge. - When agent was served, return is amendable to show that agent was in charge. Southern Express Co. v. National Bank, 4 Ga. App. 399 , 61 S.E. 857 (1908) (decided under former Civil Code 1895, § 4710).

Service upon agent who is defendant in main suit. - Service of garnishment upon corporation doing business in this state may be perfected by service upon its agent in charge of its business in this state, even though agent is defendant in main suit. Jewel Tea Co. v. Patillo, 50 Ga. App. 620 , 178 S.E. 925 (1935) (decided under former Code 1933, § 46-106).

Delegation of employee as agent. - If principal officer in charge of business of corporation is authorized to designate another employee because the corporation prefers that the corporation's principal officer not receive service, then that employee can be designated as agent in charge of office of corporation for purpose of receiving such service. Cleveland Lumber Co. v. Delta Equities, Inc., 232 Ga. 883 , 209 S.E.2d 212 (1974) (decided under former Code 1933, § 46-106).

Entry of service must show service on corporation or the corporation's alter ego. North Ga. Banking Co. v. Fancher, 23 Ga. App. 683 , 99 S.E. 229 (1919) (decided under former Civil Code 1910, § 5270).

President of chartered bank is the bank's alter ego. Third Nat'l Bank v. McCullough Bros., 108 Ga. 249 , 33 S.E. 848 (1899) (decided under former Civil Code 1895, § 4710); Twilley & Hodges v. Middle Ga. Bank, 28 Ga. App. 416 , 111 S.E. 694 (1922) (decided under former Civil Code 1910, § 5270).

When person other than president is served, return must show it was agent in charge. Twilley & Hodges v. Middle Ga. Bank, 28 Ga. App. 416 , 111 S.E. 694 (1922) (decided under former Civil Code 1910, § 5270).

Service on others. - Entry showing service on cashier must show that cashier was in charge. North Ga. Banking Co. v. Fancher, 23 Ga. App. 683 , 99 S.E. 229 (1919) (decided under former Civil Code 1910, § 5270).

Return merely designating person served as "supt." is insufficient. Hargis v. East Tenn., V. & Ga. Ry., 90 Ga. 42 , 15 S.E. 631 (1892) (decided under former law); Southern Ry. v. Hagan, 103 Ga. 564 , 29 S.E. 760 (1897) (decided under former Civil Code 1895, § 4710).

Service on chief clerk when agent is absent, and that clerk is in charge suffices. Central of Ga. Ry. v. Ellis, 17 Ga. App. 536 , 87 S.E. 815 (1916) (decided under former Civil Code 1910, § 5270).

Personal service upon ticket agent in charge of ticket office of railroad company, and selling tickets and handling passenger business for the railroad and other like companies is sufficient. Seaboard Air-Line Ry. v. Browder, 144 Ga. 322 , 87 S.E. 6 (1915) (decided under former Civil Code 1910, § 5270).

Burden of proof. - When corporation denies that agent served was in charge of office, prima facie presumption in favor of return arises, and burden of proof is on company. Twilley & Hodges v. Middle Ga. Bank, 28 Ga. App. 416 , 111 S.E. 694 (1922) (decided under former Civil Code 1910, § 5270).

Evidence sufficient to challenge service. - Testimony from the president and controller of a corporation that they were the only persons authorized to receive service and that the person served was not a corporate officer, performed only clerical functions, and was paid on an hourly basis, along with similar testimony from the receptionist who was served, was sufficient evidence that service was improper. ARC Sec., Inc. v. Massey Bus. College, 221 Ga. App. 489 , 471 S.E.2d 569 (1996) (decided under former O.C.G.A. § 18-4-23 ).

Garnishment procedure meets constitutional due process requirements. - Constitutional due process requirements are adequately met by judicial supervision and notice to the defendant mandated by the statutory procedure for garnishments. Black v. Black, 245 Ga. 281 , 264 S.E.2d 216 (1980) (decided under former Code 1933, § 46-105).

Garnishment proceeding as complying with procedural due process requirements. - See Antico v. Antico, 241 Ga. 294 , 244 S.E.2d 820 (1978) (decided under former Code 1933, § 46-105).

Written notice containing specified information was sufficient, although unsigned. Mahan v. Ford Motor Co., 146 Ga. App. 291 , 246 S.E.2d 374 (1978) (decided under former Code 1933, § 46-105).

No garnishment allowed upon out-of-state wages of nonresident. - Georgia state court was without power to enforce a Georgia child support judgment through the garnishment of the defendant's wages in another state when defendant was not within Georgia. Nelson v. Nelson, 173 Ga. App. 546 , 327 S.E.2d 529 (1985) (decided under former O.C.G.A. § 18-4-64).

Court refused to dismiss consumer's claim that a debt collection agency's letter to the consumer did not comply with the requirement of former O.C.G.A. § 18-4-64(c) that written notice include a statement that a garnishment against the property and credits had been or would be served on the garnishee; the collection agency, an agency employee, and a law firm failed to address that claim in their Fed. R. Civ. P. 12(b)(6) motion to dismiss. Taylor v. Heath W. Williams, L.L.C., 510 F. Supp. 2d 1206 (N.D. Ga. Feb. 23, 2007) (decided under former O.C.G.A. § 18-4-64).

Dismissal of a garnishment action was proper because the judgment creditor failed to comply with the notice requirement of former O.C.G.A. § 18-4-64(a)(2); the judgment debtor was not served with notice until more than six months after the bank was served. Because there was no compliance with the notice requirements, the burden did not shift to the judgment debtor to raise improper service/notice as a defense. TBF Fin., LLC v. Houston, 298 Ga. App. 657 , 680 S.E.2d 662 (2009) (decided under former O.C.G.A. § 18-4-64).

Substantial compliance with three- day notice period was insufficient. - Court of Appeals erred when the court held that a judgment creditor's notification of a judgment debtor of a garnishment eight business days after service of the garnishee substantially complied with former O.C.G.A. § 18-4-64(a)(7)'s requirement that notice be given within three business days. O.C.G.A. § 1-3-1 did not apply because the statute was unambiguous. Cook v. NC Two, L.P., 289 Ga. 462 , 712 S.E.2d 831 (2011) (decided under former O.C.G.A. § 18-4-64).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Attachment and Garnishment, §§ 344, 353.

C.J.S. - 38 C.J.S., Garnishment, § 201 et seq.

ALR. - Content of notice to nonresident principal essential to garnishment or attachment, 92 A.L.R. 570 .

Effect of judgment in garnishment proceedings as between garnishee and principal defendant, 166 A.L.R. 272 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, certain decisions under former Civil Code 1910, § 5269 are included in the annotations for this Code section.

Additional affidavit to obtain another summons in appropriate cases. - While summons of garnishment may issue from time to time before trial, without giving an additional affidavit, the plaintiff in a garnishment proceeding is not precluded from making, if the plaintiff so desires, an additional affidavit to obtain another summons of garnishment, when the answer of the garnishee to the first summons shows that the garnishee was indebted to the defendant in an amount less that of the plaintiff's claim. Johnson v. Atlanta Furn. Co., 47 Ga. App. 124 , 169 S.E. 767 (1933) ??? (decided under former Civil Code 1910, § 5269).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Attachment and Garnishment, § 342.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, certain decisions under former Civil Code 1910, § 5269, former Code 1933, §§ 46-105 and 46-301, as they read prior to revision of Title 46 by Ga. L. 1976, p. 1608, § 1, and former O.C.G.A. § 18-4-62 are included in the annotations for this Code section.

Relationship with federal law. - After a consumer appealed a district court's dismissal of the consumer's improper venue Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., complaint, the FDCPA venue provision applied only to legal actions against any consumer, and Georgia garnishment proceedings were not legal actions against any consumer. Ray v. McCullough Payne & Haan, LLC, 838 F.3d 1107 (11th Cir. 2016).

Purpose of summons of garnishment. - Summons of garnishment is the process that brings the garnishee into court, and in this respect is like process in an ordinary suit, its purpose being to give notice to the garnishee of the plaintiff's claim upon the defendant's property in the garnishee's possession or upon the garnishee's indebtedness to the defendant. Gowen v. Bell, 113 Ga. App. 324 , 148 S.E.2d 52 (1966) (decided under former Code 1933, § 46-105, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

Substantial compliance with requirements. - Substantial compliance with the requisites of the Code, with respect to issuing and serving of process, will be sufficient, and, when notice is given, no technical or formal objection shall invalidate any process. Gainesville Feed & Poultry Co. v. Waters, 87 Ga. App. 354 , 73 S.E.2d 771 (1952) (decided under former Code 1933, § 46-105, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

Premature answer in garnishment is amendable. - Answer in garnishment prematurely filed exists, after time for proper filing arrives, in an imperfect form, and is therefore amendable as are pleadings generally. Mark Ten Homes Corp. v. First Nat'l Bank, 115 Ga. App. 597 , 155 S.E.2d 455 (1967) (decided under former Code 1933, § 46-301, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

Personal service necessary. - Former Civil Code 1910, § 5269 required that when summons of garnishment is issued, officer shall serve the summons upon person of garnishee, which means that the summons shall be served upon the garnishee personally. Robinson v. T.A. Bryson & Sons, 45 Ga. App. 440 , 165 S.E. 158 (1932) (decided under former Civil Code 1910, § 5269).

Personal service defined. - Personal service means actual delivery of process to the defendant in person, and does not include leaving a copy at the defendant's usual place of abode, or the defendant's home, or at the defendant's office, or by delivery to someone else. Robinson v. T.A. Bryson & Sons, 45 Ga. App. 440 , 165 S.E. 158 (1932) (decided under former Civil Code 1910, § 5269).

Availability of personal service provisions of § 9-11-4(d) . - Provisions of O.C.G.A. § 9-11-4(d) concerning personal service of process are available in a garnishment case. Alpha Transp. Serv., Inc. v. Cartwright, 248 Ga. 701 , 285 S.E.2d 713 (1982) (decided under former O.C.G.A. § 18-4-62).

Former O.C.G.A. § 18-4-62 did not expressly state that personal service provisions of O.C.G.A. § 9-11-4(d) are unavailable, and further, § 9-11-4(j) provides that "service shall be sufficient when made in accordance with the statutes relating particularly to the proceeding or in accordance with this Code section. " Alpha Transp. Serv., Inc. v. Cartwright, 248 Ga. 701 , 285 S.E.2d 713 (1982) (decided under former O.C.G.A. § 18-4-62).

Service on nonresident garnishee's agent and answer by garnishee. - When attachment process is sued out against nonresident and summons of garnishment was served on agent of garnishee, and when garnishee filed answer admitting funds, garnishee cannot legally defend against subsequent action on attachment bond on ground that the garnishee was not personally served as required. Carrington v. Wilharbla Realty Co., 67 Ga. App. 898 , 20 S.E.2d 860 (1942) (decided under former Code 1933, § 46-105, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

Return of service conclusive as to identity of person to whom summons was directed. - When it is not contended that it was irregular or incomplete in any way, return of service is conclusive as to identity of person to whom summons of garnishment was directed. Gainesville Feed & Poultry Co. v. Waters, 87 Ga. App. 354 , 73 S.E.2d 771 (1952) (decided under former Code 1933, § 46-105, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

Amendability of return of service. - Return of service not amendable to show that person named in it was garnishee served. Gibbs v. Rhodes Furn. Co., 58 Ga. App. 352 , 198 S.E. 315 (1938) (decided under former Code 1933, § 46-105, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

Motion to quash filed after time for answering has expired. - When time provided by law for answering summons of garnishment has expired when garnishee files the garnishee's motion to quash, the trial court errs if the court grants the motion. Gowen v. Bell, 113 Ga. App. 324 , 148 S.E.2d 52 (1966) (decided under former Code 1933, § 46-105, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

Garnishment by judgment creditor against defendant's insurer. - After the parents of a shooting victim obtained judgment against the owner of the property on which their son was shot, and the owner filed bankruptcy, the Court of Appeals erred in reversing the trial court and holding that the judgment debtor had no garnishment action against the owner's insurer; the insurer could contest, under former O.C.G.A. § 18-4-62, the assertion that it held property belonging to the owner, namely the benefits to be paid on the owner's behalf under an insurance contract. Ross v. St. Paul Reinsurance Co., Ltd., 279 Ga. 92 , 610 S.E.2d 57 (2005) (decided under former O.C.G.A. § 18-4-62).

When claim for default arises. - Claim arises against the garnishee at the time the garnishee falls into default by failing to file answers in a continuing garnishment proceeding, and is separate and distinct from any claim which may have existed prior to that time. Fazio v. Growth Dev. Corp., 168 Bankr. 1009 (Bankr. N.D. Ga. 1994) (decided under former O.C.G.A. § 18-4-90).

Garnishee failed to amend the defective answer as permitted by law and, pursuant to former O.C.G.A. § 18-4-90, the garnishee was automatically in default. Because the garnishee failed to establish the presence of a nonamendable defect on the face of the record or pleadings, the court abused the court's discretion by granting the motion to set aside the default judgment. Oxmoor Portfolio, LLC v. Flooring & Tile Superstore of Conyers, Inc., 320 Ga. App. 640 , 740 S.E.2d 363 (2013) (decided under former O.C.G.A. § 18-4-90).