The Magistrate Court's Civil Division, also known as Small Claims Court, handles Small Claims, Dispossessory, and Garnishment cases.
Small Claims Court
The Cobb County Magistrate Small Claims Court handles money claims under $15,000.00. A Magistrate judge holds an informal hearing to listen to and decide each case. Any person may file a claim in Magistrate Court without an attorney. You may have an attorney represent you if you choose, at your own expense. The court does not appoint attorneys for civil cases. Either a person or a business may be sued. Below are examples of typical lawsuits filed in the Magistrate Court:
- Mr. Smith bought a TV from a local store. The next week the set would not work. The store refused to give him a new set or his money back.
- Ms. Jones paid a security deposit when she moved into her apartment. Although she complied with the lease and did not damage the apartment, her landlord will not return the security deposit.
- Mr. James was fired from his job. He claims the company owes him one week's pay. The company will not pay him. In each example, a person can file suit and ask for money damages.
To Sue or Not to Sue
The first step is deciding whether to sue. Remember, you must prove that the person or business you are suing owes you something. Do you have proof of the debt such as a receipt, note, bill of sale, warranty or a witness? In deciding to sue, consider whether you have any evidence. In addition, if you sue an individual they must be a resident of Cobb County. If you sue a corporation the business must be in Cobb County or the registered agent for the corporation must be located in Cobb County. Or, if you sue a sole proprietor of a business, the sole proprietor must be a resident of Cobb County. This office cannot advise you on who to sue or if you have a good claim.
How to File
To begin the process of filing a small claims case, you must first fill out a Statement of Claim Form and a Sheriffs Entry of Service Form. On these forms, you will put the name and address of the person or corporation you are suing, state the exact amount of money you are suing for and explain why you are suing. You may represent yourself, act as an agent for your corporation, or you may sue on behalf of a minor should you be the guardian. However, you cannot represent someone else if you are not an attorney. In addition, you must put your name, mailing address, and telephone number on the claim form. This is important because the clerk will use this address to send you notice of the date and time when your case will be heard by the Magistrate.
Your case may be dismissed if the court cannot locate you. In order for the court to pass judgment in your case, you have to sue the correct entity (i.e., person, corporation). The person you sue is called the "defendant." If the defendant owns a business which is not incorporated, and your claim is against the business, you may sue the person and the trade name he or she does business under in the county where the owner resides, regardless of where the business is located (i.e., John Doe d.b.a. John's Grocery). You can usually find out the exact trade name as it is registered through the:
Cobb County Superior Court Clerk's Office
10 E. Park Square, 1st floor
Marietta, GA 30090
You can personally go to the record room and look up this information. If the defendant is a corporation, you must sue the corporation itself, rather than someone who works for the corporation. Remember, you must sue a corporation in the county where it is doing business or where it is incorporated. You may also sue a corporation in the county where the registered agent is located. (The registered agent is the party that should be served for the corporation). To verify if a business is incorporated and to obtain the registered agents name and address for the corporation, contact the corporation's listing office of the Secretary of State (404) 656-2817. This information can also be obtained on the website ecorp.sos.ga.gov.
Where to File
You may personally file online or mail the claim form to the Magistrate Court of Cobb County, located:
Public Safety Building
32 Waddell Street, 3rd Floor
Marietta, GA 30090
Claims against defendants residing outside the State of Georgia are usually filed in the state where the defendant is located. You should consult an attorney regarding these cases.
If you are suing someone you must pay a filing fee and a service fee. Court costs are county specific. The Sheriffs Department must serve the defendant the Complaint and Summons. (Example: sue one Defendant - you pay one filing fee and one service fee; two Defendants - you pay one filing fee and two service fees, etc.)
Filing fees are set forth by the Georgia State Legislative body and are subject to change. Current fees can be found on the Fees and Forms page.
A judgment is a finding by the Court that one party has a legal obligation to pay the other party a specified amount of money. It may not be redeemed with the Clerk of Court for money nor is it a Court order to pay that money by a date certain. However, the judgment does give you certain rights to try to collect that money from the other side using the assistance of the courts.
Writ of Fi.Fa.
A writ of fi.fa. is a document that is issued by the County Clerk’s Office for the purpose of recording a lien on the judgment debtor's property. It is also the legal instrument by which the Sheriff of a County may seize the assets of a judgment debtor.
A writ of fi.fa. may be issued on a default judgment case immediately. If the case was contested, then a writ of fi.fa. may not be issued until 10 days after the date of judgment. A writ of fi.fa. may also be used to perfect a lien upon any motor vehicles that the judgment debtor owns. There is a special process to go through in perfecting that judgment lien.
Appropriate forms are available to you through the Georgia Department of Revenue, Division of Motor Vehicles. You must send a self-addressed envelope, a check for $1.00 for each vehicle and a copy of the fi.fa. To: Department of Revenue, Motor Vehicle Division, Trinity-Washington Bldg., Atlanta, Ga., 30334.
The Superior Court records a writ of fi.fa. for you upon the General Execution Docket, which is maintained by the Clerk of Superior Court. If you know of any other real property or seizable assets the judgment debtor owns in other counties, you should apply to the clerks of such counties to have writ of fi.fa. recorded upon the General Execution Dockets of those counties, as well. When the judgment is paid in full, you as the judgment creditor have the duty to see that the writ of fi.fa. is cancelled on the appropriate General Execution Docket(s). There is an additional fee for this service and that matter is handled through the Clerk of Superior Court in the respective counties wherein the writ of fi.fa. is filed.
A garnishment is a separate legal action that is filed against the garnishee. The garnishee is a person or business entity that either owes funds to the judgment debtor, or is holding funds on behalf of the judgment debtor. A garnishment could be used against a bank, credit union, employer, general contractor, etc. A garnishment is filed in the county where the garnishee is located.
A continuing garnishment is used when the judgment debtor is a wage earner. It lasts for a period of 180 days and the appropriate sums will be deducted from the judgment debtor's wages on a 30-day recurring basis until the entire judgment amount is collected, or until the expiration of 180 days from the date of service, whichever event shall first occur. A continuing garnishment is filed in the County where the garnishee is located.
The purpose of the Post-Judgment Interrogatories is to ascertain what the assets, if any, the judgment debtor has to satisfy this judgment debt. This process can be as much as a five step process which include the following:
- The cost is $10.00 per defendant. A copy is given to the filing party to be sent to the other party by certified mail. The green card must be returned to the Court after the Plaintiff receives it from the post office.
- If the Interrogatories are not answered within 30 days, then the judgment creditor must file an Affidavit and Motion to Require Answers to the Interrogatories and the appropriate notice. This is served upon the judgment debtor by certified mail-return receipt requested.
- If the judgment debtor fails to appear at the hearing, the court may, in appropriate circumstances, issue an Order requiring the judgment debtor to answer the Interrogatories within 10 days. The Sheriff’s Department serves this upon the judgment debtor.
- If there is no response to the Court Order requiring answers to the Interrogatories, then the judgment creditor must file an Affidavit and Motion to Invoke Sanction of Contempt for Defendant's Failure to Answer Interrogatories, plus the appropriate notice. The Sheriff’s Department must personally serve this upon the Defendant. Also, a copy of the previous order is served upon the judgment debtor, as well.
- If the Defendant fails to appear at the hearing, or in the event he does appear and does not have a bona fide reason for not answering the Interrogatories, then the Court may enter an Order for Incarceration. Judgment debtor is then arrested by the Sheriff’s Department and held in the County Jail until the Interrogatories are answered and approved by the Magistrate.
Please note that this is only an overview of the various procedures available to you. You may wish to consult legal counsel if you have difficulties in collecting the judgment lawfully due you.