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Post-Judgment Interrogatories

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1. Why do I need to use Post-Judgment Interrogatories?

If you have received a judgment and do not know what assets the debtor may have, you may file Post-Judgment Interrogatories. These statutory questions help you locate assets.

Many "pro se" litigants, lay persons, have the mistaken belief that "the court" will collect any judgment that may be entered in their behalf. That belief is inaccurate. Courts could not legally fulfill their constitutional duty of impartiality in all proceedings if a court was to act as an agent on behalf of any party, including post judgment collection proceedings.

Post judgment collection is the responsibility of the judgment creditor. MAG 14-01 gives an outline various judicial and non-judicial remedies that a judgment creditor may employ to collect the monies awarded to them in a civil case.

2. What statutes tell how to make post-judgment Interrogatories?

O.C.G.A. §15-10-50. Propounding of interrogatories to judgment debtor; form; contempt; authorized discovery procedures.

• (a) In aid of any judgment or execution issued by any court in this state upon which the unpaid balance does not exceed the jurisdictional amount for civil claims in magistrate court as provided in paragraph (5) of Code Section 15-10-2, the judgment creditor or his successor in interest when that interest appears of record, may, in addition to any other process or remedy provided by law, examine the judgment debtor by propounding the interrogatories specified in this Code section in the manner provided in this Code section.
• (b) If the judgment or execution concerning which interrogatories are being propounded was issued by the magistrate court the judgment creditor may, after the entry of judgment, file the form interrogatories specified in this Code section with the clerk of the same magistrate court, along with costs of $10.00. Interrogatories filed under this subsection shall be served upon the judgment debtor by certified mail or statutory overnight delivery.
• (c) Interrogatories propounded pursuant to a judgment entered in any other court shall be filed as a new civil action and shall be accompanied by the filing and service fees required for civil actions in that magistrate court. Interrogatories propounded under this subsection shall be served upon the judgment debtor in the manner provided for service of process in civil actions in magistrate court. ....
• (e) The court in its discretion may limit the number of times interrogatories may be propounded upon a judgment debtor, may relieve a judgment debtor of the obligation to answer one or more propounded interrogatories, and may for good cause shown enlarge the time for answering any interrogatory. The court may if necessary compel the answering of interrogatories, but the sanction of contempt shall be applied only after notice and an opportunity for hearing and a showing of willful failure to answer or willful failure to answer fully and truthfully.
• (f) An evasive or incomplete answer to an interrogatory shall be treated as a failure to answer.
• (g) Notwithstanding the provisions of Code Section 15-10-42, the judgment creditor or a successor in interest when that interest appears of record may, in addition to any other process or remedy provided by law, utilize the discovery provisions set forth in Code Section 9-11-69. 

O.C.G.A. §9-11-69. Execution; discovery in aid thereof.

Process to enforce a judgment for the payment of money shall be a writ of execution unless the court directs otherwise. In aid of the judgment or execution, the judgment creditor, or his successor in interest when that interest appears of record, may do any or all of the following: 

1. Examine any person, including the judgment debtor by taking depositions or propounding interrogatories.
2. Compel the production of documents or things.
3. Upon a showing of reasonable necessity, obtain permission from a court of competent jurisdiction to enter upon that part of real property belonging to or lawfully occupied by the debtor which is not used as a residence and which property is not bona fide in the lawful possession of another; in the manner provided in this chapter for such discovery measures prior to judgment.

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Abandoned Motor Vehicles

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1. How do I foreclose a lien on an abandoned vehicle?

40-11-5. Lien foreclosure procedure

All liens acquired under Code Section 40-11-4 shall be foreclosed as follows:

1. Any proceeding to foreclose a lien on an abandoned motor vehicle must be instituted within one year from the time the lien is recorded or is asserted by retention;
2. The person desiring to foreclose a lien on an abandoned motor vehicle shall, by certified or registered mail, make a demand upon the owner for the payment of the reasonable fees for removal and storage plus the costs of any advertisement. Such written demand shall include an itemized statement of all charges. No such written demand shall be required if the identity of the owner cannot be ascertained and the notice requirements of subsection (g) of Code Section 40-11-2 have been complied with;
3. (A) If, within ten days of delivery to the appropriate address of the written demand required by paragraph (2) of this Code section, the owner of the abandoned motor vehicle fails to respond to such demand or refuses to pay, or if the owner of the abandoned motor vehicle cannot be ascertained, the person removing or storing the abandoned motor vehicle may foreclose such lien. The person asserting such lien may move to foreclose by making an affidavit to a court of competent jurisdiction showing all facts necessary to constitute such lien and the amount claimed to be due. Such affidavit shall aver that the notice requirements of Code Section 40-11-2 have been complied with, and such affidavit shall also aver that a demand for payment has been made and refused or that the identity of the owner cannot be ascertained. The person foreclosing shall verify the statement by oath or affirmation and shall affix his signature thereto.
   
   (B) Regardless of the court in which the affidavit required by this paragraph is filed, the fee for filing such affidavit shall be $5.00 per motor vehicle upon which a lien is asserted; 
4. (A) Upon such affidavit's being filed, the lien claimant shall give the clerk or judge of the court the address (if known) of the owner, lessor, lessee, security interest holders, and lienholders of the abandoned vehicle. The clerk or judge of the court shall serve notice upon such owner, lessor, lessee, security interest holders, and lienholders of the abandoned motor vehicle of a right to a hearing to determine if reasonable cause exists to believe that a valid debt exists; that such hearing must be petitioned for within ten days after receipt of such notice; and that, if no petition for such hearing is filed within the time allowed, the lien will conclusively be deemed a valid one and foreclosure thereof allowed.
   
   (B) Any notice required by this paragraph shall be by certified mail or, if the owner, lessor, lessee, security interest holder, or lienholder is unknown, by posting such notice at the county courthouse in such place where other public notices are posted; 
5. If a petition for a probable cause hearing is filed within the time allowed, the court shall set such a hearing within ten days of filing of the petition. If, at the hearing, the court determines that reasonable cause exists to believe that a valid debt exists, then the person asserting the lien shall retain possession of the motor vehicle or the court shall obtain possession of the motor vehicle, as ordered by the court. The owner-debtor may obtain possession of the motor vehicle by giving bond and security in the amount determined to be probably due and costs of the action;
6. Within five days of the probable cause hearing, a party defendant must petition the court for a full hearing on the validity of the debt if a further determination of the validity of the debt is desired. If no such petition is filed, the lien for the amount determined reasonably due shall conclusively be deemed a valid one and foreclosure thereof allowed. If such a petition is filed, the court shall set a full hearing thereon within 15 days of the filing of the petition. Upon the filing of such petition by a party defendant, neither the prosecuting lienholder nor the court may sell the motor vehicle, although possession of the motor vehicle may be retained;
7. If, after a full hearing, the court finds that a valid debt exists, then the court shall authorize foreclosure upon and sale of the motor vehicle subject to the lien to satisfy the debt if such debt is not otherwise immediately paid;
8. If the court finds the actions of the person asserting the lien in retaining possession of the motor vehicle were not taken in good faith, then the court, in its discretion, may award damages to the owner, any party which has been deprived of the rightful use of the vehicle, or the lessee due to the deprivation of the use of the motor vehicle;
9. If no petition for a hearing is filed, or if, after a full hearing, the court determines that a valid debt exists, the court shall issue an order authorizing the sale of such motor vehicle. However, the holder of a security interest in or a lien on the vehicle, other than the holder of a lien created by Code Section 40-11-4, shall have the right, in the order of priority of such security interest or lien, to pay the debt and court costs. If the holder of a security interest or lien does so pay the debt and court costs, he shall have the right to possession of the vehicle, and his security interest in or lien on such vehicle shall be increased by the amount so paid. A court order shall be issued to this effect, and in this instance there shall not be a sale of the vehicle. 

2. How do I get my money back from removing or storing a vehicle?

40-11-4. Creation of lien; courts authorized to foreclose lien

• Any person who removes or stores any motor vehicle which is or becomes an abandoned motor vehicle shall have a lien on such vehicle for the reasonable fees connected with such removal or storage plus the cost of any advertisement. Prior to acquiring such lien, the person must have complied with the requirements of Code Section 40-11-2.
• The lien acquired under subsection (a) of this Code section may be foreclosed in any court which is competent to hear civil cases, including, but not limited to, magistrate courts. Liens shall be foreclosed in magistrate courts only when the amount of the lien does not exceed the jurisdictional limits established by law for such courts.

3. How does the purchaser at a foreclosure sale obtain title?

40-11-7. How purchaser at foreclosure sale may obtain certificate of title

The purchaser at a sale as authorized in this article shall receive a certified copy of the court order authorizing such sale. Any such purchaser may obtain a certificate of title to such motor vehicle by filing the required application, paying the required fees, and filing a certified copy of the order of the court with the Department of Revenue. The Department of Revenue shall then issue a certificate of title, which shall be free and clear of all liens and encumbrances.

4. What happens after I sell the vehicle?

40-11-6. Sale of vehicle pursuant to foreclosure

• Upon order of the court, the person holding the lien on the abandoned motor vehicle shall be authorized to sell such motor vehicle at public sale, as defined by Code Section 11-1-201.
• After satisfaction of the lien, the person selling such motor vehicle shall turn the remaining proceeds of such sale, if any, over to the clerk of the court.

5. What happens to the proceeds of the foreclosure sale?

40-11-8. Disposition of proceeds of foreclosure sale

The clerk of the court shall retain the remaining balance of the proceeds of a sale under Code Section 40-11-6, after satisfaction of liens, security interests, and debts, for a period of 12 months; and, if no claim has been filed against such proceeds by the owner of the abandoned motor vehicle or any interested party, then he shall pay such remaining balance as follows: 

1. If the abandoned motor vehicle came into the possession of the person creating the lien other than at the request of a peace officer, the proceeds of the sale shall be divided equally and paid into the general fund of the county in which the sale was made and into the general fund of the municipality, if any, in which the sale was made; 
2. If the abandoned motor vehicle came into the possession of the person creating the lien at the request of a police officer of a municipality, the proceeds of the sale shall be paid into the general fund of the municipality; 
3. If the abandoned motor vehicle came into the possession of the person creating the lien at the request of a county sheriff, deputy sheriff, or county police officer, the proceeds of the sale shall be paid into the general fund of the county in which the sale was made; 
4. If the abandoned motor vehicle came into the possession of the person creating the lien at the request of a member of the Georgia State Patrol or other employee of the State of Georgia, the proceeds of the sale shall be paid into the general fund of the county in which the sale was made.

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Criminal

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1. I am the victim, and I am indigent, will the court appoint an attorney to represent me?

No, under our laws at this stage of the proceedings, only the accused is entitled to court appointed counsel. However, you may hire your own attorney.

If a warrant is issued, then the victim does not need an attorney in a criminal case because the victim will be represented by the State of Georgia. The District Attorney's office represents victims of felony offenses and Solicitor's office represents victims of misdemeanor offenses.

2. Does the accused have any additional rights since this is a criminal case?

Yes, there are unique rights connected with a defendant in a criminal case. The notice of rights is both a notice and an inquiry which is conducted by the judge. The Court will inquire whether the Defendant is aware of the following:

• Right to Counsel – the Defendant's awareness of his or her right to hire counsel or, if the defendant meets the statutory guidelines, for the appointment of one. The Defendant may choose to waive counsel.
• The right to present defense to these charges? Do you know what those defenses are under the law?
• The right to present any mitigating evidence in regard to these charges?
• This Court strongly advises you against proceeding without an attorney?
• If you are indigent, that is you have no funds to hire an attorney and you meet the income guidelines for appointed counsel, that this Court will appoint an attorney to represent you if you wish. This attorney can be appointed before your hearing.
• This Court cannot assist you in the presentation of your case.

When the Defendant chooses to proceed without an attorney, the Court will inquire and advise the defendant of the following:

• If you proceed without an attorney, you will be held to the same legal standards as an attorney in the presentation of your case?
• Your failure to raise or challenge issues before this court will hurt or even foreclose issues to you in a higher court or on appeal?
• How far did you go in school? Do you have any legal training, formal or informal?
• Is your decision to represent yourself made freely and voluntarily?
• Are you representing to this Court that this decision is made knowingly and intelligently by you?

These questions should help you analyze whether you should hire an attorney or apply for appointed counsel. Cases will not be continued because of a failure to timely hire an attorney or a failure to timely apply for appointed counsel.

Additional Rights of Persons Accused of Crimes

The Accused has the right to remain silent and any testimony given by the Accused may be used against him or her. The Accused is under no duty to present any evidence tending to prove innocence and is not required to take the stand and testify. If the Accused elects not to testify, no inference hurtful, harmful, or adverse to the Accused shall be drawn by the magistrate, nor shall such fact be held against the Accused in any way.

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Deposit Account Fraud (Bad Checks)

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1. I have received a bad check. What can I do?

The issuance of a check on an account that is closed or has insufficient funds may constitute a crime for which the maker of the check may be prosecuted. The issuance of a check that is not honored may also give rise to a civil claim for damages. Your option to proceed will depend on the circumstances in your case.

2. Can I pursue criminal prosecution of a bad check?

Whether the issuance of a bad check is a crime will depend on several factors. You should review these factors carefully against the particular facts in your case before applying for a warrant or a citation. The elements of the criminal offense of Deposit Account Fraud (bad check) are contained in O.C.G.A. § 16-9-20.

3. What are the elements of the offense of deposit account fraud?

• Dishonor of the check - the check must be dishonored by the drawee (who the check is made out to) for one of the reasons set forth in the statute.
• Knowledge by the maker of the check that it would not be honored.
• Present consideration - the check must have been given for present consideration.

4. Where should the offense of deposit account fraud be prosecuted?

The proper venue for the prosecution of the offense of deposit account fraud is the county in which the check was presented. This is true regardless of where your home office may be located or where the person who tendered the check resides.

5. What reasons for dishonor of the check will support a criminal prosecution?

The check must be dishonored by the drawee for one of two reasons: 1. No account or account closed. This is based on the status of the account at the time the check was made, drawn, uttered, or delivered, not at the time it was presented to the bank for payment. 2. Lack of funds - the check must have been deposited or presented for payment within 30 days of the date delivered, and the accused has failed to make payment of the check and a service charge within 10 days after receiving written notice that the check has been dishonored. A copy of the notice (PDF) that will satisfy this requirement may be found in the forms section of this website. There are many other reasons why a check may not be paid upon presentation. However, only the reasons set forth in the statute will support a criminal prosecution. If the check has been dishonored for another reason you should review the availability of civil remedies for bad checks.

6. What is meant by present consideration?

The check must have been tendered for either wages or present consideration. The offense of deposit account fraud is analogous to a theft of the item or services received through the fraudulent presentation of worthless paper when immediate payment is expected. Anything that temporarily separates the exchange will negate the concept of present consideration.

Present consideration includes:

• Goods or services tendered for check
• Rent that is presently or past due
• Child support, pursuant to court order or written agreement
• State taxes, whether or not past due
• Simultaneous agreement for the extension of additional credit where additional credit is being denied

Present consideration does not include:

• Post-dated check
• Payment on an installment account or on an open account for goods/services previously received
• Request by the defendant to the victim to hold the check

7. What steps should be taken to ensure a bad check can be collected?

Be sure employees have followed all items on this checklist:

1. Keep a permanent record of home address of the clerk who actually received the check. This person will be a critical witness who must identify the person who made the check if the case goes to trial.
2. Deposit all checks within 30 days of receipt.
3. Within 90 days of receipt of check, mail certified demand letter to the address given by the maker of the check. Give the maker of the check at least 10 days and 3 days for mailing before prosecuting criminally. 
4. Try to telephone the accused and keep a record of your efforts.
5. Make sure the check is actually one for present consideration.
6. Unusual situations such as: post-dating, stop payment, agreement to hold check, forgery, often prevents the collection from proceeding under criminal prosecution. You may wish to seek legal counsel for further information.
7. If management has received partial payment, proceed to civil remedy only.
8. Make photocopies of check (front and back), the 10 day demand letter, the certified mail notice, and/or the envelope mailed to the maker of the check if returned unclaimed.
9. Proceed criminally for all checks that meet checklist in the county where the check was passed.
10. Proceed civilly (in Magistrate Court if the amount is $15,000.00 or less) against all other checks in the county where the defendant lives.
11. Refer all persons to the Magistrate Court who want to payoff bad check charges after criminal prosecution begins.
12. Be prepared to pay a filing fee. Please see the list of filing fees for the fee for this service.

8. What information should I bring to court to start prosecution?

Bring with you the original check and a copy of the check (front and back), a copy of the ten-day letter, the certified mail receipt or returned letter if unclaimed, and the filing fee.

9. Are there forms that I must fill out?

Depending on the particular check, you will be asked to fill out an application for either an arrest warrant or a citation. These forms are available on this website under forms and in the Magistrate Court Clerk's office.

10. What is a bad check citation and in what situation is it issued?

When a citation is issued, the accused maker of the check will be notified that prosecution has commenced. The accused can dispose of the case by paying the check, service charge, warrant application fee and a fine. The accused can also plead not guilty and request a trial of the case. If the accused does not dispose of the case or appear in court by the date specified on the citation, an arrest warrant may be issued. Only misdemeanor cases may be prosecuted by citation.

11. What is a bad check arrest warrant and in what situation is it issued?

A bad check arrest warrant is an order of the court directing any duly authorized law enforcement official to arrest the person named in the warrant for the offense. The accused will be arrested and, in most instances, allowed to post bond to secure their appearance at trial. All felony bad checks are prosecuted by warrant. A felony bad check warrant is when a check is in the amount in excess of $500.00, or where the check is drawn on an out of state bank, regardless of the amount of the check. Also, warrants are issued in the following situations: the accused has failed to respond to a citation or the accused could not be located so that a citation could be served.

12. Where are deposit account fraud cases tried?

Cases prosecuted by citation are tried in the Magistrate Court, unless the accused demands a jury trial. In that event, the case is transferred to the State Court for trial. Cases prosecuted by warrant are tried in the State Court if the offense is a misdemeanor or in the Superior Court if the offense is a felony.

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Dispossessory

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1. Can I evict the tenant or the tenant's property from my rental property?

No. A landlord may legally remove a tenant and the tenant's property from rented premises only under the dispossessory procedure. If a landlord uses self-help to evict a tenant without a dispossessory warrant, it is a tort for which the tenant may recover damages in a civil action, and a landlord who cuts off utilities may be subject to misdemeanor prosecution under OCGA 44-7-14.1.

2. Can I file a late answer?

While you may file a late answer, it will not prevent a Landlord from contacting the Magistrate Court`s office about presenting the writ of possession to a judge for signature.

3. How is the Landlord-Tenant (Dispossessory) Affidavit served on the tenant?

The Landlord is responsible for service of the dispossessory action on the tenant. Personal service on the tenant of the dispossessory warrant must be attempted and may be made by the Sheriff or Marshall by payment of the service fee with the warrant filing fee to the Clerk of Court. The Clerk will forward the service fee to the Sheriff/Marshall. In the event the Sheriff or Marshall cannot serve the tenant personally, service may be sui juris, that is, to any person residing at the premises of suitable age and discretion. If the Sheriff is unable to obtain personal or sui juris service of the dispossessory warrant, it may be delivered by tack and mail, that is, posted on the door of the premises. On the same day of posting, the sheriff must mail a copy of the dispossessory warrant to the tenant at the tenant's last known address.

4. I have been served with a Landlord-Tenant (Dispossessory) Affidavit. What can I do?

Upon service of a dispossessory warrant, the tenant has seven (7) days to file an answer with the Magistrate Court. Failure to file an answer within seven days of service of the dispossessory warrant may result in a writ of possession being issued against the tenant.

5. If the tenant fails to file an answer within 7 days from service of a Landlord-Tenant (Dispossessory) Affidavit, what can I do?

If the tenant fails to file an answer with the Magistrate Court within seven (7) days from service of a dispossessory warrant, the landlord may request a writ of possession by paying the sheriff's service fee to the Magistrate Court. After the Judge has signed the writ of possession, the landlord may contact the Sheriff's Office to set up a time for the eviction. Please see the list of filing fees for the fee for this service.

6. My landlord failed to make repairs. Now what?

Courts in Georgia have held that when a landlord fails to respond to repair requests after a reasonable time, tenants can hire a competent repair person to perform the needed repairs. The cost must be reasonable, and the tenant may deduct the cost from the rent. It's a good idea to put your request in writing, keep all receipts and invoices, hire licensed workers if possible, and perform only needed repairs, not upgrades.

After the Tenant has given reasonable notice of a defect to the Landlord, and the Landlord has failed to make the repair within a reasonable time, the Tenant may make reasonable repairs and deduct the reasonable cost from the rent, or the Tenant may file a lawsuit against the Landlord for damages arising from the failure to repair.

7. My landlord owes me money. How can I get it back?

Along with your Answer, you can file what is called a Counterclaim, which is, essentially, a Statement of Claim filed by the Tenant against the Landlord. If your Counterclaim exceeds $15,000, the jurisdictional limits of the Magistrate Court, the case will be transferred to a court that does have jurisdiction. Usually the entire case will be transferred. However, there may be some cases where the Landlord`s claim will remain in Magistrate Court and the Tenant`s counterclaim will be transferred separately.

8. The last day to file my answer falls on a weekend or a legal holiday and the Magistrate Court is closed. What can I do?

When the last day to file an answer falls on a weekend or a legal holiday, the answer may be filed with the Magistrate Court by close of  the next business day.

9. The tenant has filed an answer with the Magistrate Court. When will the hearing be held?

When an answer is filed, a court date is given for the following week. The tenant will be given a court date at the time the answer is filed. The notice of the court date, along with a copy of the tenant's answer, will be mailed to the landlord by regular mail.

10. What are the requirements for a landlord filing a Landlord-Tenant (Dispossessory) Affidavit?

A landlord/tenant relationship must exist between the parties. The tenant must be either a tenant holding over, a tenant at will, a tenant at sufferance, or having failed to pay rent as it becomes due. The landlord must have made a demand for possession of the premises prior to commencement of the proceedings. Please see the list of filing fees for the fee for this service.

11. What do I bring to court?

You should bring with you all persons who have direct knowledge of the facts related to your case and any documents, photographs, repair bills, receipts, or other physical evidence which you feel would help the Court better understand your case.

12. Where do I file a Landlord-Tenant (Dispossessory) Affidavit in order to evict my tenants?

A dispossessory warrant should be filed in the county where the rental property is located.

13. Will an appeal stop an eviction from going forward?

An appeal will only stop an eviction if there is an order to require the payment of rental or market value of the property into the registry and the defendant complies with that order every month as long as the appeal is pending.

14. Will the Judgment appear on my credit report?

It is possible. The Court does not report information to credit reporting agencies, but the Court's records are public records and the agencies have access to the records.

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Garnishments

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1. Are there different types of garnishment?

• Continuing Garnishments are filed against a person's place of employment and last for approximately seven months, or until the garnishment is satisfied, whichever comes first. 25% of the defendant's 'take -home' pay will be attached each month. If the debt is not paid within the seven months, a new garnishment will have to be filed to collect the remaining balance.
• Regular Garnishments are typically filed against a bank, credit union, brokerage firm, employer, or business which owes judgment creditor money. This filing will capture the amount you file for or whatever might be in the account or owed at that time. In the case of commissions, it will capture 100% of commissions for one month, or whatever you file for. If the judgment creditor is self-employed, a regular garnishment will seize all sums up the amount of the garnishment that the garnishee owes the self-employed judgment creditor at that time.
• Support Garnishments are used to capture the periodic support for a family member - Alimony in the case of the awarded spouse, and Child Support in the case of children. The defendant must be behind at least one month's court ordered support before a Garnishment can be filed. 50% of the defendant's 'take-home' pay will be attached. A Support Garnishment has no termination date; it lasts until a zero balance is reached, indicating that the defendant has become current on payments.
• Tax Revenue Garnishments are filed by the Georgia Department of Revenue for unpaid State Income Taxes and are not available to the public.

2. How do I file a garnishment?

Garnishment proceedings may be filed immediately if the judgment issued is a default judgment. Otherwise, a period of ten (10) days must lapse before a garnishment can be filed. The correct forms for filing a garnishment can be obtained from this website or from the Magistrate Court Clerk's Office.

3. How do I prove service?

No money can be paid out until a Certificate of Service identifying the proper method of service on the garnishee and notice to the defendant, along with all other required documents, is filed with the Court. Plaintiff's obligation to provide notice of the garnishment to the defendant is governed by O.C.G.A. 18-4-8. Please read this code section if you are unfamiliar with garnishment law regarding notice to the defendant. Failure to obtain proper and timely service on both the garnishee and the defendant shall result in dismissal of the garnishment action.

View a Certificate of Service Form (PDF).

4. How long does a garnishment last?

A continuing (wage) garnishment is good for 195 days from the date of service by the Sheriff's Department.

A regular (bank) garnishment is good for 45 days from the date of service by the Sheriff's Department.

5. How long does the garnishee have to file an answer with the court?

A garnishee must file an answer with the court no later than 45 days, but not sooner than 30 days from the date of service by the Sheriff's Department.

6. What amount can I file a garnishment for?

The principal amount on the judgment may not exceed $15,000.00 when filing a garnishment with the Magistrate Court.

7. What are the service (notice) requirements?

Service on the Garnishee. The plaintiff must have the garnishee served personally or pursuant to a legally authorized service substitute (usually requiring permission from the Court) with a copy of: 

(1) the Affidavit of Garnishment;

(2) the Summons of Garnishment; and

(3) the Notice to Defendant of Right against Garnishment of Money, Including Wages and Other Property and Defendant's Claim Form. See O.C.G.A. 18-4-8(a) and 9-11-4.

Service on the Defendant. No later than three (3) business days after service of the garnishment on the garnishee, the plaintiff must also serve the defendant with: 

(1) the Affidavit of Garnishment;

(2) the Summons of Garnishment; and

(3) the Notice to Defendant of Right against Garnishment of Money, Including Wages and Other Property and Defendant's Claim Form.

For all service after May 12, 2016, service on the defendant may only be made through the following methods:

a. By regular mail to the defendant at the defendant's last known address and by registered or certified or statutory overnight delivery, return receipt requested.  See O.C.G.A. 18-4-8(b)(1)(A).; or

b. Personal service by the sheriff or other approved special process service.

If the plaintiff can establish by affidavit that the defendant resides out of this state, has departed this state, cannot, after due diligence, be found within this state, or has concealed his or her place of residence from the plaintiff, the plaintiff may be permitted to serve the defendant by regular mail at the address at which the defendant was served as shown on the return of service in the action resulting in the judgment. A certificate of such mailing shall be filed with the clerk of the court in which the garnishment is pending by the person mailing such notice.

If the plaintiff fails to serve the defendant within this statutory time period, no funds will be distributed, no default judgment will be entered against Garnishee, and the garnishment is subject to dismissal.

Read the full text of the law regarding service and required notice.

8. What forms do I need?

A copy of the judgment must accompany the garnishment upon filing if the judgment was obtained from another court. You also need: 

• Continuing (Wage) Garnishment
• Affidavit and Summons of Continuing Garnishment
• Answer of Continuing Garnishment
• Sheriff's Entry of Service form for the garnishee
• Sheriff's Entry of Service form for the defendant
• Regular (Bank) Garnishment:
• Affidavit and Summons of Garnishment
• Answer of Garnishment
• Sheriff's Entry of Service form for the garnishee
• Sheriff's Entry of Service form for the defendant

9. What happens if the garnishee fails to file an answer?

If the garnishee fails to file an answer by the 45th day from the date of service, they still have an additional 15 days in which they can file an answer but they are required to pay court cost in order to open the default. If the garnishee fails to file an answer by the 60th day from the date of service, the plaintiff can request a judgment against the garnishee. The plaintiff can then take steps to collect the judgment from the garnishee.

Note that the Court will not enter a default judgment against a garnishee unless the Plaintiff has filed proof of service on Defendant and a proposed judgment.

10. What is a traverse?

The plaintiff's traverse states that the garnishee's answer is untrue or legally insufficient. The plaintiff may file a traverse no later than 15 days after the answer of the garnishee is filed with the court. The defendant's traverse states that the affidavit of garnishment is untrue or legally insufficient. The defendant may file a traverse at any time before a judgment is entered on the garnishee's answer. The garnishee must withhold funds until the judge rules on the traverse. The funds are held in the registry of the court until the traverse is ruled on. A traverse must be scheduled for a hearing within 10 days of the filing of the traverse.

11. What properties are subject to a garnishment?

See O.C.G.A 18-4-20. Property subject to garnishment generally; claim amount and defendant's social security number on summons; information to be contained on summons of garnishment upon financial institution. Statute text:

(a) As used in this Code section, the term: 

"Disposable earnings" means that part of the earnings of an individual remaining after the deduction from those earnings of the amounts required by law to be withheld.

"Earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.

(b) All debts owed by the garnishee to the defendant at the time of service of the summons of garnishment upon the garnishee and all debts accruing from the garnishee to the defendant from the date of service to the date of the garnishee's answer shall be subject to process of garnishment; and no payment made by the garnishee to the defendant or to his order, or by any arrangement between the defendant and the garnishee, after the date of the service of the summons of garnishment upon the garnishee, shall defeat the lien of such garnishment.

(c) All property, money, or effects of the defendant in the possession or control of the garnishee at the time of service of the summons of garnishment upon the garnishee or coming into the possession or control of the garnishee at any time from the date of service of the summons of garnishment upon the garnishee to the date of the garnishee's answer shall be subject to process of garnishment except, in the case of collateral securities in the hands of a creditor, such securities shall not be subject to garnishment so long as there is an amount owed on the debt for which the securities were given as collateral.

(d) Notwithstanding subsection (a) of this Code section, the maximum part of the aggregate disposable earnings of an individual for any work week which is subject to garnishment may not exceed the lesser of:

 

(A) Twenty-five percent of his disposable earnings for that week; or

(B) The amount by which his disposable earnings for that week exceed 30 times the federal minimum hourly wage prescribed by Section 6(a)(1) of the Fair Labor Standards Act of 1938, U.S.C. Title 29, Section 206(a)(1), in effect at the time the earnings are payable.

In case of earnings for a period other than a week, a multiple of the federal minimum hourly wage equivalent in effect to that set forth in subparagraph (B) of paragraph (1) of this subsection shall be used.

(e) The limitation on garnishment set forth in subsection (d) of this Code section shall apply although the garnishee may receive a summons of garnishment in more than one garnishment case naming the same defendant unless the garnishee has received a summons of garnishment based on a judgment for alimony or the support of a dependent, in which case the limitation on garnishment set forth in subsection (f) of this Code section shall apply although the garnishee may receive a summons of garnishment in more than one garnishment case naming the same defendant. No garnishee shall withhold from the disposable earnings of the defendant any sum greater than the amount prescribed by subsection (d) or subsection (f) of this Code section, as applicable, regardless of the number of summonses served upon the garnishee.

(f) The exemption provided by subsection (d) of this Code section shall not apply if the judgment upon which the garnishment is based is a judgment for alimony or for the support of any dependent of the defendant, provided the summons of garnishment shall contain a notice to the garnishee that the garnishment is based on the judgment for alimony or the support of a dependent. In any case in which the garnishment is based on the judgment, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment shall be 50 percent of the individual's disposable earnings for that week.

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Small Claims

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1. Are there any types of cases that cannot be filed in Magistrate Court?

Certain types of cases cannot be filed in Magistrate Court, regardless of the amount in recovery being sought, such as, divorce and family matters and any case in which the Court would be called upon to decide who is the legal owner of real estate. Furthermore, the Magistrate Court cannot issue an injunction, which is an order directing a party to take some action such as repairing or returning property.

2. Can I electronically file my case in the Magistrate Court?

The Magistrate Court of Fulton County is also referred to as small claims court. You can electronically file a claim when you are seeking $15,000.00 or less. If your claim exceeds $15,000.00 principal, the Magistrate Court does not have jurisdiction (the legal authority) to hear your case, and it must be filed in another court; such as, State Court or Superior Court. This limit applies to both the claim of the Plaintiff and any counterclaim of the Defendant. Interest and court costs do not affect the jurisdictional amount.

3. Can the defendant file a late answer?

On the thirty-first day after service on the defendant, the case goes into default. However, the defendant has additional fifteen (15) days to open the default by filing a late answer and paying all court costs along with the answer. No Answer may be filed beyond the forty-fifth day following service.

4. How do I electronically file my case?

To start the process of electronic filing a small claims case, you must first fill out a Statement of Claim Form. On this form, you will enter 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. Remember that 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.)

5. How does one appeal a judgment?

If either party is dissatisfied with the judgment, that party may appeal (request a review of the judgment by a higher court). Either the state court or the superior court in the county will hear the appeal, and either party may request a jury trial. Appeals must be made within 30 days from the judge's decision. The court that hears the appeal will charge a filing fee.

6. How does one collect the award?

In many cases collecting the court award is more difficult than proving the case in court. A judgment granting the plaintiff an award gives the plaintiff the right to collect the money damages from the defendant, but the plaintiff is responsible for actually collecting the award. The court cannot, and will not, collect awards for any party.

If the defendant is unable to make full payment immediately, the plaintiff may ask the court at the hearing to order a payment plan. The plaintiff must pay the clerical and accounting costs of such payment plan, which costs are not to exceed 10 percent of each payment made. If the defendant is unwilling to pay, the plaintiff may: 

• Place a lien on the defendant's property, giving the plaintiff the right to sell the defendant's property to collect the money award. The clerk of the court, when asked by the plaintiff, can place a lien on the defendant's property. A small fee is charged to place a lien.
• Garnish the employer or bank account of the defendant in order to seize the defendant's wages or bank deposits. The garnishment process allows the plaintiff to collect installment payments on the debt the defendant owes. The plaintiff must file a separate garnishment action and pay a filing fee.
  
  If you do not know the name of the defendant's bank or the location of other assets, you can file a post-judgment interrogatory. Mail the form, which can be obtained from the clerk of the magistrate court, to the defendant, who must respond under oath within 30 days. Note that the defendant may close the bank account when advised of the pending garnishment, and then you would need to obtain information about any new account.
• Hire a collection agency to recover the money damages owed. These services can be costly and are usually based on a percentage of the money collected from the defendant.

7. How does one prepare for the hearing?

Before the hearing date, both parties should: 

• Collect all documents that would help to prove their case. Make extra copies for the judge and the other party.
• Contact any witnesses who have agreed to testify and inform them of the hearing date.
• Subpoena documents or summon witnesses to appear in court, if needed. A subpoena is a command to appear before the judge in order to give testimony or produce evidence. A subpoena can be obtained from the clerk of the magistrate court.

8. How does the defendant know that he or she is being sued?

The Marshal, the Sheriff or any certified process server will serve the defendant(s) a copy of the complaint and summons filed with the court. These papers will inform the defendant of the nature of the suit. The defendant has thirty (30) days from the date that he or she was served with the complaint in which to answer the complaint. If the defendant fails to file an answer to the complaint within thirty (30) days, the law provides the defendant an additional fifteen (15) days in which to file an answer by paying all court costs along with the answer (totaling 45 days). If the defendant answers the claim, the Clerk will notify all parties and their attorneys of the trial date by regular U.S. mail.

9. How does the plaintiff know that an answer has been filed?

The defendant must serve a copy of the Answer on the Plaintiff. Either personal delivery or first class U.S. mail may be used to file an Answer and all subsequent pleadings (court filings).

10. Is there a cost to filing an answer or a counterclaim?

No. The plaintiff pays court costs when the case is filed. However, the defendant may be ordered to pay these costs to the plaintiff if the Plaintiff wins his or her case.

11. May I reschedule a court date?

If one of the parties is seeking a continuance less than seven days prior to the court date, then it is the requesting litigant's responsibility to contact the opposing party(s) to seek mutual agreement to the reset; however, if the opposing party(s) objects then the requesting party can submit a written request to the court. In some circumstances, the requesting party may have to appear in open court to request a continuance.

12. The party who sued me actually owes me money. What can I do?

Along with your answer, you can file what is called a counterclaim, which is essentially, a Statement of Claim filed by the defendant against the plaintiff. If your counterclaim exceeds the jurisdictional limits of the Magistrate Court, the case will be transferred to a court that has proper jurisdiction. Usually the entire case will be transferred. However, there may be some cases where the plaintiff's claim will remain in Magistrate Court and the defendant's counterclaim will be transferred separately.

13. What do I bring to court?

You should bring all persons who have direct knowledge of the facts related to your case and any documents, photographs, repair bills, receipts, samples, or other physical evidence which you feel would help the Court better understand your case.

14. What happens after the defendant is served with the Statement of Claim?

The defendant has thirty (30) days from the date of service to file an answer with the Court. The day after the date of service is counted as day one. If the thirtieth (30th) day falls on a day when the Court is closed (a weekend or legal holiday), then the answer is due on the next day the Court is open. What happens after the defendant is served with the Statement of Claim? The defendant has thirty (30) days from the date of service to file an answer with the Court. The day after the date of service is counted as day one. If the thirtieth (30th) day falls on a day when the Court is closed (a weekend or legal holiday), then the answer is due on the next day the Court is open.

15. What happens if I file a case in the wrong court?

If you file a case in Magistrate Court over which the Court does not have jurisdiction or where venue is improper, the case will be transferred to a court that does have jurisdiction. An order will be entered transferring the case to the appropriate court. The order may contain a requirement that you pay a transfer fee within twenty (20) days.

16. What is a default judgment?

If the defendant fails to answer the plaintiff's claims or fails to appear at the hearing, the judge may, upon the plaintiff's request, hear and decide the case without hearing the defendant's side. This is called a default judgment. If the judge grants a default judgment, the plaintiff is entitled to the amount of money damages specified in the suit, plus court costs. If the plaintiff is asking for any non-money damages (such as property), a separate hearing must be held to determine the dollar value of the damages. If the defendant doesn't file an answer to the claim within 30 days, the defendant shall be in default. However, after the expiration of the 30 days, the defendant has 15 days in which to "open the default" by filing an answer and paying court costs.

17. What is the procedure for the hearing?

Certain cases will be referred to mediation prior to a hearing before the judge. This allows the parties to try to settle the case without a hearing. Even if the parties agree to settle out of court, the plaintiff may ask the defendant to pay the court costs. If they cannot agree to settle, the judge will instruct both parties about courtroom procedure and hear the arguments presented by both sides.

The plaintiff and defendant may question or dispute each other's testimony during the hearing. When both parties have completed their presentations, the judge will make a decision. The judge may grant an award of monetary damages to the plaintiff, to the defendant or both.

The plaintiff must appear in court on the day of the hearing, or the judge may:

• Allow the defendant to present testimony and give a judgment, without hearing from the plaintiff.
• Postpone the case until a later date.
• Dismiss the case.

The defendant must appear in court on the day of the hearing, or the judge may grant a default judgment in favor of the plaintiff.

18. Where should I file my case?

You must file your case in the County in which the Defendant (the party you are suing) resides. This requirement is referred to as "venue."  All civil documents in Fulton County Magistrate Court are electronically filed at eFileGA.

Businesses - The type of business determines the proper venue for a business named as the defendant. For a sole proprietorship, the suit should be filed in the county in which the owner of the business resides. For a partnership, the suit should be filed in the county in which at least one of the owners resides. For a corporation, the suit should be filed in the county where the corporation has designated its registered office with the Secretary of State's Office.

Multiple Defendants - For multiple defendants, you can file your case in any County in which venue would be proper for at least one of the defendants, if they are jointly and severally liable.

19. Who may file a claim or have a claim filed against?

The party who electronically files a claim is referred to as the "Plaintiff." The party who is sued is referred to as the "Defendant." A claim must designate the proper Plaintiff(s) and Defendant(s). The determination of the proper party will depend on whether the party is a person or a business and how that business is set up. Failure to name the proper parties may result in an unsatisfactory judgment.

Individuals - If the party is a person, you should designate that party by his or her legal name.

Minors - If the party is a minor (under the age of 18), the proper party depends upon whether the minor is the Plaintiff or the Defendant. A minor may not be a Plaintiff directly, but must be sued through the minor's parent or legal guardian. Example: "John Doe, a minor, by Joe Doe, next best friend." A minor may be sued directly or through the minor's parent or legal guardian.

Businesses - If the party is a business, you must name the proper legal entity. The proper legal entity is determined by how the business is set up. You can contact the Georgia Secretary of State at (404) 656-2817 to get information on a corporation.

Sole Proprietorship - A sole proprietorship is a business owned by one person that is not in the form of a corporation. The person may or may not use a trade name in the operation of the business. In either case, the proper party is the individual owner. Example: "John Doe, individually and d/b/a John's Garage."

Partnership - A partnership is a business owned by two or more persons that is not in the form of a corporation. The proper parties are the actual partners. Example: "John Doe and Jane Doe, individually and d/b/a John's and Jane's Garage."

Corporation - A Corporation is a legal entity separate and distinct from its owners. The proper party is the legal name of the corporation. Example: "John's Garage, Inc." You can obtain information on a corporation from the Georgia Secretary of State by calling (404) 656-2817. You should determine the correct legal name of the corporation, the County in which its registered office is located, and the name and address of the Registered Agent.

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Warrant Application Hearings

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1. What is a warrant application hearing?

When a civilian makes a written application for the issuance of a criminal arrest warrant, a Judge makes a determination as to whether the application should be set down for a hearing. If the Judge determines that the application should be set down for a hearing, this form is filled out stating the crime alleged and setting down the time, date, and location of the hearing. The Judge delivers one copy to the applicant at the time of the application. The Clerk of Court mails one copy to the defendant at the address provided by the applicant.

O.C.G.A. 17-4-40. (b) (1) If application is made for a warrant by a person other than a peace officer or law enforcement officer and the application alleges the commission of an offense against the penal laws, the judge or other officer shall schedule a warrant application hearing as provided in this subsection.

O.C.G.A. 17-4-40. (b) (4) At the warrant application hearing, the rules regarding admission of evidence at a commitment hearing shall apply. The person seeking the warrant shall have the customary rights of presentation of evidence and cross-examination of witnesses. The person whose arrest is sought may cross-examine the person or persons applying for the warrant and any other witnesses testifying in support of the application at the hearing. The person whose arrest is sought may present evidence that probable cause does not exist for his or her arrest. The judge ... shall have the right to limit the presentation of evidence and the cross-examination of witnesses to the issue of probable cause. O.C.G.A. 17-4-40. (b) (5) At the warrant application hearing, a determination shall be made whether or not probable cause exists for the issuance of a warrant for the arrest of the person whose arrest is sought. If the judge finds that probable cause exists, the warrant may issue instanter.

2. How can I apply for a criminal arrest warrant for an individual's arrest?

If you believe this is a case you can handle yourself, you would go to the respective Magistrate Court in the county where the alleged crime occurred. Therefore, if the criminal offense occurred in Fulton County, you would come to the Fulton County Magistrate Court. If the crime occurred in another county, you would go to that Magistrate Court. You are encouraged to contact the law enforcement agency in the location where the offense occurred and obtain a report prior to coming to the Court to file your application for a warrant.

You would fill out a criminal arrest warrant application form. It is available on the website under the Criminal Forms section. There is a fee of $20.00 which must be paid in cash. After the application is made, a hearing will be set and the accused given a notice to appear unless there are circumstances that require immediate action on the part of the Court.

Under Georgia law, O.C.G.A. 17-4-40 (b), Most civilian arrest warrant applications are set for a warrant application hearing. There are rare statutory circumstances when an immediate arrest warrant can be issued, but they are rare. O.C.G.A. 17-4-40. (b) (1) If application is made for a warrant by a person other than a peace officer or law enforcement officer and the application alleges the commission of an offense against the penal laws, the judge or other officer shall schedule a warrant application hearing as provided in this subsection. O.C.G.A. 17-4-40. (b) (4) At the warrant application hearing, the rules regarding admission of evidence at a commitment hearing shall apply. The person seeking the warrant shall have the customary rights of presentation of evidence and cross-examination of witnesses. The person whose arrest is sought may cross-examine the person or persons applying for the warrant and any other witnesses testifying in support of the application at the hearing. The person whose arrest is sought may present evidence that probable cause does not exist for his or her arrest. The judge ... shall have the right to limit the presentation of evidence and the cross-examination of witnesses to the issue of probable cause. O.C.G.A. 17-4-40. (b) (5) At the warrant application hearing , a determination shall be made whether or not probable cause exists for the issuance of a warrant for the arrest of the person whose arrest is sought. If the judge finds that probable cause exists, the warrant may issue instanter.

3. Can I just bring the police report to show what happened?

No, the police report is "hearsay." It is not admissible. The law permits the opposing side to cross examine and confront witnesses. No one has yet to be able to get a piece of paper to answer questions from the witness stand. Both the court and the opposing side have the right under our laws to see and hear the witness in court.

4. Can I just get the witness to sign an affidavit instead of coming to court?

No, the affidavit is "hearsay." It is not admissible. The law permits the opposing side to cross examine and confront witnesses. No one has yet to be able to get an affidavit to answer questions from the witness stand. You can't use a witness's affidavit in place of their live testimony. Both the court and the opposing side have the right under our laws to see and hear the witness in court.

5. Which witnesses should I bring to the warrant application hearing?

You should bring all witnesses you wish to have testified. Generally, you cannot testify yourself about what another witness to the case saw or heard. That is "hearsay." So, bring the proper witnesses to court.

To be on the safe side, you should consider subpoenaing these witnesses. Subpoenas may be obtained in the clerk's office. They must be served by a person over the age of 18 years, not related to the case and an affidavit of service of the subpoena should be filed with the clerk at least 24 hours prior to the hearing date.

6. I am the victim. Can I call the accused to the witness stand to testify in the warrant application hearing?

No, this is a criminal proceeding. Therefore, the accused cannot be compelled to give testimony. While an accused in a criminal case MAY give testimony at a warrant application hearing, that will only occur after the judge has advised the accused of his/her rights connected with the hearing, including the right to remain silent.

7. What rules and rights apply to the warrant applicant and the accused at a warrant application hearing?

At the warrant application hearing, the rules regarding admission of evidence at a commitment hearing shall apply. The person seeking the warrant shall have the customary rights of presentation of evidence and cross-examination of witnesses. The person whose arrest is sought may cross-examine the person or persons applying for the warrant and any other witnesses testifying in support of the application at the hearing. The person whose arrest is sought may present evidence that probable cause does not exist for his or her arrest. The judge or other officer shall have the right to limit the presentation of evidence and the cross-examination of witnesses to the issue of probable cause. At the warrant application hearing, a determination shall be made whether or not probable cause exists for the issuance of a warrant for the arrest of the person whose arrest is sought. If the judge or other officer finds that probable cause exists, the warrant may issue instanter.

8. I am the accused. Can I apply for appointed counsel at this hearing?

Accused persons, who are indigent and are unable to afford counsel, may contact the Fulton County Public Defenders Office at 404-612-4191 further assistance.

9. What if I do not know the correct address for the accused in a warrant application hearing?

You should use your best reasonable efforts to find the correct address. The court is required to give notice to the accused under the provisions of O.C.G.A. 17-4-40(B). The longer it takes to provide the court will a proper address for the accused, the longer the case will take to be heard.

The court, may, in appropriate circumstances refer you to file your criminal case with a local police agency rather than trying to handle it yourself. Law enforcement officers are exempted by state law from the warrant application hearing statute.

However, if no one can find the proper address for the accused, it becomes very difficult for the criminal case to proceed and difficult to find and arrest the accused. Getting a correct and current address for the accused is in your best interests.

10. How can I find the correct address for the accused?

This can take a lot of work, but it is required.

• You should start with any friends or family who may have information.
• What leads do you have?
• Where does the accused work?
• If you have a good work address, this may be adequate.
• Check public records, such as criminal and civil dockets in the clerk's office.
• If you can get a landline telephone number you may be able to cross reference the number to a street address, such as through the Haines Directory.
• There are also reverse phone directory services on the Internet. You enter a telephone number, and if the number is published, an address will be displayed. See for instance, The Reverse Phone Directory.

The law requires that the accused be given due process notice of this proceeding. The duty to provide the correct address information lies with the accuser. If a valid address cannot be provided, the case cannot be set for a hearing until a valid address is provided. If the case is set for a hearing and the mail notice is returned as undeliverable, then the case will be dismissed. The accuser can re-apply once a new valid address has been obtained and submitted to the court.

11. I am the victim. Can I bring my own attorney to the warrant application hearing?

That is entirely up to you. Some persons feel more comfortable hiring their own attorney and others simply cannot afford the cost. The judge conducting the hearing will be conducting a court of inquiry. Therefore, the judge will be asking a majority of questions if you do not hire your own attorney.

If a warrant is issued at this hearing, then a formal charging document will be filed. Thereafter, crime victims are represented by either an attorney with the District Attorney's office for felony offenses or a member of the Solicitor's office for misdemeanor offenses. However, until that charging document is filed, neither the District Attorney's office nor the Solicitor's office is present at a warrant application hearing.

12. What rules and rights apply to the warrant applicant and the accused at a warrant application hearing?

At the warrant application hearing, the rules regarding admission of evidence at a commitment hearing shall apply. The person seeking the warrant shall have the customary rights of presentation of evidence and cross-examination of witnesses. The person whose arrest is sought may cross-examine the person or persons applying for the warrant and any other witnesses testifying in support of the application at the hearing. The person whose arrest is sought may present evidence that probable cause does not exist for his or her arrest. The judge or other officer shall have the right to limit the presentation of evidence and the cross-examination of witnesses to the issue of probable cause. At the warrant application hearing, a determination shall be made whether or not probable cause exists for the issuance of a warrant for the arrest of the person whose arrest is sought. If the judge or other officer finds that probable cause exists, the warrant may issue instanter.