BLACH v. DIAZ-VERSON

Filing 174

Certified Question to the Supreme Court of Georgia. Ordered by US DISTRICT JUDGE CLAY D. LAND on 4/18/2017(tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
HAROLD BLACH,

*

Plaintiff,

*

ROBERT FREY,

*

Third Party Claimant,

*

vs.

*

AFLAC, INC.,

*

Garnishee,

CASE NO. 4:15-MC-5

*

SAL DIAZ-VERSON,

*

Defendant.

*

CERTIFIED QUESTION TO THE SUPREME COURT OF GEORGIA
The Georgia garnishment statute was amended during the 2016
session of the General Assembly, apparently in response to a
ruling by United States District Judge Marvin Shoob who held the
Georgia post-judgment garnishment statute, O.C.G.A. § 18-4-60 et
seq.,
found

unconstitutional
that

the

on

statute

due

process

violated

grounds.

due

process

Judge

Shoob

because

it

(1) failed to require notice of exemptions, (2) failed to inform
debtors of procedures for claiming an exemption, and (3) failed
to provide a prompt procedure for resolving exemption claims.
Strickland v. Alexander (“Strickland I”), 153 F. Supp. 3d 1397,
1416 (N.D. Ga. Sept. 8, 2015).

Shortly after entering this

order, Judge Shoob limited his holding “to garnishment actions
filed

against

debtor’s

a

property

financial
under

a

institution
deposit

holding

agreement

a

judgment

or

account.”

Strickland v. Alexander (“Strickland II”), 154 F. Supp. 3d 1347,
1351 (N.D Ga. Oct. 5, 2015) (emphasis omitted).

Then, the State

of Georgia asked Judge Shoob to alter his previous rulings and
declare that Georgia law provides timely procedures for debtors
to claim exemptions in post-judgment garnishment actions.
refused.

He

Strickland v. Alexander (“Strickland III”), 162 F.

Supp. 3d 1302, 1303 (N.D. Ga. Nov. 10, 2015).
At the next session of the General Assembly, the Georgia
legislature enacted the new garnishment statute “to modernize,
reorganize,

and

provide

constitutional

protections

in

garnishment proceedings,” and “to provide for procedures only
applicable to financial institutions.”
2016

Ga.

Laws

8,

8

(codified

at

Act of April 12, 2016,

O.C.G.A.

§ 18-4-1

et

seq.)

Relevant here, the Georgia legislature substantially shortened
the

garnishment

institution.”

period
The

for

former

garnishments
statute

against

provided

for

a

“financial

a

thirty

forty-five day garnishment period for all garnishments.1

1

to

The new

Prior to May 12, 2016, the garnishment period was based on when the
garnishee filed an answer.
See O.C.G.A. § 18-4-20(b)(2015) (“All
debts owed by the garnishee to the defendant at the time of the
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 the process
of garnishment . . . .”).
The garnishee was required to file an

2

statute

provides

that

garnishments

against

“financial

institutions” shall only last for a five day garnishment period.
O.C.G.A. § 18-4-4(c)(2).
nonfinancial
period.

All other regular garnishments against

institutions

O.C.G.A.

have

a

§ 18-4-4(c)(4).

twenty-nine
The

new

day

garnishment

statute

provides

separate forms for summonses of garnishment against “financial
institutions,”

see

institutions,” see
garnishment periods.
The

shortened

O.C.G.A.

§ 18-4-76,

and

“nonfinancial

O.C.G.A. § 18-4-74, listing the respective
The statute became effective May 12, 2016.
financial

institution

garnishment

period

addresses the issue raised by Judge Shoob’s ruling; it limits
the garnishment period for an account holder’s deposit account
at a financial institution.

Thus, the account holder does not

have to wait thirty to forty-five days to raise an exemption.
But the statute arguably does more than shorten the garnishment
period for financial institution account holders. Although Judge
Shoob’s final order did not apply to the garnishment of employee
wages and earnings, one interpretation of the amended statute is
that the shortened garnishment period applies to any garnishment
action against a financial institution regardless of whether the
garnishment

action

is

filed

to

recover

from

a

financial

answer “not sooner than 30 days and not later than forty-five days
after the service of the summons.” O.C.G.A. § 18-4-61(a)(2015).

3

institution’s

account

holder

or

a

financial

institution’s

employee.
The

issue

garnishment

of

whether

statute

institution

owes

the

apply

to

an

to

employee

amendments
earnings
or

to

the

that

retiree

a

is

Georgia
financial

presented

by

motions to dismiss several garnishments pending in this Court.
Those motions maintain that an insurance company is a financial
institution
shortened

under

the

garnishment

new

garnishment

period

applies

statute
to

the

and

that

the

garnishment

of

earnings that a financial institution/insurance company owes to
its employees and retirees, thus prohibiting the garnishment of
such

funds

for

a

period

beyond

five

days.

Under

this

interpretation of the statute, a judgment creditor who seeks to
garnish the earnings of the employee of a financial institution,
including an insurance company, would be required to file

a

garnishment action against the employer every five days.
The
interpret
statute.

Georgia
these

courts

provisions

have
of

not
the

had
new

an

opportunity

Georgia

to

garnishment

Thus, there is no clear controlling precedent from the

Supreme Court of Georgia on this determinative issue.

Because

the resolution of these pending motions to dismiss involves an
issue of first impression under Georgia law, the Court certifies
the following issue to the Supreme Court of Georgia pursuant to
O.C.G.A. § 15-2-9:

4

Whether
an
insurance
company
is
a
“financial
institution” under the Georgia garnishment statute
when the insurance company is garnished based on
earnings that it owes the defendant as the defendant’s
former employer.
BACKGROUND
Plaintiff

Harold

Blach

filed

this

garnishment

action

against Garnishee AFLAC to collect a $158,343.40 judgment that
Blach obtained against Defendant Sal Diaz-Verson and registered
in this Court.

AFLAC is Diaz-Verson’s former employer.

Based

on this former employment, AFLAC makes bi-monthly payments to
Diaz-Verson.

The Court has held that twenty-five percent of

these payments is subject to garnishment.

See AFLAC, Inc. v.

Diaz-Verson, No. 4:11-CV-81 (CDL), 2012 WL 1903904, *7 (M.D. Ga.
May 25, 2012).

Since December 2015, Blach has regularly filed

summonses of garnishment against AFLAC, and AFLAC has deposited
over

$140,000.00

into

the

Court’s

registry

pursuant

to

the

the

new

garnishments.2
Following

May

12,

2016,

the

effective

date

of

Georgia garnishment statute, separate forms were available for
garnishments

that

involved

financial

institutions

garnishments that involved nonfinancial institutions.
financial

institution

garnishment

period

forms
while

provided
the

2

for

financial

a

The non-

twenty-nine

institution

The Court previously consolidated all of Blach’s
garnishments in this action under case number 4-15-MC-5.
Deny. Mot. to Dismiss and Consolidating Cases, ECF No.
Consolidating Cases, ECF No. 69.

5

and

day

forms

recurring
See Order
46; Order

provided for the shortened five day period.
date

for

the

new

statute,

Blach

institution” garnishment form.

After the effective

used

the

“nonfinancial

AFLAC followed the instructions

on the form and garnished payments to Diaz-Verson for twentynine,

not

five,

days

after

receiving

each

summons

of

garnishment.
Diaz-Verson

filed

supplemental

motions

to

dismiss

all

garnishments filed after May 12, 2016 (ECF Nos. 127, 128, 161, &
165).

Diaz-Verson argues that after this date Blach used the

wrong form for his summonses of garnishment against AFLAC, and
AFLAC garnished payments that it owes Diaz-Verson for a period
that extended beyond the five day garnishment period authorized
under the amendments to the statute.

If Diaz-Verson is correct,

a portion of the funds in the Court’s registry must be released
to Diaz-Verson.

See O.C.G.A. § 18-4-7(d) (“When a plaintiff

uses the incorrect form for a summons of garnishment of any
type, the garnishment shall not be valid . . . .”).
If Diaz-Verson is not entitled to the funds, Third Party
Claimant Robert Frey claims that he holds a judgment against
Diaz-Verson that is superior to Blach’s judgment.

He therefore

maintains that he is entitled to the garnished funds in the
Court’s registry.

But before the Court decides

Blach’s

and

Frey’s dueling motions for disbursement of the funds (ECF Nos.
34, 37, 75, 76, 77, 78, 82, 103, 120, 134, 135, 136, & 154), the

6

Court

must

determine

whether

all

garnishments

filed

after

May 12, 2016 must be dismissed and the funds returned to DiazVerson.3

This

determination

turns

on

an

issue

of

first

impression under Georgia law.
DISCUSSION
Diaz-Verson argues that all of Blach’s garnishments filed
after May 12, 2016 must be dismissed and the funds returned to
him because Blach should have used the “financial institution”
garnishment form, providing only a five day garnishment period.
Diaz-Verson’s argument depends on whether AFLAC is a “financial
institution” under the Georgia statute.
The statute defines “financial institution” as:
[E]very federal or state chartered commercial or
savings bank, including savings and loan associations
and cooperative banks, federal or state chartered
credit
unions,
benefit
associations,
insurance
companies, safe-deposit companies, trust companies,
any money market mutual fund, or other organization
held out to the public as a place of deposit of funds
or medium of savings or collective investment.
O.C.G.A. § 18-4-1(4) (emphasis added).
company.
companies
statute.

And
are

the

statute

financial

clearly

institutions

AFLAC is an insurance
states
for

that

purposes

insurance
of

the

Thus applying the fundamental principle of statutory

3

The Georgia garnishment statute allows the defendant to file a claim
challenging the garnishment “at any time before a judgment is entered
or before money or other property subject to garnishment is
distributed.”
O.C.G.A. § 18-4-15(a).
Thus, the Court rejects any
argument that Diaz-Verson’s supplemental motions to dismiss are not
properly before the Court.

7

construction that the legislature is deemed to have meant what
it

said

in

the
this

unambiguous,

statute
Court

when

that

would

be

language

inclined

is

to

clear

hold

that

and
an

insurance company is a financial institution for purposes of the
Georgia garnishment statute and that the garnishment period for
any garnishment action against it is five days and not twentynine.
Notwithstanding
prudent

and

the

consistent

Court’s
with

inclination,

comity

it

principles

to

finds
give

it
the

Georgia Supreme Court the opportunity to determine what this
Georgia

statute

argument

can

interpretation

actually
be

made

cannot

be

means,
that
what

particularly
this

the

Court’s

General

given
plain

Assembly

that

an

meaning
intended.

AFLAC is not being garnished based on an insurance policy that
Diaz-Verson maintains with AFLAC or based on property it holds
under

some

type

of

deposit

agreement.

Rather,

AFLAC

is

garnished based on “earnings” that it owes Diaz-Verson as his
former employer.
to

“includ[e]

See O.C.G.A. § 18-4-1(2) (defining “earnings”

recurring

retirement plans”).

periodic

payments

from

pensions

or

If AFLAC is indeed a financial institution

for garnishment purposes regardless of the capacity in which it
holds a person’s property, then any garnishments against AFLAC
or

any

other

insurance

company

8

(or

any

other

financial

institution) relating to wages owed to employees are limited by
this five day garnishment period.
The Court observes that nothing in the text of O.C.G.A.
§ 18-4-1(4)
entities

limits

the

constitute

circumstances

“financial

under

which

the

institutions.”

listed

Thus,

in

isolation, the plain text of O.C.G.A. § 18-4-1(4) dictates that
AFLAC is a financial institution regardless of whether it is
garnished based on an insurance policy that the defendant holds
with

AFLAC

current

or

or

former

limitation
exist.
1284

earnings

into

that

AFLAC

employer.

the

And

statutory

owes
the

the

Court

definition

defendant

where

one

a

write

cannot

as

a

does

not

See T-Mobile S., LLC, v. City of Milton, 728 F.3d 1274,

(11th

Cir.

2013)

(“Our

duty

is

to

say

what

statutory

language means, not what it should mean, and not what it would
mean if we had drafted it.”).
Depending on how far the Georgia Supreme Court finds it
appropriate to drift from the text of the statute, evidence of
legislative

intent

can

be

found

to

support

alternative interpretation of the statute.
the

last

catchall

institution
financial

places

phrase
a

institutions

in

the

limitation
that

on

precede

a

One could argue that

definition
the
it.

non-frivolous

of

specific
That

financial
types

final

of

phrase

defines financial institution to include any “other organization
held out to the public as a place of deposit of funds or medium

9

of

savings

legislature

or

collective

intended

for

investment.”

the

Thus,

garnishment

perhaps

amendments

to

the
apply

only to a certain class of financial institutions—those which
hold deposits for their customers.

But that phrase is separated

by the disjunctive “or,” generally suggesting that it may be
intended to stand alone, in which case it would be in addition
to

the

preceding

types

of

financial

functional limitation on them.

institutions

and

not

a

Moreover, the definition does

not limit the nature of the garnishment action to which the
amendments

apply.

If

the

garnishee

is

a

“financial

institution,” nothing in the amendments expressly distinguishes
between garnishments directed at financial institution account
holders and financial institution employees.

Thus, even if one

concluded

restricted

that

a

financial

institution

is

to

an

organization that accepts deposits for its account holders, that
does not necessarily mean that the changes to the garnishment
statute do not apply to garnishment of its employees’ earnings.
Should
definitional

one

wish

text

and

to
look

travel
at

the

even

farther

statute

as

a

from

the

whole,

some

evidence can be found that the legislature perhaps intended for
the amendments only to apply to the garnishment of customer
deposit accounts.
281,

291

statute,

(1988)
the

Cf. K Mart Corp. v. Cartier, Inc., 486 U.S.
(“In

court

ascertaining
must

look

10

to

the
the

plain

meaning

particular

of

the

statutory

language at issue, as well as the language and design of the
statute

as

a

whole.”).

Most

notably,

O.C.G.A.

§

18-4-7

instructs that:
A summons of garnishment on a financial institution,
or
an
attachment
thereto,
shall
state
with
particularity the defendant's account, identification,
or tracking numbers known to the plaintiff used by the
garnishee in the identification or administration of
the defendant's funds or property . . . .
O.C.G.A. § 18-4-7(b)(2).

If the plaintiff does not provide the

financial institution with this information, the entity may be
relieved

from

garnishment.

liability

for

a

failure

to

respond

to

the

See O.C.G.A. § 18-4-23(a).

Requiring the plaintiff to provide a financial institution
with an account number for the defendant’s funds or property
suggests that a “financial institution” is an entity garnished
based on funds or property that it holds for the defendant in
some type of account.

In the present case, AFLAC is not being

garnished because it holds Diaz-Verson’s “funds or property” in
a

deposit

account.

Instead,

it

owes

Diaz-Verson

retirement

earnings that it is obligated to pay on a regular schedule.
Thus, requiring Blach to provide the “account, identification,
or tracking number[]” used to identify such “funds or property”
could be deemed irrelevant.

But the Court must concede that a

requirement by the legislature regarding the identification of
regular

earnings

payments

by

an

11

account

number

would

not

necessarily rise to the level of being absurd.

Cf. Johnson v.

State, 475 S.E.2d 595, 596 (Ga. 1996) (“[T]he literal meaning of
the statute prevails unless such a construction would produce
unreasonable

or

absurd

consequences

not

contemplated

by

the

legislature.”).

Most financial institutions likely have payroll

“accounts”

their

for

employees

just

as

they

have

deposit

“accounts” for their customers.
It is difficult, however, to reconcile the application of
the shortened garnishment period for financial institutions with
those

provisions

in

the

statute

regarding

continuing

garnishments and continuing garnishments for support.

Under the

statute, “a summons of garnishment on a financial institution
shall not be used for a continuing garnishment or continuing
garnishment for support.”
entities

listed

in

O.C.G.A. § 18-4-7(c).

O.C.G.A.

§ 18-4-1(4)

Thus, if the

constitute

financial

institutions under all circumstances, a plaintiff arguably could
not

bring

a

continuing

garnishment

against

the

wages

of

a

defendant employed by a bank, insurance company, or any other
entity

listed

interpretation

in
of

the

O.C.G.A.

§ 18-4-1(4).

amendments

requires

Diaz-Verson’s
one

to

reach

the

difficult to understand conclusion that the Georgia legislature
meant to exempt all such employees from continuing garnishments
when

it

drafted

the

statute.

Such

a

conclusion

also

seems

contrary to other continuing garnishment provisions that allow

12

for a continuing garnishment or a continuing garnishment for
support

“against

defendant.”

any

garnishee

who

is

an

employer

of

the

See O.C.G.A. §§ 18-4-40; 18-4-51 (emphasis added).

But the legislature is authorized to do things that are hard to
understand.

The Court knows of no reason why it could not

exempt financial institutions from continuing wage garnishments
if it chose to do so.

The question is what did it do, not the

wisdom of doing it.
Diaz-Verson notes that AFLAC is his former employer, and
thus, the Court does not have to resolve whether an insurance
company is a “financial institution” when it is garnished based
on wages that it owes a current employee.

But the Court does

have to decide whether an insurance company is a “financial
institution” when it is garnished based on the regular earnings
paid to a former employee who has a contractual right to receive
those payments as a retiree.
the

distinction

compared

to

between

those

owed

The Court does not comprehend how

earnings
to

a

owed

to

current

a

retired

employee

employee

makes

any

difference in the interpretation of the statute.
Judge

Shoob

intended

to

treat

the

constitutional

infirmities of the former Georgia garnishment statute associated
with “garnishment actions filed against a financial institution
holding a judgment debtor’s property under a deposit agreement
or account.”

Strickland II, 154 F. Supp. 3d at 1351 (emphasis

13

partially

omitted).

The

Georgia

General

Assembly,

although

obviously motivated by his ruling, arguably found a cure that
was more expansive than the disease Judge Shoob had diagnosed.
By placing no explicit restriction in the actual language of
O.C.G.A. § 18-4-1(4), the legislature did not clearly limit the
application of the shortened garnishment period to garnishment
actions filed against financial institutions holding a judgment
debtor’s property under a deposit agreement.
whether

the

Supreme

Court

of

Georgia,

The question is

using

interpretative

canons recognized under Georgia law, nevertheless is able to
find such a limitation notwithstanding its opaqueness to the
undersigned.
CONCLUSION
The newly enacted Georgia garnishment statute substantially
shortens the garnishment period for garnishment actions filed
against financial institutions.

Whether the shortened period

applies

actions

to

all

garnishment

against

financial

institutions or only those relating to property held by the
financial institution pursuant to a deposit or account agreement
is an issue of first impression.
has

significant

implications

The resolution of that issue
for

financial

institutions,

employees of financial institutions, and garnishment creditors
of

employees

of

financial

institutions.

Moreover,

its

resolution is determinative of the motions to dismiss pending in

14

this present action.
Court

to

seek

Prudence and comity concerns lead this

guidance

from

the

Georgia

Supreme

Court.

Accordingly, the Court certifies the following question to the
Supreme Court of Georgia:
Whether
an
insurance
company
is
a
“financial
institution” under the Georgia garnishment statute
when the insurance company is garnished based on
earnings that it owes the defendant as the defendant’s
former employer.
The Court does not intend for the phrasing of this question to
limit the Supreme Court of Georgia in its consideration of the
issues in this case.
The Clerk of the Middle District of Georgia is directed to
transmit this Order, which includes the certified question, to
the Supreme Court of Georgia pursuant to Rule 47 of the Rules of
the Supreme Court of Georgia.
IT IS SO ORDERED, this 18th day of April, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

15