Magistrate Court

Magistrate Court

Kevin Johnson – Chief Magistrate Judge
Michal Morrison – Magistrate Judge
Jamie Gibbs – Chief Clerk
Angie Allen – Deputy Clerk
Karen Crider – Deputy Clerk

1 Broad Street Suite 203
Ellijay, Georgia 30540
phone: 706-635-2515
fax: 706-635-7756
email: Magistrate@gilmercounty-ga.gov

ONLINE FILING

PROCEDURES, FEES, & FORMS

LEGAL FORMS & FORM GENERATOR

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Jurisdiction of the Court

Magistrate Court jurisdiction includes:

  • Civil claims of $15,000 or less
  • County ordinance violations
  • Deposit account fraud (bad checks)
  • Dispossessory
  • Distress warrants
  • Garnishments
  • Mediation Center
  • Preliminary hearings
  • Pre-Warrant hearings
  • Search warrants
  • Arrest warrants

Jurisdiction of the Court

The Magistrate Court hears cases of plaintiffs who file against defendants who also are residents of the same county. If you are filing against someone who lives in another county, you will not be able to file in Gilmer County. You will have to seek assistance from the county where the defendant lives.

Authority of the Court

The Magistrate Court is not a court of equity and cannot issue an injunction or order that requires a party to act or “fix” something. The Magistrate Court does have the authority to provide remedies of monetary judgements but does not have the authority to force a party to repair an item or return property.

Refiling or Transferring Cases

If you have already filed in the wrong county, you can request that the case be transferred to the appropriate court. Once the request is received, an order is signed by the Judge to have the case transferred. However, you will have to pay the sheriff entry fee (fee varies county to county) to have the defendant served in the county that the case is being transferred to. You will have to call that county to get the sheriff entry fee that they require.

County Ordinances Violations

Arraignments

Animal Control & Codes Violations Hearings

When you are served with a citation from either county agency, the citation will list your charge(s) as well as a court date.

All Magistrate Court hearings are held at 9am unless it is a special set case or another time is given to you to appear.

Failure to Appear

Note that immediately following the date of the hearing, you will receive a failure to appear citation. The citation reads: “a failure to appear and answer this charge will result in the issuance of a warrant for your arrest.”

Court Process

On your court date, when your case is called, you will have an opportunity to plead guilty or not guilty. If you plead guilty, a fine will likely be imposed. The fine is due on the morning of court. If you cannot pay the fine(s) on the court date, you will be placed on probation, which can be up to 60 days per count, until the fine(s) are paid in full, or until the probation requirements are met and completed.

Compliance Orders

In some incidents, the Judge may issue an order that requires you to comply with a remedy to prevent further county ordinance violations. For example, requiring a fence enclosure, or other means of animal retention, to ensure that your animals remain on your property. Another example could be a court order to remove litter from property if unsanitary conditions exist. If you have been given such an order, you will be required to appear at a second court date to review your case for compliance.

Bench Trials

If you plead not guilty but want your case to be resolved in the Magistrate Court, you will be given a second court date called a Bench Trial. On this date, further evidence will be taken from the prosecuting witness such as, Animal Control Officers, Code Enforcement Officers, or witnesses that has been subpoenaed. You will also be given the opportunity to present your case through testimony, evidence and any witnesses you may have.

Fines

** 1ST AND 2ND COUNTY ORDINANCE/CODE VIOLATION OFFENSES CAN BE PAID ONLINE. ANY 3RD OFFENSE WITHIN A CALENDAR YEAR, WILL REQUIRE YOU TO APPEARANCE IN COURT.**

Charges

Below is a list of county ordinance violations and the fines. The fines are per count. For example, if you are charged with two counts of any violation, you would need to multiply the fine two times. If there are multiple counts, there will also be multiple fines. Each count carries separate fines.

Payment Date
Some fines may be paid before the court date. You can review your case and check the fine(s) online at www.magistratepay.com. If you pay your fine online, you are pleading guilty.

Bad Check

Prosecution Procedures

The check MUST be in exchange for present consideration, wages, rent past or presently due, state taxes, or child support. The check should have been deposited within thirty (30) days of accepting the check. The thirty (30) days shall begin on the first full day following receipt of the check.

A demand letter must be sent via certified mail and a return receipt must also requested, which is sent to the person/entity who wrote the check. This must then be mailed to the address on the check, or an address given at the time the transaction occurred. The letter must be mailed within 90 days of receipt of the check.

You must have received the check here in Gilmer County to prosecute.
The letter MUST contain of the following details:

  1. Check Number, Bank Amount, Check Date
  2. Allowance for the full 10 days
  3. Total amount including service charge (Service charge shall not exceed $30.00)

A Post-Dated Check can NOT be prosecuted criminally. A check written for a loan repayment or for an installment payment can NOT be Prosecuted criminally.

Should you desire the appropriate steps for collection/prosecution of a three-party check, please contact the Magistrate Office.

The check must be a PAYMENT IN FULL (NOT a PARTIAL payment) and has to have been received here in Gilmer County

Check has to be stamp Non-Sufficient Funds (NSF) or ACCOUNT CLOSED

*STOPPED PAYMENT cannot be prosecuted criminally as it is a CIVIL MATTER

You MUST send a certified letter to the last known address with a return receipt requested.

Letter is unclaimed

If you received the whole letter back, you can come in that day to file a bad check citation.

Green card

If you received just the green card, you must wait 10 days from the date that the person signed for it, because the letter is advising them that a citation will be issued. On the 11th day if there is no response from your letter, you can come to the Magistrate Office that day to file for a bad check citation.

You will need to bring in the following documents to the Magistrate Court:

  1. The check
  2. The green card or the whole letter
  3. A copy of the letter that was sent certified
Pre Warrants Application

Requirements

  • Any citizen may complete an application for an arrest warrant after the event has been reported to the appropriate law enforcement agency. However, the below listed requirements must be met prior to filing:
  • The applicant must be 18 years of age or older or the parent or guardian must file on his/her behalf.
  • The person against whom the warrant is being requested must be 17 years old or older.
  • The alleged crime must have taken place in Gilmer County.
  • The applicant must provide an incident report from the appropriate local law enforcement agency, which will contain statements pertaining to the alleged crime. Applications will not be accepted without a law enforcement incident report.
  • A complete mailing address for the person of whom you are requesting an arrest warrant for is required.
  • The applicant must be sworn in before the Gilmer County Magistrate Court that the facts given on the application are the truth.
    A $20 application fee must be paid.

Due Process Requirements

An essential aspect of this procedure is the duty of the court to ensure that the accused has been given legal due process notice of this hearing. If the court finds that an insufficient address was provided, or the mailed notice was returned as undeliverable, the hearing would be canceled, and the case will be dismissed due to insufficient information on the application. The case may also be continued and placed on hold to allow time for the applicant to provide the court with a correct address. Once this address has been provided to the court, the case may be placed back on the calendar.

Dispossessory

Filing for Eviction

Before any dispossessory action may begin, the landlord MUST make a demand for possession of his/her property. The demand may be VERBAL or WRITTEN. This procedure MUST be perfected prior to the issuance of a dispossessory.

The only LEGAL way a landlord can remove a tenant, or the tenant’s possessions from the rented premises without the tenant’s expressed permission, is by filing a dispossessory.

The most common grounds for a dispossessory is the tenant’s failure to pay rent when it becomes due. When this is the grounds for a dispossessory, the rent must be past due before the dispossessory process can begin.

When grounds for a dispossessory of a tenant-at-will exist, a 60-day notice for the tenant to vacate the premises is required. This notice may be given verbally. However, it is recommended that the notice be given in writing. A tenant at will is defined as any tenant who occupies rental property with the landlord’s consent and makes rental payments without a lease. NOTE: A landlord IS NOT required to give a 60-day notice to a tenant-at-will who had defaulted on their rental payments.

Filing Fee

The filing of a Dispossessory may be done in the Magistrate’s Office. The filing fee is $85.00.

Serving Notices

The Gilmer County Sheriff’s Office is responsible for service on all civil cases, which are handled on a first come first serve basis. The Magistrate’s Office has no input or control over the service of civil papers. The Sheriff’s Office does serve all civil papers in a timely manner.

Types of Service are as follows:

  • Personal Service – The dispossessory is actually placed in the hands of the tenant or a responsible adult at the residence. The dispossessory must be served personally to enable a monetary judgment against the tenant.
  • Tack and Mail Service – is performed when the Sheriff’s Office is unable to locate the tenant at the residence and leaves a copy of the dispossessory notice on the tenant’s door and places a copy in the mail. This type of service does not allow for a monetary judgment against the tenant to be made (unless an answer is filed by the tenant). However, a tack and mail service can restore possession of the property to the Landlord.

Filing Answers

Once a dispossessory has been served, the tenant has seven (7) days to file an answer (response) to the dispossessory. The law allows the tenant to file an answer which, in turn, results in a scheduled hearing in the Magistrate Court. A hearing provides both parties the opportunity to relate their account of the facts to the court. If the tenant chooses not to file an answer, the landlord can request a writ of possession of property. It is the landlord’s responsibility to contact the Sheriff’s Office to schedule a “set out” date. Their contact phone number is 706-515-2652. A “set out” is a procedure for the removal of the tenant’s property.

IT IS THE LANDLORD’S RESPONSIBILITY TO HAVE THE TENANT’S BELONGINGS REMOVED FROM THE RESIDENCE. UNDER NO CIRCUMSTANCES WILL THE SHERIFF’S DEPARTMENT PHYSICALLY REMOVE ANY ITEMS FROM THE RESIDENCE.

Garnishment
  1. A judgment must be obtained, have been made against, the defendant.
  2. Plaintiff provides the court with a certified copy of the judgment obtained outside the jurisdiction of Gilmer County.
  3. Determine if the defendant has assets to satisfy the claim by reviewing the wages/employer or bank account.
  4. If the defendant has employment or a bank account in the jurisdiction of this Magistrate Office, the plaintiff may file a garnishment.
  5. The plaintiff is responsible for sending a copy of the garnishment by certified mail to the defendant. The plaintiff must provide certified mail verification to the court before funds are disbursed to the plaintiff.
  6. All garnishment funds are held in the Magistrate’s Office account and disbursed monthly.
Small Claims

The Magistrate Court is also referred to as small claims court.

Seeking Small Claims

This is filed in attempt to collect debt or property you feel is owed to you. You can file a claim for which you are seeking $15,000 or less. This limit applies to both the claim of the plaintiff and counterclaim of the defendant (if there would be a counterclaim). Interest and court costs do not affect the jurisdictional amount.

Procedure for Filing

  • Determine the county of residence of the defendant.
  • The claim MUST be filed in the county in which the defendant resides.
  • You will need to furnish the defendant’s mailing address as well as a good physical address (if different from the mailing address) in order for your claim to be served.
  • Please also provide any pertaining phone numbers and emails.

Filing Fee

The filing fee in the Gilmer County Magistrate’s Office for a statement of claim is $110.00. The filing fee must be paid in the Magistrate’s Office at the time you file your claim.

Serving Notices

The Gilmer County Sheriff’s Office is responsible for service on all civil cases which are handled on a first come first serve basis. The Magistrate’s Office has no input or control over the service of civil papers. The Sheriff’s Office does serve all civil papers in a timely manner.

Legal counsel may be obtained by all parties involved by retaining the services of an attorney of their choice. However, being represented by an attorney is not mandatory in Magistrate Court.

Mediation Center

Benefits of Court Mediation

Mediation is an opportunity for parties and attorneys to meet privately to discuss the issues of their case. Mediation empowers all parties involved to have some input in the outcome of their case with the mediator drawing up an outline for settlement in the session. If an agreement is reached and signed, that agreement is then binding.

The merits of mediation are the privacy, confidentiality, and the opportunity to discuss needs and interest in the outcome of the case by all parties involved rather than having a judge make the decisions.

Court Process

Mediation is used in most courts in Georgia. There are some cases that are best settled in the mediation atmosphere. Parties are not required to settle in mediation. If the case is not resolved in mediation, it proceeds through the regular court process. Mediators cannot be subpoenaed or testify to any details of a case.

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