Georgia Credit Lawsuits

Information about credit card and other debt collection lawsuits in Georgia

What is a motion for summary judgment in a credit card lawsuit, and what do I do?

Lawsuits can be broken into three main stages where a judgment can be issued against you (or for you).

  1. Initial pleading stage. (This is the Complaint and Answer stage.)
  2. Discovery and summary judgment stage. (Does not apply to Magistrate court cases.)
  3. Trial stage.

Quick Magistrate Court Info

Magistrate courts only have stages 1 and 2. (Initial pleading and trial.). While sometimes parties may agree to do limited discovery (showing each other their evidence), this is not required.

Most importantly, summary judgment is not allowed in magistrate court.

How long do I have to respond to a motion for summary judgment in a Georgia credit card lawsuit?

You have 30 days to respond to a motion for summary judgment.  If you don’t, then you may lose without ever getting a chance to present your side of the story.

What is summary judgment?

Summary judgment is when a state or superior court decides there are no genuine issues of material fact for a jury to decide and grants a judgment for one party or another.

To understand this, we need to unpack the statement and discuss the roles of juries and judges in cases.

Who decides questions of law and questions of fact?

Juries decide the facts in a case.  Judges make decisions on what law applies to a case.

In a bench trial, the judge acts in the role of both judge and jury.  (All magistrate trials are bench trials.)

Deciding the facts of a case is called the role of the fact finder by lawyers.

What is a genuine issue of material fact?

There are always two or more sides to a story.  When all sides to a story agree on a fact, or when only one side is presented, then there are no genuine issues with that fact.

In short, the fact-finder (jury or judge) does not have to decide between two competing versions of the truth.  Either all versions agree, or only one version exists.

What facts are important in a summary judgment case in a credit card lawsuit?

Credit card lawsuits in Georgia have three basic elements, plus a fourth element if the case involves a third party debt collector.

A third party debt collector must prove facts which show it is the right party to sue you.  This requires a written chain of assignment from the original creditor to the third party debt collector.

In addition, the debt collector must show (1) the subject matter of a contract, (2) consideration, and (3) mutual assent to the contract by both parties.

Practically, this means showing:

  1. The correct amount is owed;
  2. The correct amount of interest applies;
  3. Whether attorney fees can be awarded by contract (if they are asking for this);
  4. Whether the Defendant (you) used the card;
  5. That you stopped paying the credit card company as required by the contract.

Other facts may be relevant to your specific case, but the above are the most common facts at issue in most Georgia credit card lawsuits.

How do I respond to a motion for summary judgment in a Georgia credit card lawsuit?

You must respond by showing there are genuine issues of material fact.  Therefore, you must point out if the chain of assignment does not show your specific account was assigned to the Plaintiff.  Or you can show that the amount requested by the Plaintiff is not the correct amount.  Or you can point out any of the above issues are either wrong, incorrect, or not supported by evidence presented by the Plaintiff.

Evidence rules in motions for summary judgment

Motions for summary judgment have some evidence rules which can make them complicated.  First, if the Plaintiff has submitted evidence in support of a claim or fact, you have to submit counter-evidence.  This evidence can be in the form of a document or statement recorded in an affidavit.  Second, your evidence must be allowed in court—this is called “being admissible evidence.”

Affidavits must be based on your personal knowledge.  Documents must have been kept in the regular course of your personal business.  (This is called the business records exception to hearsay.)

If the Plaintiff makes a claim of fact and you do not counter it with a denial in an affidavit or a contradicting document, the court can find that fact in the Plaintiff’s favor.

Sometimes you don’t have evidence to contradict the fact, but the Plaintiff’s own evidence may not support what they claim it does.  This is most common when it comes to the chain of assignment in third party debt collector cases.  Often I see Bills of Sale which refer to an Exhibit or Schedule which lists the accounts being sold.  However, this Exhibit or Schedule is not included.  At best, the Plaintiff may include a spreadsheet printout which it will claim is the Exhibit or Schedule, but it only includes one account (sometimes yours, sometimes not) rather than the thousands which were sold.

You do not have to provide evidence to contradict this—you simply need to be clear in your response that the documents the Plaintiff claims supports its assignment rights to the debt do not actually identify your debt.

The Plaintiff’s burden in a motion for summary judgment—facts view in the light most favorable to the non-moving party

The good news is if you are served with a motion for summary judgment, the court will have to give deference to the facts in your favor.  Therefore, when the facts are reviewed, and when there are two different versions of events, the court will consider the one which benefits the non-moving party—the party responding to the motion, not the party who filed it.

However, bear in mind that if you do not present different versions of events then the court will only be able to consider one version.  In addition, the court will weigh facts based on the type of evidence you present.  If the Plaintiff produces a contract signed by you which says the agreement was one thing, but you put in an affidavit saying it was another, then that is not (usually) sufficient to counter the Plaintiff’s evidence.

Practically speaking, if you are going to contradict the amount they claim you owe, you need to be able to show reasons why you do not owe that amount based on (1) your own documents and records or (2) holes in the Plaintiff’s documents or records.  A mere affidavit will likely not be sufficient.

What happens if the Plaintiff wins the motion for summary judgment?

The Plaintiff wins if they win the motion for summary judgment.  This is a judgment, and they can begin collecting against you.

What can I do if I get a motion for summary judgment against me in a Georgia credit card lawsuit?

You can file a motion for reconsideration.  Or you can appeal the decision.  Or you can begin negotiation a payment plan with the Plaintiff.

Conclusion

Motions for summary judgment are a big deal.  You can win or lose a Georgia credit card lawsuit with a motion for summary judgment.

If you have questions about a motion for summary judgment in your case, or if you feel you need help responding to one, then please speak with an experienced credit card lawsuit attorney.  Many of us experienced credit card lawsuit attorneys are willing and able to enter a case even right before a response motion for summary judgment is due.

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