Georgia Credit Lawsuits

Information about credit card and other debt collection lawsuits in Georgia

Top 3 Reasons To Hire An Attorney To Deal With Your Credit Card Lawsuit

1.  Experienced credit card attorneys give you a better chance to win.

Experienced credit card attorneys know the law, the rules of evidence, and the procedural rules of the court. We also know what questions to make, how to make a case, and how to defend a case. The simple fact is that an experienced credit card attorney will give you the best chance to win, and will give you a better chance to get a good result in settlement (if that is the route you choose to take).

By hiring an attorney you can prevent a default judgment, possibly win the whole case, and even if you settle, you can often do so with terms that work for you.

2.  Attorneys take the burden off of you.

When you hire me or another attorney then we take over the case. It also means the debt collector is not supposed to call you again. They have to call your attorney. For someone who has been harassed by a debt collector and is stressed over a lawsuit, this can be great piece of mind.

Does this mean you don’t have to worry about the outcome of the case? No. But it does mean you don’t have to worry about all the little details anymore—that’s your attorney’s job.

3.  Attorneys can save you time and money.

It can be cheaper to pay an attorney than to do it yourself. Our fees may seem expensive (although I try to keep mine low), but you often save money in the long run.

For example, a client being sued by a third party debt collector over $20,000 may balk at my typical fee of $1,500 pre-trial and $1,500 if we go to trial. However, if I win and the client no longer owes the debt, I’ve saved them$18,500.

Even a client who wants to settle and is being sued by an original creditor can benefit. If the client is being sued in Magistrate Court for $8,000 but I am able to negotiate the amount down to $4,000, and my fee was $500, then I have saved the client $3,500.

This is not a promise that I can save you this kind of money—each case is different and unique. However, it does illustrate how you can save money by hiring an experienced credit card attorney.

But it’s more than just the money, it’s the time and stress involved with managing a lawsuit. If you hire an experienced credit card lawsuit attorney, then you don’t need to worry about learning the law for your case. You no longer have to worry about deadlines. You don’t need to deal with the paralegals who work for the law firm suing you.

To give you an idea of the time involved in these lawsuits, I tend to put in around 7 to 15 hours for each case. Even with my experience, there are cases where I have put in 30 or more hours of my time. These are the cases I have handled since I’ve gained experience in these lawsuits.

I put in over 80 hours of work in my first credit card lawsuit. This is with the experience I already had in legal research and managing a case. While it was a complicated case, this gives you an idea of the time it might take someone who is learning about credit card lawsuits for the first time.

What could you do with 80 or more hours of your time? How much work could you do? How much time with family and friends could you have?

So there is the time you save by hiring an experienced credit card lawsuit attorney, plus there are the potential savings an experienced credit card lawsuit attorney may earn while working your case.

Conclusion

I understand many people simply cannot afford an attorney—even at my affordable flat fees. After all, if you had a lot of money you probably would not be sued over a credit card debt.

However, it is important to understand that an attorney can give you the best chance for a good outcome, can take the stress off of managing a court case, and can save you money in the long run.

Most importantly, if you have been sued, give me or another attorney a call. You won’t know whether you can afford an attorney until you ask, and we love to hear from potential clients. Plus, if you call me, I tend to try my best to give you information that will help you protect yourself and your rights. After all, that’s why I created this website.

The top 5 tips for choosing an attorney in a credit card lawsuit

Choosing the right attorney for you is key in any legal issue you are facing—whether it is a credit card lawsuit, a will, a divorce, the formation of a business, or a criminal matter. You need to choose an attorney that will be the right fit for your needs.

I want to be your attorney. However, sometimes I am not the right attorney for you. Whenever I speak with a potential client I give them an overview of my services and the way I handle cases—this gives them and me and opportunity to determine whether I will be the best fit for their needs.

As much as I want to be your attorney, I want you to succeed more than anything. Therefore, if I am not the right attorney for you, then I will be frank and tell you that I think you should go in another direction. I may even be able to refer you to someone who fits your needs better.

Top 5 tips for choosing an attorney:

The following are five guidelines you should consider when you choose an attorney to handle any legal matter you might have.

1.  Personality.

Everyone’s personality is different. You want to choose an attorney that complements your personality. If you are laid back, you may not want an intense lawyer who sends constant deadline reminders. However, if you are intense yourself then you may not want a more laid-back attorney.

Some clients have a personality that needs more reassurance and hand-holding. They want their attorneys to update them almost weekly, whereas other clients may want little to no communication about their legal matter—they just want to know when they need to sign something.

Further, some clients want to try and keep cases amicable, whereas others want to use a scorched earth method of litigation. You need to choose an attorney who’s philosophy in handling a case will fit your own.

At the same time, you should consider where your strengths and weaknesses are so that you can find an attorney to complement these. If you need a lot of reminders, then you may want the intense attorney who sends many reminders. If you are in a difficult place and emotionally fragile, then you may need someone who is able to hold your hand and provide moral support.

The key is to find an attorney who’s personality matches your needs. You can often get this feeling from your meeting with the attorney, and in how the attorney’s staff (if they have any) treated you. There are too many good attorneys out there for you to have to settle one someone who doesn’t make you comfortable, or who’s often leaves you feeling uncomfortable.

2.  Cost.

Some put this at number 1. Some put this lower. However, there is no denying cost is a factor to consider.

While we may all want Paul Clement, the exceptional lawyer who argued the healthcare act for states challenging it (or Donald Verrilli, the guy who argued for the government), few of us can afford Mr. Clement’s roughly $1,000 per hour fee.

Nevertheless, it is important to look beyond the pure bottom line. You need both an attorney you can afford, and one who suits your needs. Plus, you should hire someone who’s personality works well with yours. Do not shortchange the other considerations simply in favor of this one.

In the end, hiring the wrong attorney because he or she is cheap can end up being more expensive than hiring the right attorney who’s initial cost was more.

3.  Background and experience.

The attorney you hire needs to have a background that allows them to understand your needs. If you are being sued by a credit card company, you probably don’t want someone who represents banks on an hourly fee to represent you. They may not understand the specific stresses you are facing.

Similarly, if you are a tech company, you may not want to hire an older attorney who has secretaries type his documents on a computer because he doesn’t know how to use one.  If you are forming an internet-based company and your attorney doesn’t know what the internet is, that can be a big problem.

Which leads to experience. Experience is hard to measure. There is no magic experience level which indicates an attorney will work well on your case or do poorly. Rather, consider the type and amount of experience the attorney has.

One big reason experience is important is that more experience means the attorney can take less time on your case with similar results. For example, because of the number of credit card lawsuits I handle, I can quickly sort through the documents provided by a Plaintiff to see what the strength of their case might be. It may take an attorney with less experience much more time. (I know it did for me when I started out.)

Experience, though, does not mean quality. I have dealt with many attorneys with much more experience than me, but who do not do a good job with litigation or other legal matters. This can be because the attorneys are burnt out, or because they have reinforced bad habits over the years, or many more reasons.

4.  Recommendations.

Get recommendations from the folks you know. These can be attorneys who don’t handle the type of issue you have, or friends and family who have relied on attorneys in the past in a matter. Sometimes the recommendation will not lead to an attorney you are able and willing to hire, but it can lead to a referral to an attorney who does handle your type of case.

I know that for many of my clients I can refer them to attorneys I trust and would hire to represent me in different types of issues. Find an attorney that others trust, and that you can trust, and ask for a referral if it is not the kind of case they can handle. If the attorney is worth their networking salt then they should be able to provide you a name.

5.  Reputation.

Try and find a way to determine the reputation of the attorney you are looking to hire. Do a Google search on the attorney’s name. Check out Avvo.com’s website or any other lawyer-ratings website. Ask around to see if folks have dealt with the attorney. (Related to Number 4 above.)

Attorneys call this “doing your due diligence.” Many attorneys will research you before they allow you to hire them. If you’re a trouble client then they will try and find out and avoid you. They will also try and find out what basic information they can just to make sure you are who you say you are.

So do your own due diligence. Check your state bar’s website for information on the attorney. See what practice areas they cover. Read their website. Find out what you can because, odds are, you will be paying them not a small amount to handle your legal case.

* BONUS:

Remember that you have the right to fire your attorney at any time. While this may harm the outcome of your case, and cause you to spend more money than you should, it does no one any good to be in a toxic attorney/client relationship.

If you and your attorney get along like cats and dogs, you may want to consider changing attorneys. Just be careful—changing will set your case back, will cost money, and may harm your chances of a good recovery.

Conclusion

There are many factors you may want to consider when choosing an attorney. The above factors are some of those I discuss with my own clients.

In the end, I want you to succeed in whatever it is you are handling (unless it is against me, of course!). Most attorneys, I believe, feel the same way.

Don’t be afraid to ask around about someone, to consider the costs and their experience, and to fire them if you don’t get along.

Good luck out there, and have fun!

Why you want a dismissal with prejudice rather than without prejudice in your credit card lawsuit

A dismissal without prejudice of a credit card lawsuit means the credit card debt collector can bring the lawsuit again. A dismissal with prejudice of a credit card lawsuit means the credit card debt collector cannot refile the lawsuit. In short, a dismissal with prejudice means the Defendant wins, while a dismissal without prejudice just delays a case.

What is the law on this?

Georgia’ Civil Practice Act outlines the rules for dismissals in O.C.G.A. § 9-11-41. A Plaintiff can dismiss at any time voluntarily before the first witness is sworn in.

If a Defendant has filed counterclaims, Plaintiff’s dismissal of their claims will not dismiss the lawsuit—the counterclaims will remain. If a lawsuit cannot be dismissed in a way that allows the counterclaims to remain, then the lawsuit cannot be dismissed without the consent of both parties.

Remember, magistrate courts do not follow the rules of Georgia’s Civil Practice Act. However, they can rely on those rules to inform how they operate. My experience is that Magistrate Courts do follow these the Civil Practice Act when it comes to these dismissals.

Do cases get dismissed before trial by debt collectors?

Yes. This is a common tactic of debt collection law firms. When a Defendant files an Answer—through an attorney or pro se—then many cases are dismissed without prejudice prior to trial. This is often done the day before trial.

This happened to me recently in a case in middle Georgia. The debt collector’s law firm faxed in a voluntary dismissal without prejudice at 3:15 PM the day before trial. They did not provide my client notice. (I had not entered my appearance so they did not know about me yet.)

We were able to get the court to change the dismissal to one with prejudice. My client had filed a good pro se Answer and this saved us in this case.

So how can I protect myself against dismissals without prejudice?

My client and I were fortunate down in middle Georgia in our case. The other side might still appeal, but for now she is protected against the refiling of the lawsuit.

The only way to ensure you can avoid a dismissal without prejudice is to file a counterclaim. You must be careful about this, however. Filing a frivolous claim can be worse than filing no claim at all. You can end up owing attorney fees and court costs to the other side.

Common grounds for counterclaims are violations of the Fair Debt Collection Practices Act and the Truth In Lending Act.

Is it bad to have a dismissal without prejudice?

No, a dismissal is still a dismissal. While it is not complete closure on the matter, in many cases credit card debt collectors will not refile a credit card lawsuit they have dismissed.

So if you do end up with a dismissal without prejudice in a case you prepared to defend then it is not the end of the world. For the time being, you have won and they have lost. They will have to pay more money to refile the lawsuit, and the statute of limitations still applies.

How to Answer a Credit Card Lawsuit

A Sheriff’s Deputy or a Private Process Server has come to your door and given you papers. Those papers are a credit card lawsuit. What happens now?

This post will examine the process for responding to a credit card lawsuit Complaint with an Answer. This discussion is based on Georgia law, and it is only being provided as an example for information purposes only.

Remember, every credit card lawsuit case is different, and you should speak with an experienced credit card lawsuit attorney if you have been sued by a credit card company or a third-party debt collector.

Remember Credit Card Lawsuit Deadlines

Remember from an earlier post that there is a 30-day deadline for responding to a credit card lawsuit. You respond to a credit card lawsuit by filing what is called an “answer.” Failure to respond by filing an answer can result in what is called a “default judgment.” This means you’ve lost the case by not showing up—an expensive no show!

What is an Answer?

An Answer is a chance for you to admit or deny the claims brought by a third-party debt collector in a credit card lawsuit. You can either admit or deny the debt collectors claims. We’ll look at a model credit card lawsuit Complaint and a model credit card lawsuit Answer as part of this blog post.

Analyzing a Complaint

First, take some time to look over the model credit card lawsuit Complaint. The credit card lawsuit Complaint has an opening paragraph that introduces the Plaintiff and briefly states what this document is. Then the Complaint has a series of numbered paragraphs.  These numbered paragraphs are the meat of the Complaint.  (Or should be, if drafted properly.)

Paragraph 1 of the credit card lawsuit Complaint states that this court has the right to make a judgment on this credit card lawsuit. Jurisdiction means the court can issue an order the Defendant must follow, and venue means that this court is the right location for the credit card lawsuit matter to be heard. Finally, in this credit card lawsuit Complaint the Defendant’s address is included in this paragraph.  (Sometimes it has its own paragraph.)

Paragraph 2 states more details such as (1) the amount allegedly owed, (2) any interest allegedly owed, (3) whether the Plaintiff was the original creditor, and (4) what Exhibits contain more information. Sometimes these allegations are contained in multiple paragraphs. When I write my own complaints I tend to break each paragraph down into one element each, but the third party debt collector I modeled this mock credit card lawsuit Complaint off of likes to put all of these claims in one paragraph.

Paragraph 3 of the mock credit card lawsuit Complaint states that the Plaintiff has tried to collect the debt but the Defendant has not paid. I do not think this is necessary, but I know the creditor attorneys who I modeled this Complaint off of tend to include a paragraph like this. Of course, I defend against creditors, so I don’t draft these types of complaints myself.

Responding to the Complaint

First, take some time to look over the model credit card lawsuit Answer.

The basic structure of an Answer, whether for a credit card lawsuit or any other lawsuit, is as follows:

  1. Defenses;
  2. Answer (Admissions and Denials);
  3. Counterclaims (if any); and
  4. Certificate of Service.
In this Answer I have raised a defense called “failure to state a claim.” This simply means that the Complaint fails to state a claim that the court can grant a judgment on. This is a standard defense included by many attorneys in their Answers, but it is also difficult to win on. The Plaintiff’s attorney has to really mess up to have a Complaint dismissed for failure to state a claim.

When you respond to a credit card lawsuit Complaint, you have to either admit or deny the claims made by the Complaint. In my model credit card lawsuit Answer, I do this by admitting or denying the numbered paragraphs in the credit card lawsuit Complaint. Notice that my paragraph numbers match the Complaint’s paragraph numbers.

I admitted paragraph 1 of the Complaint, but denied paragraphs 2 and 3.

Remember that paragraph 1 was the paragraph about the Defendant’s address and whether the court can hear this case. Sometimes Plaintiffs filing credit card lawsuits get this wrong, so if the residential/living location facts in a credit card lawsuit Complaint are wrong you should deny them.

Paragraph 2 had the meat of the Plaintiff’s claims. The safest thing to do here is to deny this. However, there is a risk if you deny something that is true. Knowing when to deny claims and when to admit them is a skill attorneys pick up through litigation practice, and this is one reason why it can be important to hire an experienced credit card lawsuit attorney to handle your case.

Paragraph 3 did not really matter, but when in doubt deny the claim.

My Paragraph 4 is a catch-all paragraph. This catch-all basically states that anything not specifically denied or admitted in the Answer is hereby denied.

Verifying Your Answer—Why you need to do this

Many credit card lawsuit Complaints are supported by affidavits stating that the facts in them are true and correct. Under Georgia law, if a Complaint is sworn to by the Plaintiff then the Answer must also be sworn to by the Defendant.

This is called “Verification.” What you do is have a document that you, the Defendant, sign an have notarized swearing that the facts of the Answer are true and correct to the best of your knowledge. Your attorney cannot sign this for you.

Failure to verify your Answer may result in it being rejected by the court. (This is called having your Answer “stricken.”)

If you do fail to verify your Answer, your can usually file a Verification later. This type of failure is called an “amendable defect,” which means courts usually give you a chance to fix the error.

The mock Answer you reviewed as part of this post includes an example of a Verification.

Dangers of Verification

A word of caution about verification—your are swearing that the facts are true and correct to the best of your knowledge when you verify your Answer. This means the statements in your Answer can be used in any future court proceedings. You should consult with an experienced litigation attorney if you are having to verify an Answer.

Counterclaims

The mock Answer includes a Counterclaims section, but the section is empty. This is because counterclaims are trickier than just answering a Complaint.

You don’t need counterclaims to Answer a Complaint. However, if you have your own claims against the Plaintiff then they should be included here.

Failure to include a counterclaim may result in you waiving that counterclaim. Further, bringing a frivolous counterclaim can result in you paying the other side’s attorney’s fees.

Which is why you should speak with an experienced credit card lawsuit attorney before you file any counterclaims in a credit card lawsuit.

Certificate of Service

The final step in Answering a credit card lawsuit Complaint is including a certificate of service.

A certificate of service is a page signed by the person filing the Answer that they have provided a copy of the Answer to the other side.

When you file anything with the court, you must ALWAYS send a copy to the other side. So when you file your answer, send a copy of your answer via mail to the other side.

The certificate of service is merely a statement to the court that you have sent a copy to the other side.  (And yes, include a copy of the certificate of service when you send the Answer to the other side!)

Conclusion

Answers to credit card lawsuit Complaints have a number of elements. I’ve touched on them each here. However, there are tactics and strategies for each element.

While anyone who takes the time can learn how to handle this type of lawsuit (I did, after all), hiring a trained lawyer who is experienced in these types of cases can make a difference.

So speak with an experienced credit card lawsuit attorney if you’ve been sued over a credit card debt.

It is more expensive if you try to do it yourself and then have to hire an attorney to fix your errors. Trust me, I’ve had to do this for a number of my own clients.

Example Files

Mock Answer PDF

Mock Complaint PDF

The burden of proof in a Georgia credit card lawsuit

Debt collectors have the burden to prove they own the debt

This is a simple matter if the debt collector is the original creditor. If you had an American Express or Discover Card, for example, and it is American Express or Discovery that is suing you, then it is pretty clear who owns the alleged debt. (Most AMEX cases I see are handled by Kramer, Linkie & Taylor; Frederick J. Hannah & Associates seem to handle most of the Discover Card cases I see.)

Third-party debt collectors are the folks who buy debts for pennies on the dollar. These folks are required by Georgia law to prove they are the ones who own the credit card debt now rather than the original creditor.

This is a simple matter. When someone buys a credit card debt they must enter into a contract called an assignment. It transfers, or assigns, the debt from the original creditor—such as American Express or Discover or another Bank—to the third-party debt collector.

The rules for this assignment are clear.  (1) The assignment must be in writing and (2) the assignment must reasonably identify the debt.

Each transfer of a credit card debt must be represented by an assignment. This is called the chain of assignment. Therefore, if the original credit was American Express (to pick on AMEX), the next owner was Pathfinder Financial, the next was Cavalry Portfolio, and the last was Cavalry Recovery Services, then each transfer to each third-party debt collector must have its own assignment.

For some reason, most third-party debt collectors have a difficult time providing these documents.

Debt collectors also have the burden of showing that a contract for the credit card account exists

Georgia law allows them to do this rather easily. Usually it is sufficient to show that there was a card and the card was used. This can often be done with a statement addressed to the Defendant that shows a purchase being made.

Sometimes debt collectors have a difficult time meeting this requirement. I’ve seen cases where the debt collector can only show statements with only late fees as the only charge.

Some courts will consider this sufficient, whereas others may not.

Debt collectors must also prove the amount they are claim in a credit card lawsuit

The easiest way to do this is by providing all of the statements for the account. Many debt collectors cannot do this, however.

Some courts allow debt collectors to provide a summary of the credit card lawsuit. Georgia evidence law is a bit dubious of this at the moment, and some courts do not allow it. However, the Georgia rules of evidence will be changing soon. These changes will make it easier for courts to accept these summaries.

Defendants only have the burden to prove their counterclaims in a credit card lawsuit

When I Answer counterclaims on behalf of my clients I sometimes include what are called Counterclaims.

A counterclaim is essentially your own lawsuit against the debt collector. I typically will bring a counterclaim for violations of the Fair Debt Collection Act.

You must be careful in bringing counterclaims, however. Counterclaims may open you up to attorney fees if they are not based on a valid claim. For example, frivolous claims under the Fair Debt Collection Practices Act may result in attorney fees being awarded to the other side.

Further reading

I recommend you also read my post on The Anatomy of a Georgia Credit Card Lawsuit. You may also find my post on The 3 Stages of a Georgia credit card lawsuit to be helpful.

The Fair Trade Commission (FTC) has a whole page of links about the Fair Debt Collection Practices Act. They also have a PDF pamphlet of the entire Fair Debt Collection Practices Act which is in a nice, easy-to-read format.

And, as always, if you are being sued by a debt collector over a credit card debt, you should know why your best chance to win is to hire an experienced credit card lawsuit attorney.

The Anatomy of Georgia Credit Card Lawsuits

Up to this point I’ve written about some specific, narrow aspects of credit card lawsuits in Georgia. I have discussed the 30-day deadline for answering a Complaint in a credit card lawsuit. I have described the three types of courts that end up hearing credit card lawsuits in Georgia. I have also outlined the 3 basic stages of a credit card lawsuit in Georgia.

In this post I will discuss the anatomy of a Georgia credit card lawsuit. I will do this by discussing three things I look for first in any credit card lawsuit I handle.

Focusing on these three things provides an outline of the basic legal issues facing every credit card lawsuit in Georgia. Credit card lawsuits in Georgia must (1) be brought by the person or entity who owns the debt, (2) be brought within the statute of limitations, and (3) make a prima facie case for breach of contract.

Does the Plaintiff own the credit card debt?

Plaintiffs have the burden of proving they have a right to bring the credit card lawsuit against you. This means they must show they actually own the debt upon which they’re suing. This is not a problem if the credit card company is the one suing you.

Third-party debt collectors tend to have a tougher time proving they own the credit card debt. These third-party debt collectors must show the chain of assignment from the credit card company to them which shows that they purchased the credit card debt.

This chain must be complete—there can be no breaks. It must also identify your account in a manner sufficient to connect the dots. This means it must be clear enough to identify the loan or credit card account that is the subject of the lawsuit.

Georgia law requires this chain of assignment to be in writing. In addition, Georgia’s best-evidence rule requires the original assignment documents to be presented as evidence. Testimony from an employee of a third-party debt collector is not sufficient to prove a chain of assignment.

This is a potential stumbling block for third-party debt collectors who bring thousands of credit card lawsuits but keep poor records.

Was the credit card lawsuit filed within the statute of limitations?

Credit card debts have a six-year statute of limitations in Georgia. O.C.G.A. § 9-3-24; Phoenix Recovery Group, Inc. v. Mehta, 663 S.E.2d 290, 291-92 (Ga. Ct. App. 2008). This six-year period does not begin from when the credit card account was opened—it begins when the credit card went into default.  Even after a credit card goes into default, if the account holder makes partial payments on the account then the six-year count must begin again.  So while it might at first seem simple to calculate when a credit card is beyond a six-year statute of limitation, it’s not as easy as it first seems and will depend on the specific facts of each credit card lawsuit case.

Does the lawsuit make a prima facie case for breach of contract?

Plaintiffs must prove a prima facie case in order to win a lawsuit. Prima facie is latin for “at first face” or “at first look.” In other words, does this claim make sense at first look?

Credit card lawsuits are breach of contract cases. Plaintiffs must show three things to make a prima facie case for breach of contract: (1) the subject matter of the contract, (2) consideration, and (3) mutual assent by all parties to the contract terms. Failure to prove any one of these three things is failure to prove a contract exists.

One way credit card companies prove these elements is to show the defendant used the card and therefore benefitted from the account. This shows the subject matter of the account (a credit account), consideration (the loaning of money by the credit card company; the use of that loaned money by the defendant), and mutual assent (the defendant used the money, the credit card company lent it).

How to use this information on the basic legal questions facing credit card lawsuits

This post provides a very general outline of the legal issues facing each credit card lawsuit. If you have been sued by a credit card company, then I urge you to contact an experience credit card lawsuit attorney. It doesn’t have to be me, but speak with someone who is experienced at defending credit card lawsuits.

These cases are often winnable. When they cannot be won, an experienced attorney can help you negotiate with the debt collector.

So speak with an experienced credit card lawsuit attorney about your case—it will provide you the best chance to win at trial.

The three basic stages of a credit card lawsuit

Georgia credit card lawsuits go through three basic stages

Every Georgia credit card lawsuit has three basic stages:

  1. Pleadings.
  2. Discovery and Motions.
  3. Trial.

Not all credit card lawsuits make it to each of these stages. If a defendant never files an answer, or a plaintiff does not file a proper complaint, then the lawsuit may die at the pleading stage. Discovery may also result in the lawsuit dying before it gets to trial. One of the parties may not respond, or the evidence uncovered during discovery may lead to a successful motion for summary judgment. Finally, trial is the stage most people think about when they think of a lawsuit. It’s Law & Order, Boston Legal, Perry Mason, Matlock, and all the other legal shows or movies you may have seen. (A Civil Action is good movie example.)

The pleading stage of a lawsuit

A credit card lawsuit’s pleading stage is the very beginning. A plaintiff must file a complaint or a petition with the court. I use the term “Complaint” in the rest of the post.

The Complaint must be personally served on the defendant. This usually occurs when a Sheriff’s Deputy comes to your door to give you the Complaint. Sometimes a private process server serves you the Complaint. (In the movie Pineapple Express the main character is a private process server.)

Once the Complaint is personally served the Defendant has 30 days to respond.  This deadline is described in a paper called a Summons that is attached to the Complaint.

You must respond to a Complaint within the 30-day deadline. This response is called an Answer. Failure to do so can result in what is called a Default Judgment. You do not want a default judgment against you. It will make it difficult to negotiate with the creditor on making payments, and it makes it more difficult for any attorney you hire to defend you against false claims.

Once again, always Answer a Complaint within the 30-day deadline.

(It is possible to overcome a default judgment. If you have a default judgment against you and you want help, give me a call to discuss your options. I have experience overcoming default judgments and ending garnishments.)

The discovery stage of a credit card lawsuit

Once a Complaint and an Answer has been filed then the discovery period begins.

Discovery does not exist in Magistrate Court—it only exists in State and Superior Court. (To learn more about the different types of courts that hear credit card lawsuits in Georgia please see my earlier post on the subject.)

In State and Superior Court, the discovery period allows you and the other side to ask each other questions and request documents from each other. Either party can also request a deposition during this time.

When you are served with discovery requests, you have 30 days to respond to them. Failure to respond can result in your case being dismissed or certain facts being viewed as the other side wishes. This is bad—always try your best to respond to discovery within the 30-day timeline!

The three primary discovery tools used are as follows:

  1. Requests for Admissions;
  2. Requests for Documents;
  3. Interrogatories to opposing party.

Requests for admissions ask a party to either admit or deny something. There is no limit on the number of these requests you can make. If you do not respond to these requests within 30 days of receiving them then the court will consider the request admitted. This is very bad—always respond to Requests for Admissions within the deadline!

Requests for documents ask a party to provide a category of, type of, or specific document or other record. This includes audio and video recordings.

Interrogatories are questions posed to another party. They must be answered to the best of the other party’s knowledge. Both parties are limited to no more than 50 interrogatories unless the court allows them to ask more.

At the end of the discovery stage, there is usually a Motion for Summary Judgment. The basic rule in a motion for summary judgment is that the court can rule in a party’s favor if there are no “genuine issues of material fact.” This can be a complicated analysis, so I will not go into more detail on motions for summary judgment in this post.

The trial stage of a credit card lawsuit

Magistrate court cases usually proceed from the pleadings stage to the trial stage because discovery cannot be used in magistrate court.

State and Superior court cases proceed to the trial stage usually after a motion for summary judgment is filed.

This is the final stage of any lawsuit. At this stage the Plaintiff has the burden of proving his claims beyond a preponderance of the evidence. This is a lower standard than in criminal cases (which use the “beyond a reasonable doubt” standard).

During the trial the Plaintiff will be restricted by the rules of evidence as to what evidence he can present.

I plan to go over some of the specific in each of these stages in later posts.

The three types of courts that hear credit card lawsuits in Georgia

This post is intended to provide a brief introduction to the court system in Georgia. This is not a comprehensive overview. Further, this introduction to the Georgia court system is geared towards credit card lawsuits.

The three different types of trial courts

There are three different types of trial courts in Georgia—Magistrate Court, State Court, and Superior Court.

There are other courts as well, however. For example, every Georgia county has a Probate Court. Many cities have a municipal court. Some counties have what is called a Recorder’s Court.

Credit card lawsuits are not generally filed in these courts. Probate courts focus on the probate and intestate process of disposing of the estate of someone who died. Recorders courts tend to focus on traffic-related crimes (such as speeding tickets). Municipal courts are like magistrate courts, and could be a place to bring a credit lawsuit, but most creditors use that county’s magistrate court so they can consolidate where there cases are handled.

Magistrate Courts are small claims courts

Court Limits & Case Types

Magistrate courts cannot hear cases where more than $15,000 in damages are sought. This does not include any attorney fees or the the award of court costs. Magistrate courts also cannot handle equity cases. Credit card lawsuits in Georgia are not equity cases. Magistrate court cases do not go before a jury—a judge decides both the issues of fact and law in a magistrate court case.

Court rules & procedures

Complaints (or petitions), answers, and motions are filed with the clerk of the magistrate court. Magistrate court does not follow the Georgia Civil Practice Act. This means cases in magistrate court do not have the process called “Discovery.” I will discuss “Discovery” in more detail in a future posts, but this is process where both sides get to ask the other side questions and for documents related to the case. Magistrate courts in Georgia must follow the Georgia laws of evidence, however.

Other Court Quirks

Magistrate court is designed to be your county’s small claims court.  Therefore, the rules are more relaxed and the judge tends to guide the court case more than a judge in a state or superior court. In fact, the judges in a magistrate court may not even be lawyers. (Although they do receive training by the state.)

Appeals from Magistrate Court

The losing party in a magistrate court case can appeal the case up to the county’s state or superior court. They must pay the filing fee for that court, but the case is treated more-or-less as a new case. This is called “de novo” appeal (latin for “from the beginning”).

Locations

Every county has a Magistrate court. They are often in the same building or near the Superior Court. Sometimes, however, they are in a separate building or even a separate part of town. Magistrate courts (and all county courts) are located in the County Seat for your County.

State Courts can handle large money cases, but not felonies

Court Limits & Case Types

State courts have no restriction on the money damages they can award. This is compared to the $15,000 limit of magistrate courts. State courts are very similar to Superior Courts in Georgia. The main difference is that state courts cannot hear felonies—they are limited to misdemeanor criminal cases. Credit card lawsuits are not criminal, however, and therefore this limit does not apply. You can have your case heard by a jury in a state court.

Court rules & procedures

Complaints (or petitions), answers, and motions are filed with the clerk of the state court. This is often the same clerk as the county’s superior court clerk. State courts do follow the Georgia Civil Practice Act rules. This means the opposing parties in a state court case can go through the discovery process and ask each other questions and request documents prior to the actual trial. As with all courts in Georgia, the laws of evidence are applicable in state courts.

Locations

State courts do not exist in every county. Usually only larger, more populated counties have state courts. They are often in the same building or near the county’s Superior Court. As a county court, county state courts are located in the County Seat for your county.

Superior Courts can handle any legal issues

Court Limits & Case Types

Superior courts have no restrictions on the types of cases they can hear. Cases in superior court may be presented to a jury.

Court rules & procedures

Complaints (or petitions), answers, and motions are filed with the clerk of the superior court. The Georgia Civil Practice Act applies to Superior Courts. This means cases can go through the discovery process.

Locations

Every county has a Superior Court. They are located near the County Seat of your County.

The Fair Debt Collection Practices Act in Georgia Courts

All three of these courts can hear complaints or counterclaims related to the Fair Debt Collection Practices Act (FDCPA). The only limit is if the FDCPA claim is for more than $15,000, then a magistrate court cannot hear the case.

Deadlines for answering a Georgia credit card lawsuit

30-Day Deadline to File Your Answer

You have 30 days to file what is called an Answer once you have been served with a lawsuit in Georgia. If the 30-day period ends on a weekend or holiday, then you must file your Answer on the next day court is open.

File Your Answer With the Court By Giving It to the Clerk

When you respond within the 30-day deadline you must file your Answer with the court. You do this by giving the original document to the clerk of the court where the lawsuit was filed.

You can probably find the contact information and location of the clerk’s office online. In fact, if the lawsuit was filed in Superior Court you can visit the Georgia Superior Court Clerk’s Cooperative Authority’s website (GSCCA.org) to search for the contact information for your county’s Superior Court Clerk: http://www.gsccca.org/clerks/.

Send a Copy to the Other Side

When you file your Answer within the 30-day deadline you must also send a copy to the other side. In fact, whenever you file anything with the court (by filing it with the Clerk) you must send a copy to the other side.

Do Not Contact The Judge Directly

You should not contact the judge in your case directly. The judge cannot help you. The judge must stay impartial.

Plus, contacting the judge directly is something called “ex parte communication.” It is something that can get you in trouble with the court. Every time a party to a lawsuit communicates with the judge about that lawsuit the other side must get a copy of that communication.

DON’T MISS THE 30-DAY DEADLINE!

Failure to file an Answer within 30-days may result in a default judgment against you. This happens in the majority of the credit lawsuits I see. Hundreds, if not thousands of default judgments are issued by courts in credit lawsuits each month in Georgia. Each one was the result of a defendant failing to file an answer within 30 days. This can be avoided—don’t be part of this statistic!

Default Judgments Are Difficult To Overcome

Once a default judgment has been issued you can ask to have the judgment set aside and the default opened. This becomes more difficult the more time passes between the default judgment and the attempt to reopen the case. It also costs money. Even if you do not hire an attorney to handle it, you must pay the filing fees for the other side to reopen your case. In Georgia, Superior Court filing fees run around $200 to $220 depending on the county where the lawsuit was filed.

Hire an Attorney to Guide You Through the Court Process

An experienced attorney will guide you through the litigation process, beginning with the filing of your Answer. Doing it yourself can be time consuming. Further, court process can be confusing and daunting. There are a number of rules that attorneys know and follow that end up being traps for the unwary defendant.

I will describe in future posts what you should include in your Answer.

As always, if you have been sued by a credit card or other creditor, or by anyone, I highly recommend you consult with an attorney. Good luck, and have a great day!

Defending against credit card lawsuits

Debtors Have Rights Too

I represent people who have been sued over credit card debt. These lawsuits may be by the original credit card or a third-party debt collector.

People sued over debt deserve to be protected by the law just as much as the creditors suing them for unpaid bills. Unfortunately, I often see people fail to respond to lawsuits or not understand how the court process works.

If you have been sued by a credit card or a third-party debt collector, learn more about why it is important to speak with an experienced credit card lawsuit attorney. Read on to learn more about why I started this blog.

This Blog Hopes To Demystify The Legal Process

We lawyers go to school for 3 years to learn how the legal system works. After that, we have to take a difficult test to be admitted into the practice of law. Even then, most new lawyers have to take time to learn the procedural rules of litigation.

All this is to say that you are not alone in being confused by the rules of a lawsuit. It is no wonder that non-lawyers, what we attorneys call pro-se litigants, often have lots of trouble protecting their rights in the courts of law.

The hope is that the information provided on this blog will help demystify the legal process in credit lawsuits filed in Georgia courts. This blog will cover the procedural rules on what to file and when, as well as the substantive rules of law on what each side needs to prove to make their case.

Shedding light on laws protecting debtors

This blog will also discuss some of the laws that have been passed that protect debtors. Creditors have armies of attorneys and paralegals, call centers who call debtors to get them to pay, and mailing industries to send out demand letters. Nevertheless, debtors do have rights.

The Fair Debt Collection Practices Act (FDCPA) seeks to prevent abusive debt collection practices. The Fair Credit Reporting Act (FCRA) tries to protect debtors from false credit reports from creditors. The Truth In Lending Act (TILA) sets out minimum disclosure requirements that lenders must meet.

The Federal Trade Commission (FTC) punishes debt collectors that abuse the system. The new consumer agency created by the Dodd-Frank Act will oversee debt collectors in the future as well.

These laws and regulatory agencies will be explored in discussed alongside the nuts and bolts of credit lawsuits in Georgia.

Information for Consumers, But Not Legal Advice

Finally, and most importantly, the information provided in this blog is just that—information. It is not legal advice.

Legal advice can (and should be) only given by a licensed attorney from your jurisdiction after you have discussed your issues with that attorney.

None of the information on this website forms an attorney/client relationship between the authors and you. None of this information means that the author of a post is your attorney.

None of the authors at this blog will represent you without a signed, written retainer agreement between you and the author.

In the end, however, the authors hope that the legal information provided helps you better understand the law and the legal process.

Consult An Attorney If You Have Specific Questions

As always, if you have legal questions, consult an attorney about your specific case.