Georgia Credit Lawsuits

Information about credit card and other debt collection lawsuits in Georgia

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.

Leave a Reply