Georgia Credit Lawsuits

Information about credit card and other debt collection lawsuits in Georgia

Fighting Credit Card Lawsuits—A Quick Guide To Magistrate Court

So you’ve been sued over a credit card debt.  Maybe the original creditor—the bank, such as Discover Bank, American Express, Bank of America, or Capital One—is suing you.  Maybe a debt buyer is suing you—such as Midland Funding, Portfolio Recovery, LVNV, CACH, Cavalry SPV, Unifund CCR, Asset Acceptance.

So now what?

Answer Within 30 Days of Service

First, you must answer the lawsuit within 30-days of service.  To do this, you have to go down to the clerk of court and file an Answer.  The Clerk can help you file the Answer, but the Clerk cannot tell you how to write the Answer (or give you legal advice).

You can learn about how to Answer a credit card lawsuit, either in How to Answer a Credit Card Lawsuit in Magistrate Courtor elsewhere, on this website.  All of our posts on Answering credit card lawsuit can be found here: How to Answer Credit Card Lawsuits in Georgia.

What does “Service” of the Lawsuit Mean?

You are “served” with a lawsuit when someone brings you the lawsuit in person.  You should receive a copy of the Summons as well as the Statement of Claim or Complaint.

The Summons tells you who is suing you, the case number, the Court information, the deadline for answering (30 days), and other information about what you should now do.

The Statement of Claim or Complaint is the actual lawsuit—it should tell you the grounds for the lawsuit (why they are suing you) as well as the amount they are claiming you owe them.

Service Cannot Be Done Through The Mail

You cannot be served through the mail.  Someone must come and hand deliver the lawsuit to you, or to someone living in your house.  (A room mate, spouse, or even a teenage son or daughter can count.)

Service Cannot Be Done By Leaving It On Your Front Door

You cannot be served by someone posting your lawsuit on your front door.  The exception is if you are home, come to the door, the service processor says they are serving you, and you refuse to open the door.  BUT, if you come home and a document is attached to your door, then that is NOT sufficient service.

The Service Processor Is Not Required To Get Your Signature

A service processor, the person serving you, is not required to get your signature.  They can ask you name, hand you the lawsuit, and then walk away.  This is sufficient service.

If you refuse to accept the lawsuit in your hand, they can drop it at your feet, and this is sufficient service.

Service Processors May Be Sheriff’s Deputies or Other Individuals

Service of lawsuits is the job of the County Sheriff in most Georgia counties.  Many Plaintiffs us Sheriff’s deputies to serve their lawsuits.

However, in debt collection cases like credit card lawsuits, many debt collection firms have their own process servers they hire to serve lawsuits.  These folks are not necessarily sheriff’s deputies, and may not be in uniform.

What Happens After Filing An Answer in a Credit Card Lawsuit?

Depending on the court in which your lawsuit is filed, you may be given either a hearing date for your case or a mediation date.

For example, in Gwinnett County and DeKalb County magistrate courts, you will likely receive a hearing date between 3 and 6 weeks from the date you file your Answer.  These hearings are typically on Thursday evenings at 6:30 or 6.

In Fulton County magistrate court, however, you may receive a notice of mediation.  These mediations can happen on different dates and times.

READ YOUR COURT NOTICES CAREFULLY!

Check the time of the hearing.  Look at the Courtroom number.  Make sure you know WHERE the Courthouse is located.  (In some counties, the Magistrate, State, and Superior courts are in the same building, in connected buildings, or nearby each other, BUT in some counties the courthouses can be in altogether different locations.)

If you are not Experienced Credit Card Lawsuit Attorneys, then you need to make sure you can appear at your hearing.

What Can I Expect At A Hearing?

If you filed an Answer, then you are going to have a contested hearing.  Read our guide to trials in Georgia Magistrate Courts on contested hearings.

Briefly, the issues you need to look for are as follows:

  1. Did the Plaintiff bring a witness?
  2. If no witness, do they have an Affidavit?
  3. If an affidavit, did they mail it to you prior to the hearing?
  4. Who made the records?
  5. If this is a debt buyer case, does the assignment show your name or account number on the assignment documents?  Or does it show it in a separate, redacted document created by the Plaintiff just for this lawsuit?
  6. Are the amounts correct?
  7. Is the interest rate they’re applying correct?
  8. Did you receive the statements?

A longer and more detailed guide to Georgia magistrate court trials in credit card lawsuit cases can provide more detail.  We highly suggest you read through our guide if you have more questions, or speak to an experience credit card lawsuit attorney to find out what we can do for you.

Post-Judgment

 

If a debt collector obtains a judgment against you, this does not automatically mean your money will move from your bank account into their bank account.

A debt collector—or anyone possessing a judgment—must then find a way to get you to pay that judgment.

The most common way this is done is through negotiation. Even if you forced them to try their case, you can still try and work out a repayment plan that fits within your budget. In other words, all is not lost!

If you cannot work out a repayment plan, then a debt collector may use the tools of post-judgment discovery or garnishment to try and collect from you.

Post-Judgment Discovery

Post-judgment discovery is a tool used by debt collectors to find and locate your assets (and yourself!).  This can be in the form of questions (interrogatories) or even a deposition.

Be careful if you receive post-judgment discovery! There can be consequences if you fail to respond. Read through any notices carefully, and speak with an experienced credit card lawsuit attorney if you have questions.

Garnishments

Garnishments are a tool debt collectors can only use once there is a judgment already entered against you.

Sometimes you know about this judgment. However, many times our clients call us without knowing there was a judgment in the first place. This is not uncommon, and there may be ways to fix it.

To learn more about how to fight a garnishment in Georgia, check out this guide on our website: http://georgiacreditlawsuits.com/garnishments/

Speak to Experienced Credit Card Lawsuit Attorneys If You Have Questions

Experienced credit card lawsuit attorneys will be able to provide you the advice you need to answer your questions and help you determine your best options.

Contact an experienced credit card lawsuit attorney if you have questions.

No Comments by  /  August 31, 2015  /  Posted in: Credit Lawsuits in Georgia

Fighting Garnishments—A Guide to Georgia Garnishments and Traverses

What is a garnishment?

A garnishment is one way someone with a judgment against you can collect a debt.  The court directs a third party—such as your employer or your bank—to hand over your property (usually your money or wages) to a plaintiff who obtained a judgment against you.

A garnishment is not a new lawsuit

Garnishments are not new lawsuits.  However, they receive new case numbers.  Also, they are not filed in the county in which you live—they are filed in the county in which the property or money exists.

For example, if your bank is headquartered in Gwinnett County, but you live in DeKalb County, then a garnishment may be filed in Gwinnett County instead of DeKalb County.  Similarly, if your company is based in Fulton County, but you live in Cobb County, the garnishment may be filed in Fulton County instead of DeKalb County.

How do I stop a garnishment?

A garnishment means there is an underlying judgment against you.  Until you deal with that underlying judgment—either by satisfying the judgment debt or by getting the case reopened—the Plaintiff can keep filing garnishments against you.  Attacking a garnishment, even if you win, will not deal with the underlying debt.

Having said that, there are ways in which you can fight back against garnishments and stop them.

The Legal Grounds to Attack and Stop a Garnishment

There are basically three grounds on which you can attack a garnishment:

  1. The judgment does not exist (or has been satisfied);
  2. The amount claimed is incorrect; and
  3. You were not given proper notice of the garnishment.

You cannot attack the validity of the underlying judgment in the garnishment.  You must do that in the court where the judgment was made.  (This is called setting aside and opening the case.  Basically, it is getting a court to admit that such errors were made that the case must be reopened.)

This can be found in O.C.G.A. § 18-4-65 and 18-4-64(e).

The most common reason to attack and stop a garnishment is that you were not properly served with notice of the garnishment.  The second most common reason to attack and stop a garnishment is that the amount claimed is incorrect.  The least common reason to attack and stop a garnishment is that the judgment does not exist or has been satisfied.  (This is because most garnishments are based on underlying judgments, whether valid or not.)

Traverses — How You Attack and Stop A Garnishment

The document you file with a court to attack and stop a garnishment is called a “Traverse.”  The court where the garnishment has been filed may have form Traverses which you can fill out.

In the Traverse you must state the ground for stopping the garnishment.  The three basic grounds are (1) no judgment exists (or it has been satisfied), (2) the amount listed in the garnishment is incorrect, and (3) you were not provided proper notice of the garnishment as required by law.

What is Proper Notice of a Garnishment?

O.C.G.A. § 18-4-64(a) outlines what a Plaintiff must do to provide you notice of the garnishment.  Failure of the Plaintiff to meet one of these notice requirements means the court must dismiss the garnishment and release any funds collected to that point.

There are seven ways a Plaintiff may provide notice of the garnishment to you, plus a catchall.

The seven methods of service in O.C.G.A. § 18-4-64(a) are:

  1. By personal service like you were served with a lawsuit.  This is a Sheriff’s Deputy, Marshall, or private processor coming to your door.  This must be done “as soon as practicable.”
  2. By certified mail or statutory overnight delivery (such as FedEx overnight).  Return receipt or proof of delivery is required, and this proof must be filed with the court.  This must be sent to your last known address, and it must be sent between the time the garnishment was filed with the court up to no more than 3 days after your bank or employer was served with the garnishment.  (If they mail it to you 4 or more days after your bank or employer were served, they missed their deadlines.)
  3. Personal delivery or delivery on your attorney.  The person delivering it must file a certificate with the court describing the delivery.
  4. The fourth method concerns serving folks out of state.  If they know your address then they still have to mail you notice, and this has to be done within 3 days of the garnishment being served on your bank or employer.
  5. You can be served by publication if you no longer live in Georgia or are otherwise concealing your location.
  6. If the garnishment has been filed within 60 days of the judgment, then they can send you notice through regular mail.  This must be done within 3 days of the garnishment being served on your bank or your employer.  The notice must be sent to the address at which you were served with the underlying lawsuit.
  7. They can send you notice via regular mail to your address if it is known.  This notice must be sent within three days after service of the garnishment on your bank or employer.

Where do Plaintiffs Most Commonly Mess Up Notice?

Notice of the garnishment cannot be filed before the garnishment was filed.  Further, it must be sent no more than 3 days after service of the garnishment on your bank or employer.

This is the most common mess up by Plaintiffs.  I have seen a number of cases where a bank or employer was served with notice on, say, the 1st of the month, but notice was not sent out until the 5th of the month.

If this occurs, then you have a case and may be able to win a traverse hearing.

When should I call you or hire you?

If your garnishment is going to tie up $1,500 or more of your money, then you should call me.  I will discuss your options, determine whether it may help you to hire an attorney, and try to determine whether there is a fee structure that works for both of us.

I handle Garnishment Traverses on a flat fee basis.  My base rate is a flat fee of $1,000, although I will adjust that both up and down depending on the nature of the case.

So call me—we may be able to work out a payment amount or payment plan that works for you.

No Comments by  /  August 19, 2014  /  Posted in: Credit Lawsuits in Georgia
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How to Answer a Credit Card Lawsuit in Magistrate Court in Georgia

This is a quick-and-dirty post on how to Answer a credit card lawsuit in Magistrate Court in Georgia.  This other post has more information on Answering credit card lawsuits, including State and Superior Court lawsuits, as well as example files — How to Answer a Georgia Credit Card Lawsuit.

Do the Following When Answering A Credit Card Lawsuit In Magistrate Court

  1. Deny what you can.
  2. Admit what you cannot deny.
  3. Do it in writing.
  4. File the original with the Court.
  5. Send a copy to the other side.

Deny what you can.  You may believe that you owe someone some amount of money.  That is fine.  However, based on the information provided in the lawsuit, can you categorically admit that you owe the Plaintiff the exact amount of money they claim you owe?

You can deny (1) owing a third-party debt purchaser and (2) the exact amount they claim for a number of reasons.  First, if it is not the original creditor, then do they prove in their complaint that they own the debt?  To prove this, they have to have a chain of assignment for the debt in writing.  This chain of assignment must identify your debt.  Often they have Bill of Sale, but don’t include the attachment which identifies the accounts to be sold.  Sometimes all they provide is an Affidavit—this is NOT sufficient under Georgia law!  An affidavit is not an assignment in writing, and should not be used to prove ownership of a debt.  (Although sometimes courts ignore this.)  You can learn more about a Plaintiff’s burdens at this post: The Burden of Proof in Georgia Credit Card Lawsuits.

Even if it is the original creditor, do you know if that is the amount you owe?  Was interest calculated properly?  Were penalty fees properly applied?  Are you certain those amounts are accurate?  Probably not—a lot typically happens between default and collections.  Challenge them to prove the amount using evidence!  It is their burden, and it is your right to ask them to do it!

Admit what you cannot deny!  If you live at the Address where they claim you live, and if you live in the county in which the lawsuit was filed, then admit that you are subject to the jurisdiction of the court.

Do it in writing!  Calling up the Plaintiff or the court to deny the claims is not sufficient.  You can often go down to the Magistrate Court and have the Clerks take your statement denying the claim in person—do that if you don’t want to write up a denial!  On top of that, they will often mail it to the other side for you!

File the original!  You can mail it in to the court, or go in person.  If you go to the court in person, they can take your statement denying the claims in person, and often mail a copy to the other side.

Send a copy to the other side!  The other side needs to be aware that you are denying the claims.  Do this.  They have to send you copies of what they file, too.

Don’t Do the Following When Answering A Lawsuit in Magistrate Court

  1. Don’t ask for a payment plan!
  2. Don’t say you don’t know how to Answer the claims without also adding “and therefore Plaintiff’s claims are DENIED.”
  3. Don’t miss your 30-day deadline to Answer!
  4. Don’t forget to mention if you no longer live in the county in which the lawsuit was filed!

Don’t ask for a payment plan!  The court can’t order payment plans.  The court can only issue judgments.  Payment plans are negotiated with the Plaintiff.  If you want to do a payment plan, then file an Answer which DENIES what you can deny.  Then contact the Plaintiff and negotiate the settlement with a payment plan.

Don’t say you don’t know!  A number of potential clients have told me they learned on the internet that they should neither admit or deny claims.  Instead, they should say that they “lack sufficient knowledge to answer” a claim.  No!  This is not a bad response, but you must then add “and therefore the claim is DENIED.”  Be clear about the denial.  Otherwise, you are giving the other side room to argue that your Answer is insufficient and ask for it to be stricken.

Don’t miss your 30-day deadline!  8 out of 10 folks don’t answer these lawsuits.  I see their names on the “default” calendar when I go to court.  Don’t be one of those people!  If you Answer, even if you do it poorly, you are still doing better than 80% of the folks who get sued.  Don’t get a default judgment against you—Answer the Complaint!

Don’t forget to mention you moved!  If you moved out of the county in which the lawsuit was filed, you have a right to be sued in your new home county.  Tell the court you no longer live in the county, and ask for the lawsuit to be moved!

Consult An Experienced Credit Card Attorney If You Have Questions

Attorneys who focus on these types of credit card lawsuits are affordable, and your chances of success increase dramatically if you hire one.  So contact an experienced credit card attorney if you have questions!  Protect your rights, and ensure the other side is forced to prove their case!

No Comments by  /  December 16, 2013  /  Posted in: Credit Lawsuits in Georgia
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Credit card lawsuit case evaluations — What to expect and what you need to provide

Evaluations can be done over the phone

Most of my clients prefer to do an evaluation over the phone.  This is fine.  I will need to obtain certain information and get copies of certain documents from you, but otherwise we can discuss your options on the phone.  I can even sign you up by emailing you a retainer agreement if you choose to hire me.

Evaluations can be done over email

Many clients also choose to have an evaluation done by email.  This is fine as well.  As long as you can get me copies of your documents, I can evaluate your case and provide you options to consider.  If you choose to hire me I can email you the retainer agreement.

Evaluations can be done in person

If you prefer to meet in person, then this is fine as well.  I have multiple offices in which I can meet you.  This includes Duluth, Buckhead, and Peachtree Corners locations.  Call or email me for more information on these locations.

What you need to bring

I need to see the Complaint filed against you, as well as any exhibits or other documents attached to the Complaint.  If you have already answered, I need any other documents filed with the court by either side.  I need any and all attachments.

What to expect

I should be able to tell you the following;

  1. Have I dealt with the Plaintiff?
  2. Have I dealt with the Plaintiff’s lawyers?
  3. Are they a third-party buyer or an original creditor?
  4. Whether I advise fighting the lawsuit or negotiating a settlement

I cannot promise you any specific result.  I may be able to give you an idea of what I have seen in the past, but that doesn’t mean the Plaintiff will do something different this time.

If a lawyer does promise you a specific result, then run away.  Seriously.  No lawyer should believe they can tell the future.  Unless they truly can.  Then again, if I could tell the future, then I would be playing the lottery and not doing this lawyering thing.

Contact me if you wish to speak to an experienced credit card lawsuit attorney.  And good luck, no matter what, on your case!

No Comments by  /  December 16, 2013  /  Posted in: Credit Lawsuits in Georgia
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Robo-signing in credit card lawsuits—it’s not just happening in foreclosures

Two links highlight the problems of robo-signing in credit card lawsuits.  They also give good outlines on the problems many of these cases possess.

Fox Business on credit card cases, robo-signing, and credit card lawsuits

Fox Business has an article on the problems of Robosigning in credit card lawsuits.  You can read the article here.

The article gives a general outline of the problems that exist in most third-party debt collection lawsuits brought by junk debt buyers.

California Attorney General sues JPMorgan Chase over credit card debt collection, robo-signing, sewer service, and more

The California Attorney General is also getting into the act.  She has sued JPMorgan Chase over their debt collection practices.  While the issues are different in JPMorgan Chase’s cases—because they’re probably the original creditor—it still outlines the abuses of the system and how debt collection firms file lawsuits without the required proof.

These things happen in Georgia.

I see them all the time.

Affidavits are not sufficient under Georgia law to prove a debt.  They can only be used to overcome hearsay objections to the business records—statements, contracts, cardmember agreements—that the Plaintiffs try to introduce.  And even then, those affidavits must comply with O.C.G.A. § 24-9-902(11)’s notice requirements.

Experienced credit card lawsuit attorneys can help

If you’ve been sued over credit card debt, contact an experienced credit card lawsuit attorney.  An experienced credit card lawsuit attorney knows what to look for, how to quickly evaluate your case, and knows where the weaknesses exist.

So contact me today, or contact someone else.  But get representation!

After all, both of the above articles discuss how people are bullied by debt collectors in these lawsuits and do not have adequate legal representation.

If you hire an experienced credit card lawsuit attorney then you will have a better chance.  Period.

We can get cases dismissed in some cases, and we can negotiate down balances and payments in other cases.

No Comments by  /  May 10, 2013  /  Posted in: Credit Lawsuits in Georgia

Discovery in a Georgia credit card lawsuit

Credit card lawsuits in Georgia’s State and Superior Courts allow parties to ask each other questions, request documents, and even demand the other side admit or deny something specific.

This is called Discovery.

Discovery is also why defending a credit card case is more expensive in State or Superior court than it is in Magistrate court (which does not allow discovery).

In this post, I will briefly outline the three main discovery tools used in credit card lawsuits in Georgia.

These are:

  1. Requests for Admission
  2. Interrogatories
  3. Requests for the Production of Documents.

Discovery rules in Georgia credit card lawsuit generally

Discovery rules are covered in Georgia’s Civil Practice Act, O.C.G.§ 9-11-1 et seq.  (Free Georgia Code from LexisNexis.)

The specific code sections covering the three main types of discovery used in Georgia credit card lawsuits are as follows:

  1. Requests for admissions, O.C.G.A. § 9-11-36
  2. Interrogatories, O.C.G.A. § 9-11-33
  3. Requsts for the Production of Documents, O.C.G.A. § 9-11-34

Discovery deadlines

You must respond to discovery requests within 30 days of when they were mailed to you.  You can find out this date from the Certificate of Service attached to the discovery.

If discovery is served on your with the Summons and Complaint, then you have 45 days to respond.

You can ask the other side for an extension of the deadline for responding.  I recommend you get this in writing.  I also recommend you grant an extension on the other side if you send your own discovery.  It’s common practice and it is the polite thing to do.  (Take the high ground, no matter how angry you are with the other side!)  However, do not allow more than 30 days of an extension—and don’t expect more yourself.

Penalties for not responding to discovery

Responding to discovery within this deadline is important.  Failure to do so can result in a motion to compel, attorney fees being awarded to the other side, or even having your Answer struck.

Before a motion to compel can be filed the other side must comply with Rule 6.4 of the Uniform Rules of Superior Court.  This rules says both sides must make a good faith effort to resolve any discovery conflicts before filing a Motion to Compel.  This is usually done by sending a letter, typically called a 6.4 Letter.

Requests for admissions have their own penalty, and it is harsh.  We will discuss it more in the requests for admissions section below.

Requests for Admissions in Georgia credit card lawsuits

Requests for admissions ask the other side to admit or deny specific statements.  This is kind of like how Answers work.  In fact, I have seen some requests for admissions which are almost exact copies of the Complaint.

You can read more at O.C.G.A. § 9-11-36.

To respond, simply state either “Admit” or “Deny” for each numbered paragraph.  You can qualify this or explain your response, but it is not required.

BE CAREFUL, however.  Once you Admit something, it can be used against you.  The only way to change your answer is to file a “Motion to Withdraw Admissions.”  These can be complicated.

So make sure you respond in a way that (1) you can support and (2) will help your case.  If you admit you owe the Plaintiff a debt, then you admitted you owe the Plaintiff something.  If you Admit the Plaintiff is the owner of the debt, then you have removed that argument from the case.

Which leads to the big risk when it comes to Requests for Admissions—not responding within 30 days!

Penalty for not responding to Requests for Admissions within 30 days

Didn’t respond to requests for admissions within 30 days of it being mailed or served?  Then you just ADMITTED each one.  Which, if you read above, you know is a bad thing for your case.

Why?

Because when a lawyer sends requests for admissions we look at each point we must prove in a case, or disprove, and we have a request for admission for each one.  So let’s review the five elements of a third party debt collection case.  Plaintiff must prove:

  1. Plaintiff is the real party in interest (was assigned the debt);
  2. The subject matter of the Contract;
  3. Consideration (use of the card, typically);
  4. Mutual assent to the terms of the Contract;
  5. Damages (the amount you owe).

So my requests for admissions would ask you to admit or deny that each of those 5 exist.  If you fail to respond, you’ve proven my case for me.

The only way to get out of this is a Motion to Withdraw Admissions.  For this, you really want an experienced credit card attorney.  I’ve done a number of these, and I’ve won far more than I’ve lost.  But these motions are not easy, and they’re not a given.

Use at trial or in Motions for Summary Judgment

Admissions can be used at trial or in motions for summary judgment.  They are the strongest proof of any of the three discovery methods.

Interrogatories in Georgia credit card lawsuits

An interrogatory is a question.  Interrogatories in discovery are questions you ask the other side.  You can ask the other side 50 questions.  This includes subquestions.  So if you have 50 questions, but each question has 3 subparts, that will be too many.  (And yes, we lawyers fight over what counts as a subquestion.)

You can learn more about it by reading O.C.G.A. § 9-11-33.

When you respond to interrogatories, you are supposed to “verify” them.  This requires you to make a statement swearing that the answers to the interrogatories are true and correct to the best of your knowledge.  This statement must be notarized.

Keep in mind that if you send your own interrogatories, then look to see if the other side verified them.  (They often don’t, and you have to demand that they do.)

Use at trial or in a Motion for Summary Judgment

Interrogatories can be used at trial or in a motion for summary judgment, but only if they are VERIFIED by the other side.  So get them verified.

Requests for the Production of Documents in Georgia credit card lawsuits

Requests for the production of documents (or just document requests, or RFPDs) are just what they say they are—requests that the other side provide documents.

You do not have to provide the documents if you do not have them, but you have to state why you cannot provide them.

There is no limit on the number of these requests which can be made, although too many will result in objections on the requests being overly burdensome.

Use at trial or during a Motion for summary Judgment

You can use the documents at trial or during a motion for summary judgment, but only if you have hearsay objections to the documents and they are relevant.  This will usually be the case, but if you have questions about this then you need to research Georgia’s evidence rules.

Other considerations when it comes to discovery

Not all questions or requests made in discovery must be answered.  The request might not lead to the discovery of relevant information.  It may be something protected by law.  It may be overly burdensome.

Also, remember that you can answer without having all the information and documents at the time.  You can also qualify your answers based on your current knowledge and provide updated answers later on.  (This is called continuing discovery.)

Conclusion

These are not the only discovery tools.  For example, you can also depose people.  (This costs money for the court reporter, the space to depose, the transcript, and the time to do it.)  You can also use non-discovery tools like Subpoena’s duces tecum (which is a subpoena to someone demanding they bring documents or reasons why those documents cannot be brought).

In the end, though, hiring an experienced credit card lawsuit attorney will go a long way to ensuring you handle the discovery process of a trial properly.

So speak to an experience credit card lawsuit attorney about your case.  Most of us are willing to enter a case at the discovery stage.

No Comments by  /  May 7, 2013  /  Posted in: Credit Lawsuits in Georgia
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Problems with credit card lawsuits in Georgia and the Nation—you are not alone!

Many clients and potential clients I speak with cannot believe the ordeal they are being put through in a Georgia credit card lawsuit.  They cannot believe the credit card companies, or third party debt collectors, would sue them without the paperwork they need.  To all of them I say—”You are not alone!”

Georgia credit card lawsuits are riddled with problems.  The Atlanta-Journal Constitution has a story “Credit card lawsuits replay foreclosure mess” which recounts the problems I often see in these lawsuits.

This is not a Georgia problem, however.  Credit card lawsuits are a problem across the nation, and the same shenanigans I see from attorneys in Georgia who sue my clients are playing out across the nation.  The New York Times Dealbook blog has an article on this as well: Problems Riddle Moves to Collect Credit Card Debt.

But I want to go to some quotes in the Atlanta-Journal Constitution Article specifically about Georgia credit card lawsuits.  In that article, David Kleber of Bridgers Peters & Kleber in Decatur, Georgia, is quoted saying “The vast majority of these cases are accurate.”  If this is the case, then why do so many of my cases get dismissed?  As soon as an attorney appears on the other side, or even if a Defendant files a decent pro se Answer, many firms move on to the next Defendant who didn’t answer in time and defaulted.

But there’s more from Mr. Kleber.  Mr. Kleber is paraphrased in the article as follows: “Kleber, who was not involved in that case, said the law is sketchy on what evidence is required, and different judges demand different levels of documentation.”  This is simply not true.  The law is not sketchy on what evidence is required.  Any lawyer who handles these cases regularly, Mr. Kleber included, can rattle off numerous cases which clearly state the law on what is required when (1) it is the original creditor bringing the suit and (2) when it is a third-party debt collector.  (And I have met and gone against Mr. Kleber and his firm, so I know they know these cases.)

I believe Mr. Kleber was not accurately referenced in that paraphrase, but he is directly quoted saying “[a]ttorneys have developed this ability to play with technicalities and loopholes in the law to avoid their clients’ liabilities.”  To that, good readers, I respond with “What is good for the goose is good for the gander.”

Debt collection firms rely on technicalities and loopholes all the time in finding Defendants liable for debts because (1) they didn’t respond to the lawsuit in time, (2) they didn’t respond to discovery requests properly, or (3) they didn’t respond to a motion for summary judgment properly.

Learn how to fight back through the courts and protect your rights in a Georgia credit card lawsuit!

This website is designed to help you learn how to protect your rights in a Georgia credit card lawsuit.  That’s my goal—to arm folks with the tools they need to fight back in the courts, and to avoid being taken advantage of by the lawyers bringing these lawsuits.

Sure, it helps with my marketing as well, I won’t lie.  At the end of the day, however, I hope to empower people with information.  In this post, I hope you understand you are not alone.

If you have questions about your own case, then please speak with an experienced credit card lawsuit attorney.  We can help you!

Good luck and godspeed to all of you!

No Comments by  /  March 1, 2013  /  Posted in: Credit Lawsuits in Georgia
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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.

No Comments by  /  February 26, 2013  /  Posted in: Credit Lawsuits in Georgia
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Who is suing me in a Georgia Credit Card Lawsuit?

Many times I get calls from potential clients who say they’re being sued in a credit card lawsuit.  When I ask who is suing them, they often name a law firm.  “It’s Hanna & Associates,” or “Greene & Cooper is suing me.”

While it is important for me to know what law firm is handling the lawsuit, the lawyers are not the Plaintiff.  To find out who the Plaintiff is, all you have to do is look at the “caption” of the Complaint or another pleading.  (The “caption” is the top part of a pleading—it identifies the parties, the court, and the case number.)

Below is an example caption from my example Credit Card Complaint.

Screen Shot 2013-02-14 at 1.45.22 PM

 

In this caption, it is pretty easy to see that the Plaintiff is THIRD PARTY DEBT COLLECTOR, LLC.  The Plaintiff is who is the other party, and it is that entity or person who is suing you.

In a real credit card lawsuit, you’re going to have a credit card company or third party debt collector listed as the Plaintiff.  For example, you may have CACH LLC listed as the Plaintiff.  Or Cavalry SPV I LLC.  Or Pride Acquisitions, LLC.  Or LVNV Funding LLC.  These are all examples of third party debt collectors.

If it is an original creditor, you may see Capital One Bank listed.  Or American Express.  Or Discover Bank.

Sometimes third party debt collectors will list from whom they claim they’ve purchased the debt.  For example, you may see something like “CAVALRY SPV I, LLC ASSIGNEE OF HSBC BANK NEVADA, N.A. FOR ORCHARD BANK.”  Instead of assignee, they may use the term “successor” or “successor in interest.”

Nevertheless, in the above examples it is not Orchard Bank or HSBC Bank who is suing you—it is Cavalry SPV I LLC, a third-party debt collector.

Conclusion

If you are getting sued by a debt collector in a Georgia credit card lawsuit, then you want to look at the caption of the case to quickly find out 1.) who is suing you and 2.) where the lawsuit was filed.  (Magistrate, State, or Superior Court.)

Once you find this out, when you speak with an experience credit card lawsuit attorney then it is likely that attorney has had cases against that Plaintiff.

Knowing the name of the law firm is helpful as well, and this can usually be found on the summons or at the end of the Complaint (where the signature line is located).

An experienced credit card lawsuit attorney has also probably dealt with that firm before.

With this information, an experienced credit card lawsuit attorney can give you an idea on how the firm and their client typically handle cases, and what that might mean for your case.

But BEWARE—no attorney, no matter how experienced or brilliant, can predict the future.  Past actions by a Plaintiff and law firm in other cases may not apply to your case.  Despite a lot of common similarities, every case is unique, and it is important to find an attorney that understands that.  (And it is important for you to understand that as well.)

So speak with an experienced credit card lawsuit attorney if you’ve been sued over a credit card debt. You may be surprised at what our fees are, and what kind of help we can provide.

No Comments by  /  February 18, 2013  /  Posted in: Credit Lawsuits in Georgia
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Debt collectors don’t need a signed contract to prove a credit card lawsuit

I often have clients ask me if a debt collector has to show a signed contract in a credit card lawsuit case.

“I don’t remember signing anything!” they tell me.  Then they ask “It’s not a contract if it wasn’t signed, right?”

Wrong. A contract can exist even if you don’t sign anything. In fact, courts can enforce oral agreements as contracts.

What is a contract?

The Second Restatement of Contracts defines a contract as “promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.”  RESTATEMENT (SECOND) OF CONTRACTS § 1 (1981).

This is a word, lawyerly way of saying that a contract is a promise which a court can enforce. Not all promises are contracts, however.

Georgia law defines a contract as “an agreement between two or more parties for the doing or not doing of some specified thing.” O.C.G.A. 13-1-1.

A contract must have (1) subject matter, (2) consideration, and (3) be formed by the mutual assent of all parties.  O.C.G.A. § 13-3-1; Cline v. Lee, 260 Ga. App. 164, 168, 581 S.E.2d 558, 562 (2003).

Subject matter is, well, the subject of the contract. A credit card contract is about the opening of a revolving credit card account with various terms and conditions placed on it.

Consideration is something of value given to the other side. It does not necessarily need to be money. A bank provides something of value if it loans you the money when you make a purchase.

Mutual assent means that both parties agreed to the same terms. This means both parties had to understand and agree to the terms of the contract. This is measured under an objective standard—in other words, if a reasonable person would have understood the terms then a party can be bound, even if the actual party did not.

Why Georgia courts do not require debt collectors to show a signed agreement or contract in credit card lawsuits

A debt collector will cite Davis v. Discover Bank,  277 Ga. App. 864, 627 S.E.2d 819 (2006), to support its claim that it does not need to produce a signed agreement. In Davis, the court held that a credit card was a written contract. Once a credit card makes a consumer an offer by providing them the card, the consumer accepts the offer by using the card. The court then states that it is the card itself which is the contract.

If this sounds odd it is because Davis does not actually stand for the proposition that a debt collector does not have to produce a contract in a credit card lawsuit. Davis actually dealt with the statute of limitations in credit card cases. (6 years because it is a written contract.)

However, the court’s analysis appears to imply that use of a card is sufficient to prove the existence of a contract. This is both right and wrong.

Then a written contract helps, but is not necessary

Debt collectors will have a much easier case proving the existence of a contract if the contract is in writing. Otherwise, the terms of the agreement come into questions. While a debt collector may not have to show a signed agreement, it should have to establish the terms of the agreement.

This can be done by providing the Credit Agreement which applied to the account. These are rarely “signed” contracts, but the actions of a consumer (defendant, debtor) in using a credit card can bind them to the terms just as if they had signed an agreement.

Conclusion

Contract cases like credit card lawsuits may seem easy to understand at first. However, when you learn more about them then you begin to see how nuanced and complicated they can be.

If a debt collector possesses a signed contract then it would certainly be easier to prove their case. However, it is not necessary. A debt collector may be able to establish the existence of a contract even without a signed document.

If you want to know more about what a debt collector needs, you should read my post on The Anatomy of Georgia Credit Card Lawsuits. You may also find my post on the burden of proof in a Georgia credit card lawsuit to be helpful.

 

No Comments by  /  August 6, 2012  /  Posted in: Credit Lawsuits in Georgia
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