Default hearings are hearings where most of the matters are in default. This means you failed to respond to the Complaint within 45 days of being served with the Summons and Complaint.
You still have options, however. Being in default means you have admitted liability. It does not mean the Plaintiff has proven damages. Otherwise there would be no hearing—only a motion for default.
This is an introduction into what to expect from a default hearing in magistrate court over a credit card lawsuit or debt lawsuit. Every court hearing is different. Every case is different.
This is not intended to replace hiring an attorney. This is not legal advice. This is general information about these types of hearings.
Consult with an experienced credit card attorney if you have any questions. (You may call my office for a free case evaluation.)
1. Finding Courtroom
Your hearing notice may have the courtroom number on it. It may not. There may only be one courtroom for magistrate court.
Once you pass the metal detectors, you can usually ask a deputy or someone else in the courthouse for directions to your courtroom.
Do not feel badly if it is not easy to find your courtroom. Some courthouses are veritable mazes. Those of us who do this often only know our ways around because, well, we do this often.
Don’t be afraid to ask for directions, however. And do not be late! The judge may be late (see below), but you don’t want to lose your case because you were late.
When I go to a new courthouse, I try and visit early on so I can get my bearings. If you’ve never been to your magistrate court, a quick visit prior to your hearing may help ease your mind when the day comes.
Once you do find the courtroom, you will probably have to wait. It is a rare judge that is right on time (not always the judge’s fault). Most judges run a bit late.
Just be aware you may need to wait. And don’t be surprise if you have to do so.
3. Calendar Call
At some point people will begin calling out names of cases. There are two ways this is generally done in my experience: (1) through the plaintiff’s attorneys, and (2) by the judge. This is “calling the calendar.”
The calendar, or docket, is the list of cases set for hearing in the courtroom you are in. The court will go through that list and check to make sure both sides are there.
If you begin hearing Plaintiff’s attorneys calling out names, or even hear your name, this may be what is going on. However, be aware that some times Plaintiff’s attorney’s are just hoping to discuss the case with you ahead of time.
Either way, let them know you’re here and, if you are going to discuss the case, read Section 4 and Section 5 below.
If the Judge calls the calendar, make sure you are listening for your name. When you hear it, stand up and state either your name or say “here” or “present” in a clear voice.
At the end of the calendar call, the Judge should ask if anyone did not hear their name. If you did not hear your name, stand at this time and state so. IF you have your case number, the Judge may ask you for it.
If the attorneys were calling the calendar, and not the Judge, then when it seems to be over stand and state “Judge, I did not hear my name.” Make sure you do it when the Judge is able and willing to listen for you. Make sure you have your case name and, if possible, case number ready.
4. Discussing in the hallway with the Plaintiff’s attorney
Once all the cases on the calendar are called, the Judge will direct both sides to go out and try to discuss the case and, if possible, settle it. Both sides must show each other whatever evidence they have. You must try and do this.
At this point, the Plaintiff’s attorneys will try and convince you to settle. This can be intimidating. They will likely bluff, and may even not tell you the whole truth (or outright lie).
Know your facts and your rights. I have articles on what their burden of proof is in these cases. I have articles on issues with assignment in third-party debt buyer cases. In Section 7 below I describe the trial process. I tell you what to look for in their evidence in Section 6 below.
Know what you can and cnanot do. Know what you are willing to do, and what you are not willing to do. Decide these BEFORE court. Then stick with your guns.
5. Settlement Options
If you do choose to settle and pay the Plaintiff some money, then there are three main ways to do so.
(a) Consent Judgments.
Consent judgments are the most popular way for Plaintiff’s attorneys to structure a settlement. They will have a form consent judgment with blanks they can fill out.
It is important to understand that this is a judgment. It will be recorded as a judgment. If you are looking to avoid a judgment on your record, this is not the settlement option you want (if you can avoid it).
(b) Consent Orders.
Consent Orders are also signed by the judge. In a consent order, you typically agree to pay a specific amount over a specific period of time. Judges often are reluctant to allow these types of deals to extend beyond 6 months or a year.
What happens if you do not make your required payments is that the Plaintiff can then seek a judgment against you.
Consent orders typically say you agree to the total amount, but if you pay a reduced amount on schedule then they will forgive the total. Once all the payments are made, the case will be dismissed with prejudice. (With prejudice means the case is done for good. Read more on what dismissals with prejudice mean here.)
If you are looking to avoid a judgment, a consent order may be a way to go.
(c) Payment and Dismissals with Prejudice.
Sometimes you can pay right then at court. If you have cash or a money order, then this will work well. If you need to pay by check, then the Plaintiff will want to make sure the check clears.
If you do pay at court, push to get a dismissal with prejudice. This ends the case. Try and avoid a consent judgment. A consent order may work, but is unncessary if you’re paying in cash or certified funds. However, if you’re paying by check, this may be a reasonable alternative.
6. Evidence (What to look for)
When you get a chance to look at the Plaintiff’s evidence, these are some things to look for:
(a) Account Statements
They will likely have at least one statement. Look at the statements to see if any statements have the following: (1) a purchase or (2) a payment. Also, look to make sure the statement is not just the charge-off statement. If it is just the charge-off statement, then it will have neither a payment nor a purchase on it. Plus, it may say that $0.00 is owed. This would mean the only statement they have shows you owe nothing.
(b) Assignment documents/Bills of Sale (for Third-party accounts)
Do not confuse this with an affidavit! They must have an actual Bill of Sale. Read through the Bill of Sale (usually a one-page document) and look for the following: (1) your account number; (2) any blank, blackened out, or “REDACTED” portions; (3) a reference to any other agreement; (4) a reference to a FINAL DATA FILE or Exhibit or Attachment which lists the allegedly transferred accounts.
(c) Card Member Agreements
To prove a contract, you must prove the terms of the contract. Even if you’ve admitted to a contract, to prove damages you must prove the terms of how the amounts are determined. (For example, how MUCH interest applied to the account and WHEN did it apply?)
They must provide a Card Member Agreement that applies to your account. Look for a date on any card member agreement. Compare that to the statements. Also compare it to when you think the account was opened.
Sometimes the agreements Plaintiffs provide are agreements adopted AFTER the account was closed or went into default. Sometimes the agreements are dated during when the account was allegedly active, BUT they are not the original.
To prove a continuity of terms, they should have the agreements from the beginning to the end of the account. (Although most judges ignore this.)
They may provide an affidavit. This is NOT admissible. Affidavits can only be used in very limtied circumstances. That circumstance is limited to authenticating documents under the Business Records Exception through what’s nicknamed “the 902 process.”
If they did not tell you they were going to do this ahead of time, they cannot use the 902 process. Further, even if they did, the affidavit itself SHOULD NOT be entered into evidence. Only the business records should be entered. (For example, the account statements, card member agreements, etc.)
If they did not notify you of their attempt to use the 902 process, and give you an opportunity to review the evidence BEFORE the court date, then they must have a witness. Only a witness can introduce the evidence.
Default trials are different than full trials. You have admitted to liability by failing to respond to the original case. Nevertheless, the Plaintiff must still prove damages.
(a) When will it happen?
Generally speaking, most trials will be heard at the very end of the hearing. This means if you did not settle during your discussion, you will have to wait for the Plaintiff’s attorney to speak with each of the other Defendants at the hearing before your trial is heard.
Occaisionally the court will hear things sooner. If you have a reason why you cannot wait around long, then you can ask the court to have the matter heard early based upon that reason. (For example, if you have child care needs, or are required to be somewhere else soon for another reason.) The court does not have to grant your request, and the attorneys for the other side may object, but you can always ask.
(b) What must be proven?
The Plaintiff must show how much you owe in damages (and how they were calculated). You have already admitted to liability by failing to file an Answer.
How much is owed can be shown by a combination of the statements, which show the principal and interest, as well as the Credit Card Agreement, which should show the initial interest rate (but often does not!).
(c) Opening Statements—What and How?
You can choose to make an opening statement. The Plaintiff typically goes first, followed by the Defendant. Most Plaintiff attorneys waive opening statements. You can waive yours as well. You can also request to make an opening statement.
(1) Why do an opening? Why not?
You can lay out the bones of your case in the opening statement. But don’t ARGUE! Just state what will be shown. This can give the judge a roadmap of issues to look for.
Many judges (and Plaintiff’s attorneys) will not like to hear an opening statement. So be aware you will be advised not to do it. In many cases, it is not necessary. However, if you think there is something especially egregious, or problematic, then an opening statement may help prepare the judge to look for it.
(2) How do I do it?
Tell the judge what he or she will hear, or will not hear. For example: “Judge, this is a contract case. But you won’t actually see the contract. Without that contract, you won’t be able to tell what the damages are. You won’t see the interest rate. You won’t see purchases on the account. At best, you’ll see a summary of an account but nothing to support how that summary was calculated.”
Review the discussion of what evidence to look for above. Once you do, come back and read these objections.
Anything written the Plaintiff is trying to enter into evidence is hearsay. The Plaintiff must meet an EXCEPTION to the hearsay rule. (There are many; if the Plaintiff’s attoreny is halfway decent he or she should know a lot.)
However, make the Plaintiff work. Object to hearsay, and see if the Plaintiff can come up with an exception.
ALSO, anything SAID outside of court is hearsay unless it was said by you. (You can testify to anythign said by the Plaintiff and its employees, too, when you testify.)
The only thing a witness can testify to is what they themselves saw or experienced.
(2) Lacks personal knowledge
If the witness did not do it, or see it, or experience it, then the witness lacks personal knowledge. If the witness says someone else told them this is the way it is done, then it is both HEARSAY and the witness LACKS PERSONAL KNOWLEDGE.
(3) Best Evidence Rule
If the Plaintiff tries to get the Card Member Agreement in, or the Bill of Sale, object under the BEST EVIDENCE RULE.
This rule basically says the BEST EVIDENCE of a written document is the written document itself. A copy will work as well, so long as it is a COMPLETE copy and is LEGIBLE. (If you can’t read the photocopy, then it is not the best evidence.)
This is ALSO important if the document is MISSING information or has information REDACTED. A redacted document is NOT a copy of the original. Further, if information is MISSING from the document, or REDACTED, then only the WRITTEN document which contains it can be used to prove it. A witness (or the Plaintiff’s attorney!) cannot tell the court what it says there!
(4) Business Records Exception
This is the big exception the Plaintiff will use to try and get into evidence all those docuemnts you were shown. This is found in O.C.G.A. § 24-8-803(6). (It is evidence rule 803(6) in shorthand.)
This rule says, basically, a custodian of the records being introduced must show the following four things apply to them:
(A) The record was made at or near the time of the occurence being recorded;
(B) The record was made by a person with PERSONAL KNOWLEDGE of the occurence AND a BUSINESS DUTY TO REPORT the occurrence;
(C) The record was kept in the course of regular business activity; and
(D) It was the regular practice of that business actiity to make the record.
A “record” means any document they are trying to introduce.
If their witness cannot hit all these points, or if their affidavit does not hit each of these points, then the business records exception CANNOT APPLY and the evidence is inadmissible.
Here is the entire rule copied verbatim:
‘(6) Records of regularly conducted activity. Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness and subject to the provisions of Chapter 7 of this title, a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902 or by any other statute permitting certification. The term “business” as used in this paragraph includes any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports shall be admissible under paragraph (8) of this Code section and shall not be admissible under this paragraph’
(e) Cross Examining Witnesses
You will have an opportunity to cross examine a witness. This is a brief guide on how to do so.
Ask leading questions. For example, do not say “Do you know the interest rate at the start of the account based on the documents you have in front of you?” and expect them to say “No.” The witness will do their best to answer your question with more than a yes or no.
Imply your answer with your question. Instead of the above, ask “You can’t figure out the interest rate at the start of this account based on the documents in front of you, can you?”
Even better, break them into smaller questions.
Q: “Exhibit X is the credit card agreement you claim controls this account, right?”
Q: “Exhibit X is dated in 2010, right?”
Q: “The account was opened before 2010, right?”
Q: “The account was closed before 2010, right?”
Q: “Exhibit X doesn’t have an interest rate listed, right?”
(f) Your own Testimony——Direct Examination
The same rules of evidence apply to you that apply to the Plaintiff. You can’t say what other folks told you prior to trial, unless those folks worked for the Plaintiff. (This is a non-hearsay exception found in O.C.G.A. § 24-8-801(d).)
You can speak from your own personal knowledge, however. This means, for example, you can discuss the following:
(a) Whether you recognize this account;
(b) Whether you remember this account;
(c) Whether the amount is correct or incorrect.
You are not limited to these issues. However, these issues should give you some idea and context as to what you can discuss.
(g) Closing Argument—Concluding your case!
Closing argument is where you get to actually argue what the evidence has shown. The best way to do this is to sum up your position. Think back to the section on openings above.
A closing might look something like this (although it will vary depending on the specific issues and evidence in your case):
“Judge, you have not seen the original credit card agreement. We don’t know what the original terms are. We can only know that through the best evidence of them—the original credit card agreement. This means we don’t know what the interest rate was. How late fees were supposed to be calculated. When rates or fees could be charged. We don’t know how to calculated the amount, and we only have one statement showing an actual purchase on the account. We cannot know what is owed based on the evidence present by Plaintiff.”
DO NOT READ THIS VERBATIM! This closing will not fit your case—-every case is different and unique! However, it should give you some idea of the issues to touch on.
8. What happens next?
After the hearing, what happens next? The three most common outcomes are (1) Dismissals without Prejudice; (2) Dismissal with Prejudice, and (3) Judgments.
(a) Dismissals Without Prejudice
This is a dismissal by Plaintiff of the case without prejudice to refiling. In other words, the Plaintiff can refile the lawsuit. (Only once more.) It does not need to be refiled in Magistrate Court—-they could refile it in State or Superior Court, which can be more expensive and more complicated to defend.
(b) Dismissals With Prejudice
This is a dismissal by Plaintiff with prejudice to refiling. In other words, the case is done. No one can refile the lawsuit. Even if they did sell the debt to someone else, that other party could not collect on it. (And trying to do so would be a violation of the FDCPA.)
A judgment means you owe the other side some amount of money. The court can’t magically take the money from your bank account or pocket and give it to the Plaintiff. The Plaintiff will have to try and collect it from you.
This means garnishments on bank accounts, garnishments on employment accounts, liens (also called Writs of Fieri Facias, or a Fi Fa), and levies (uncommon). The most common method of collecting are the two types of garnishments. However, this takes the Plaintiff’s time and money.
Plaintiffs are usually willing to work out payment schedules because it is cheaper than garnishments. If you go this route, try and have all interest SUSPENDED during your repayment.
Either party may ask for a continuance. Some courts allow these. Some do not. You are more likely to get a continuance if both sides agree to it. Also, you are more likely to get one if you have a good reason to seek one.
If you want a continuance, then ask. If the other side wants a continuance, you can agree to it. It will give you more time to handle the case. If you do not want a continuance granted, then you can object. (So can they.)
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