How to Answer a Debt Collection Lawsuit in Georgia
Being sued for debt is never fun. However, just because you’ve been sued does not mean that you will lose the case. You may be able to win or negotiate a favorable settlement that allows you to make a lump sum payment in an amount lower than the balance owed, or monthly payments within your budget.
The first thing you have to do is respond to the lawsuit by filing what’s called an “Answer.”
What is an Answer?
An Answer a responsive pleading to the lawsuit that tells the court how the defendant responds to the allegations contained in the lawsuit. When I refer to the “lawsuit” I’m talking about the document that is usually titled “Statement of Claim” or “Complaint.”
You have to respond with an Answer once you’ve been served with a lawsuit (i.e., a sheriff or private process server hands the lawsuit to you or someone of reasonable age who lives at your residence – note that there are additional ways for a plaintiff to serve the lawsuit but these are the two most common).
If you do not respond after you have been properly served, you will be in “default” and the plaintiff will be able to request that the court enter a “default judgment” against you. A default judgment means that plaintiff has won the case.
You have thirty (30) days from the date you are served to file an Answer with the court. If you miss this 30-day deadline, you get an extra 15 days to file your Answer, but you will have to pay court costs in order to do so (the amount depends on what county and what court the case was filed into). If you miss that 45-day deadline, you need to submit a motion to the court requesting that they open the default, but there is no guarantee that the court will open the default for you. It is best to make sure you file your Answer well in advance of the 30-day deadline.
It’s not hard to file an Answer, so just do it (or better yet, hire an attorney to do it for you).
What do I say in my Answer?
You must admit or deny each allegation contained in the lawsuit.
It really just depends on what is in the lawsuit. Some debt collectors will file lawsuits with numbered allegations that lay out the elements of their claim. Others will write a general Statement of Claim alleging that the defendant owes a certain amount of money to the plaintiff. You need to read the lawsuit carefully and make sure you respond to each allegation.
Here are your options for answering the allegations:
- Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. (This statement has the same effect as a denial.)
You can also admit a portion of the allegation and deny the rest of the allegation, but to do this you must specify what it is you are admitting, and that you deny only the remainder.
Whether you admit or deny an allegation should be based on the facts of your case. If you admit an allegation, then the plaintiff does not need to do anything to prove that allegation in court, you’ve already done their job for them. If you deny an allegation, the plaintiff will need to produce evidence in order to win their case.
I do not suggest that a defendant deny an allegation that they know to be true. Doing so could subject a defendant to paying the plaintiff’s attorney’s fees. However, if you are unsure whether an allegation is true, you can deny it or state that you are without knowledge or information sufficient to form a belief as to the truth of the allegation.
For example, if a plaintiff alleges that you owe them a certain amount of money, but you don’t know whether you actually owe that amount, then do not admit that you owe that amount.
What should I avoid saying in my Answer?
The court only wants you to know whether you admit or deny the allegations contained in the lawsuit. I have seen many Answers to debt collection lawsuits that contain statements similar to the following:
- “I couldn’t pay the debt because I got laid off and I had to decide choose between buying groceries or paying my credit card bill”
- “I want to pay, I will have the money by the end of the month and can make a payment then”
- “I can come to an agreement with the plaintiff to pay $45 a month”
Do not put statements like this in your Answer! The judge does not care why you didn’t pay or that you want to make it right. They just want to know whether you owe the money, who you owe the money to, and the amount of money you owe. Don’t try to appeal to the judge’s sympathy – they have to follow the law, they’re not allowed to let you off the hook just because you have a sob story.
When responding to the allegations, keep it short and to the point. Only admit, deny, or state that you are without knowledge or information sufficient to form a belief as to the truth of each allegation.
What are affirmative defenses?
These are defenses that, if you can prove them, will defeat the plaintiff’s lawsuit even if all the plaintiff can prove all of its allegations. However, you must put these affirmative defenses in your Answer. YOU have to determine whether these defenses apply to your case, the court will not do it for you.
These are the affirmative defenses in Georgia:
- accord and satisfaction
- arbitration and award
- discharge in bankruptcy
- failure of consideration
- injury by fellow servant
- res judicata
- statute of frauds
- statute of limitations
If you think that any of these affirmative defenses apply to your case, you should include them in your Answer. Some of these words are strange “legalese” so look them up if you don’t know what they mean. Don’t guess.
What is the statute of limitations on credit card debt in Georgia?
The statute of limitations defense is one of the best affirmative defenses. If the lawsuit is filed after the statute of limitations expires, then you can defeat the lawsuit (any you may have a valid counterclaim) even if you owe the money.
In Georgia, the statute of limitations on credit card debt is six years from the date of default (which is usually the first time you miss a minimum payment). Many debt collectors argue that the statute of limitations is six years from the date of your last payment, but I strongly disagree. It is actually six years from the date that you breached the credit card agreement (subject to some limited exceptions).
Are there any other defenses?
Yes. You should consider whether any of the following defenses apply to your case.
- lack of jurisdiction over the subject matter
- lack of jurisdiction over the person
- improper venue
- insufficiency of process
- insufficiency of service of process
- failure to state a claim upon which relief can be granted
- failure to join a party under O.C.G.A. § 9-11-19
If you think any of these apply to your case, it’s a good idea to include the defense(s) in your Answer.
Do I have a counterclaim?
You may have a counterclaim to a debt collection lawsuit under the Fair Debt Collection Practices Act, Fair Credit Reporting Act, Georgia Fair Business Practices Act, or some other statute or law.
If you reasonably believe that you have a valid counterclaim to the lawsuit, I strongly suggest that you contact an attorney. Most people have trouble determining whether they have a valid counterclaim or not.
The Fair Debt Collection Practices Act, for example, only applies to third-party debt collectors, not original creditors. Determining whether a party is a third-party debt collector is not always easy.
How do I file my Answer?
Once you’ve drafted your Answer, and you’ve made sure to respond to each and every allegation contained in the lawsuit, you’re ready to file it with the court. Filing procedures vary from county to county (and there are a lot of counties in Georgia – 159), so call the clerk of the court where the lawsuit was filed and ask them how to file an Answer.
Sometimes you can mail the Answer to the court, other times you must e-file it on the online filing system. You should always be able to take the Answer to the clerk’s office and file it in person.
Sign your Answer and take two (2) copies with you to the clerk’s office. Have the clerk file the original and request that they give you two “file-stamped” copies. Keep one for your records to prove that it was filed on time.
You need to take the other file-stamped Answer and “serve” it on the plaintiff’s attorney. You need to mail a copy to the address listed on the summons for the plaintiff’s attorney.
What happens next?
After you have filed your Answer, the court will set a hearing date. Some counties (including Fulton County), will schedule mandatory mediation. If so, you must attend the mediation and negotiate with the plaintiff’s attorney in good faith.
If the court does not schedule mediation, you can always call the plaintiff’s attorney and attempt to work out a reasonable settlement to avoid going to court. If you don’t resolve the case prior to the hearing, you should be prepared to go to court and defend yourself against the plaintiff’s claims.
Remember, the plaintiff must prove three things:
- you owe the debt
- they own the debt
- the correct amount of the debt
Good luck with your debt collection lawsuit. If you need any help, feel free to give us a call at 404-594-5130.