Setting Aside a Default Judgment

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If a creditor or debt collector has served you with a lawsuit and you do not file an answer within 45 days, you may be able to avoid a default judgment and have your day in court.

The following discussion summarizes Georgia’s policy of deciding cases based on the facts or “on the merits” rather than through default judgments.

Applicable Georgia Statutes

In Georgia, after service, the defendant typically has 30 days to respond to the complaint. If a defendant fails to file an answer within those 30 days, the case is deemed to be “in default.”

After those 30 days have passed, a defendant has an additional 15 days to automatically “open default,” without admitting to the plaintiff’s allegations, under O.C.G.A. § 9-11-55(a).

If a defendant still fails to respond after 45 days, then a defendant may still be able to “open default.” Along with paying court costs, filing an answer under oath, and stating a readiness to proceed to trial, the defendant must satisfy specific statutory requirements and preconditions under O.C.G.A. § 9-11-55(b):

“At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened [1] for providential cause preventing the filing of required pleadings or [2] for excusable neglect or [3] where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court.”

Case Law

Providential cause typically covers events over which a party or lawyer lacked control over, including the illness of a litigant, see Phillips v. Taber, 83 Ga. 565(1889), or his lead counsel, Printup v. Mitchell, 19 Ga. 586 (1856); the death of a party, see Dougherty v. Fogle, 48 Ga. 615 (1873); the absence of an attorney due to military service, see Dalton City Co. v. Dalton Mfg. Co., 33 Ga. 243 (1862); and acts of God, see Carhart v. Ross, 15 Ga. 186 (1854).

The term “excusable neglect” refers to a ‘reasonable excuse’ for failing to answer a complaint, which is different from willful disregard of the process of the court. Ga. Farm Bldgs., Inc. v. Willard, 170 Ga. App. 327, (1984).

The “proper” case ground allows the court to reach “out in every conceivable case where injustice might result if the default were not opened,” Axelroad v. Preston, 232 Ga. 836 (1974).

All three grounds require that the defendant’s failure to file a timely answer must not have resulted from willful or gross negligence. See Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400 (1984).

What does this mean for defendants?

Even after 45 days have elapsed since being served, litigants may be able to open default and proceed to the merits of the case.

So, if you did not timely respond to a complaint resulting from debt, you might still be able to avoid judgment.

About Diwan Law

Diwan Law is a law firm dedicated to vigorously representing our clients.

Diwan Law represents debt collection cases in the Magistrate, State, and Superior Courts of Georgia.

Diwan Law represents clients facing:

  • Debt buyer lawsuits (i.e. Midland Funding, Portfolio Recovery Associates, Asset Acceptance, Cavalry Portfolio Services, Unifund, etc.);
  • Credit Card lawsuits (i.e. American Express, Citibank, Suntrust, etc.);

ATTORNEY VS. DEBT SETTLEMENT COMPANY

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Suppose you are struggling to pay your debts. You may question whether you should hire a debt defense attorney or a debt settlement company to assist you in negotiating with the credit card company, debt collection attorney, or debt collector.

In almost all cases, it is best to avoid debt settlement companies.

Debt Settlement

Generally speaking, debt settlement means that a creditor has agreed to accept less than the amount you owe as full payment.

How Debt Settlement Companies Work

Debt settlement companies claim that they can negotiate with your creditors to settle your debts for pennies on the dollar.

If you are current on your credit card payments, they will tell you that the creditors will not negotiate the debt unless you stop making payments.

The settlement company will then tell the consumer to make these payments to them directly while they negotiate with the credit card company or debt collector.

These payments will go towards the debt settlement company’s monthly service fee, and the remainder will be set aside for future settlements of your debts.

The debt settlement company will only contact your creditors after you have enough—based on the company’s opinion—and offer each one a lump sum that is less than what you owe.

Why Settlement Companies Are Not the Best Solution

While debt settlement companies can certainly help you work out a payment plan with your creditors, they can also hurt you.

The main problem with debt settlement companies is that they often charge for their services upfront.

Here are the main downsides to using a debt settlement company:

Downside #1: Your Debt Continues to Increase

The debt relief company might not mention that the total amount you owe will increase once you stop making your payments, which will increase due to various added fees and interest charges.

Downside #2: The Credit Card Company or Debt Collector May Not Settle

The debt settlement company probably won’t tell you that your creditors don’t have to accept a lesser amount than it is owed to satisfy the debt or that many creditors will not agree to a settlement, if you are working with a debt settlement company.

Downside #3: Debt Settlement Fees Are Typically High

Going through a debt settlement company can be costly. These companies often charge a set-up fee, a monthly fee, and a percentage of each settled debt (say, 25%), and they might pay themselves before paying any of your creditors. Or, a debt relief company might disappear with your money.

Why are Debt Defense Lawyers better than Debt Settlement Companies?

Debt settlement lawyer has negotiation skills developed over years of experience dealing with creditors and extensive knowledge about debt collection laws.

A debt settlement attorney will discuss your options with you and decide if you should attempt to settle your debts or do something else, such as fighting the debt or filing for bankruptcy.

A debt defense attorney can represent you in court if you get sued by a credit card company or debt collector.

And, if a debt collector violates any consumer protection law, the consumer protection attorney can assert any claim you may have against the creditor.

Conclusion

Debt relief attorney services and debt settlement company services are both widely available in Georgia. However, an Atlanta debt relief attorney has a broad range of legal tools at their disposal.

Diwan Law works hard to provide positive results for its clients dealing with debt collection issues.

If you are dealing with debt collection issues, you need an experienced collection lawyer. Contact Diwan Law today at 404-635-6883.

A Guide to Consumer Fraud in Georgia

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As a consumer in Georgia, you have the legal right to truthful information about products and services you purchase or wish to purchase. When we make a purchase, we need to be able to trust the merchant is being truthful. But, when a business sells you something fraudulently, they need to be held accountable.  Consumer Fraud is often related to false promises or inaccurate claims made to consumers, as well as business practices that directly cheat consumers out of their money.

What is Consumer Fraud?

It is a practice designed to deceive consumers into purchasing a product or service.

Under the Georgia Fraud Statute [O.C.G.A § 51-6-2], fraud is defined as a willful misrepresentation of a material fact that is made to induce another to act, upon which such person acts to his injury.

Keep in mind that knowledge of the falsehood is an essential element of this tort.

But, a fraudulent or reckless representation of facts as true when they are not, is the same as knowledge of their falsehood.

Examples of Consumer Fraud

  • Shop at home and catalog sales
  • Foreign money and counterfeit check scams
  • Banks, lenders, and mortgage fees
  • Business opportunities and work from home
  • Advance fee loans and credit protection repair
  • Travel, Vacation, and Timeshare Plans
  • Credit Card Fraud
  • Life insurance plans
  • Car Dealership Fraud
  • Car Repair Fraud
  • Telephone and computer services

What are the signs of consumer fraud?

  • Unreliable and misleading information;
  • False or misleading promises;
  • Unethical, deceitful, or aggressive sales tactics;
  • Promises that cannot be kept;
  • Unsatisfactory products or services;
  • Lies or misrepresentations made to consumers;
  • Unusually high prices charged for services;
  • Unlicensed, unregistered, unsanctioned or unapproved products or services;
  • Illegal activity (unauthorized use, false advertising, tax evasion, unauthorized use of trade secrets, etc.);
  • Illegal or abusive business practices.

How does Diwan Law help people who have been a victim of consumer fraud?

For Individuals, Diwan Law is a firm uniquely positioned to help clients at all stages of the consumer fraud investigation, litigation, and resolution process.

We focus our attention on those who have been defrauded, their families, and loved ones. We encourage consumers to contact us immediately and seek legal recourse to help them restore their financial health.

Conclusion

If you believe that you have been a victim of consumer fraud, it is essential to hire a Consumer Fraud Lawyer who can handle your case from beginning to end.

If you have experienced any of the following, then you may have a consumer fraud claim:

  • Being lied to about the condition of a car or any other item before purchasing it;
  • Improperly billed for a product or service;
  • A merchant offering one product but deliver another [“bait and switch”];
  • Being sold an item as new, and later learned that this item was actually used;
  • Being lied to about the source of a product;
  • Being lied to about the certifications of a service provider;
  • A merchant offering a defective product;
  • Being lied to about the uses of a product.

Diwan Law is a consumer protection law firm with a reputation for excellence in handling fraud cases, both large and small. Contact the Georgia consumer attorneys of Diwan Law today at 404-635-6883 schedule your initial consultation with one of our experienced attorneys.

Few Consumers in Debt Lawsuits Have a Lawyer

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Why do so few consumers in debt collection lawsuits have a debt defense lawyer?

Unfortunately, the main reason is that many consumers choose to ignore the lawsuit because they do not think that they can succeed against the credit card company or debt collector.

Sadly, if a defendant does not participate in the litigation, the creditor wins the case by default.

But, multiple studies have found that consumers who did have a debt defense lawyer in a debt claim were more likely than those without representation to win their cases or reach a settlement.

Debt Collection Lawsuits

Many people think that creditors prefer to avoid lawsuits because it requires them to pay lawyers and incur litigation costs. This is not true.

Creditors routinely file lawsuits against consumers based on allegations of unreported and missed payments, overdue fees, or charges not authorized by the consumer.

If a defendant fails to respond to the court summons or does not appear in court, the judge may rule in the plaintiff’s favor and issue a default judgment that may result in a monetary award against the defendant.

Default Judgments Can Exact Heavy Tolls On Consumers

Debt collection lawsuits that end in default judgments can have lasting consequences for consumers’ economic stability.

Besides the principal amount, the court may also award court and lawyer’s fees to the plaintiff, which can amount to thousands of dollars.

Once a creditor has a monetary judgment, it can garnish the consumer’s bank account and wages.

Post Judgment Interest

Once the monetary judgment is entered, post-judgment interest starts to accrue.

Post-Judgment Interest is interest on a court judgment that a creditor can collect from the time the judgment is entered in the court clerk’s record until it is satisfied.

Consumers who find themselves paying post-judgment interest on default judgments can face an even deeper cycle of debt.

Why Should You Hire a Collection Defense Lawyer?

A debt collection defense attorney plays an integral role in court proceedings.

A collections defense attorney will assert all viable defenses, file the appropriate motions, and negotiate with creditors.

In the majority of cases, customers with an experienced collection defense lawyer will have a better outcome, such as winning their case.

Conclusion

If a creditor is suing you for any amount of money, contact Diwan Law, the credit card defense attorney, to discuss your legal options. Call Diwan Law, 404-635-6883, for a free consultation.

About Diwan Law

Diwan Law is passionate about getting our clients the best result possible.

Diwan Law handles debt collection cases in the Magistrate, State, and Superior Courts of Georgia.

Diwan Law represents clients facing:

  • Debt buyer lawsuits (i.e. Midland Funding, Portfolio Recovery Associates, Asset Acceptance, Cavalry Portfolio Services, Unifund, etc.);
  • Credit Card lawsuits (i.e. American Express, Citibank, Suntrust, etc.);
  • Suits stemming from automobile repossession deficiencies, apartment leases, and other contract-related matters;
  • Dormant judgment revival; and
  • Garnishment actions on bank accounts or wages.
Sandy Springs Traffic TIcket Attorney

Sandy Springs Traffic Ticket Attorney

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As a Sandy Springs Traffic Ticket Attorney, Diwan Law fights reckless driving tickets and all other traffic violations in Sandy Springs and the surrounding areas. Contact Diwan Law at 404-635-6883 today for a free consultation.

GEORGIA RECKLESS DRIVING

Georgia considers Reckless Driving a serious traffic violation. If convicted of reckless driving, the court may impose a sentence that includes a fine of up to $1,000.00, up to 12 months in jail, or both. A conviction for reckless driving will also add four points to your license.

Georgia code defines reckless driving is as “any person who drives any vehicle in reckless disregard for the safety of persons or property…” O.C.G.A.§40-6-390.

As for what the law considers “reckless” in terms of driving, there is a myriad of possibilities, but the major actions associated with reckless driving cases include:

  • Speeding
  • Driving too fast for conditions
  • Weaving through traffic
  • Driving on the shoulder or in the emergency lane
  • Failure to obey a traffic control device
  • Failure to yield
  • Tailgating
  • Following too close
  • Texting while driving
  • DUI (even if your blood alcohol content level is below the legal limit, you still could be charged with reckless driving).

Besides the points on your license, a reckless driving conviction will also cause your insurance premium to increase.

Reckless Driving tickets are considered part of your Georgia driving record. Insurance companies will check your driving record and use the information to help determine your chances of having an accident or making an insurance claim. If the insurance companies determine that you are a higher-risk driver, your insurance premium will increase.

As a Sandy Springs traffic ticket attorney, Diwan Law can usually handle your reckless driving case without you having to appear, which will save you precious time.

Contact Diwan Law at 404-635-6883 today for a free consultation with a traffic ticket lawyer.

What is Zombie Debt?

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Once a certain amount of time has elapsed, a debt collector, credit card company, or creditor can no longer file suit against you to collect on the debt, but you still have to worry about a collector trying to collect this zombie debt.

What is a Zombie Debt?

Zombie debt is old debt that is usually charged off as bad debt by the original creditor and later sold to a collection agency.

In many cases, zombie debt is legally unenforceable, meaning that, unlike your current creditors, zombie debt collectors cannot sue you to collect the debt.

But, there is no law against trying to collect the debt, and many consumers end up paying the debt.

How zombie debt works

Debt collectors cannot take you to court for zombie debts, but they may contact you to collect the debt.

The cost to buy expired debt is often low, so when consumers agree to repay their old debts, zombie-debt collectors can earn decent profits.

Debts that zombie-debt collectors try to collect

If you completed a Chapter 7 bankruptcy, your unsecured debts may be discharged, which means you are no longer obligated to pay these debts.

  • Time-barred debt

Except for federal student loans, most debts have a statute of limitations. This means after a certain amount of time has passed, a debt collector can no longer sue you to collect on the debt.

The statute of limitations on debt in Georgia usually ranges from four to six years.

  • Debt that is not yours

A debt collector mixes you up with another consumer, or someone could steal your identity and make fraudulent charges in your name.

Even though it is not your debt, the debt collector will try to collect from you.

How to protect yourself from zombie debt collectors

If a zombie debt collector continues to call you even though your debt is time-barred or the debt is not yours, consider taking one of the following approaches.

  1. Tell the debt collector to stop contacting you

Under the Fair Debt Collection Practices Act [the “FDCPA”], you have the right to tell a debt collector not to contact you.

If a zombie-debt collector violates the FDCPA by harassing or threatening to sue you, contact a consumer rights attorney immediately.

  1. Ask the zombie debt collector to validate the debt

If you are unsure whether a debt belongs to you, contact the creditor and ask for a validation notice. This notice should contain the amount of the debt, who the original creditor is, and when the debt was incurred. Compare this to your records.

If the debt is not yours or the amount is incorrect, send a dispute letter to the creditor and contact a consumer’s rights lawyer.

Contact an Atlanta Debt Defense Lawyer

A debt collection defense attorney has experience standing up against debt collection agencies. They can provide you with the legal representation you need when dealing with any debt collection issue.

The bottom line

If a debt collector contacts you about a debt that has expired, has already been paid off, or does not belong to you, you are not legally responsible for repaying it.

If you are dealing with any debt collection legal matter in Atlanta, GA, call the skilled consumer rights lawyer at Diwan Law, LLC. Call 404-635-6883 to schedule an initial consultation today.

Diwan Law is qualified to handle debt collection matters involving the following types of debt (not an exhaustive list):

  • Credit Card Debt
  • Department Store / Retail Debt
  • Car, Truck, Vehicle, Auto Loans
  • Boat and other Recreational Vehicle Loans
  • Home Loans
  • Personal Loans

No FDCPA Violation Exists If Offer Fails to Disclose Interest

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The U. S. Court of Appeals for the Second Circuit held that a debt collector did not violate the FDCPA by sending the consumer a settlement offer letter that did not disclose that his balance could increase due to interest and fees.

In Cortez v. Forster & Garbus, LLP, a creditor placed a consumer’s credit card debt with a debt collector for collection. After obtaining a default judgment, the debt collector sent several collection notices to the consumer.

One such notice provided the consumer various settlement options to satisfy the debt at a “substantial discount off the current balance due.” But, the settlement letter did not disclose that interest was continuing to accrue on the debt.

The consumer filed an action against the collection agency accusing it of violating the Fair Debt Collections Practices Act’s [the “FDCPA”] prohibition against false, deceptive, or misleading representations when collecting a debt, 15 U.S.C. § 1692e, for failing to disclose that interest was accruing on the account.

The Court ruled that, though a debt collector is required to disclose that the balance may increase due to interest and fees, the rule did not apply in this case because the settlement proposal clearly stated that acceptance of one of the options would satisfy the debt, and could not mislead the consumer.

The Cortez decision may limit some potential FDCPA lawsuits, but it does not close the door on all FDCPA lawsuits related to settlement offers.

If you believe that an abusive debt collector, creditor, or credit card company has violated your consumer rights, then Diwan Law can help you. Contact us today at 404-635-6883 to speak to an Atlanta consumer rights attorney.

Debt Collection Defense Attorney

What is a Debt Collection Defense Attorney?

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Atlanta Debt Collection Defense Lawyer

A debt collection defense attorney is the lawyer you turn to when your credit card company or a debt collector files a lawsuit against you for an unpaid balance.

While many people believe that they have to pay every penny claimed by the debt collector, thousands of lawsuits are successfully concluded, with the consumer paying little to nothing.

Our debt Atlanta defense collection lawyer will be your advocate, protecting your rights.

How a Debt Collection Defense Attorney Can Help

A debt collection defense attorney will defend you from the adverse effects of a credit card company or debt collector filing a lawsuit. Diwan Law is well versed in collection litigation and has the necessary knowledge and experience to stand by you in the fight against credit card companies or debt collectors.

Many people have no idea about the legal implications of dealing with debt collection companies because they are not educated about their rights. A lawsuit can easily cost you thousands of dollars, and if you are unaware of all your legal rights, you could lose thousands more in the end. This is why a debt collection defense attorney is essential.

Diwan Law will assert all viable defenses you may have, file the appropriate motions, and negotiate with the creditor.

What to Expect from a Debt Collection Defense Lawyer

Diwan Law works with people facing trouble with their credit card companies and other creditors. Diwan Law will provide advice about your rights and the law when dealing with a debt collection lawsuit.

Conclusion

Diwan Law is dedicated to representing consumers’ rights and works hard to get our clients the best result possible.

Diwan Law handles the defense of debt collection actions against consumers in the Magistrate, State, and Superior Courts of Georgia.

Diwan Law represents clients facing:

  • Debt buyer debt collection lawsuits (i.e. Midland Funding, Portfolio Recovery Associates, Asset Acceptance, Cavalry Portfolio Services, Unifund, etc.);
  • Original creditor debt collection lawsuits (i.e. American Express, Citibank, Suntrust, etc.);
  • Debt collection lawsuits arising from credit cards, automobile repossession deficiencies, apartment leases, and other contract-related matters;
  • Dormant judgment revival; and
  • Garnishment actions on bank accounts or wages.

Contact Diwan Law at 404-635-6883 for a free case evaluation.

What is a debt collector

What is a Debt Collector?

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What is a Debt Collector in Georgia?

A “debt collector,” as defined by the Fair Debt Collection Practices Act [“FDCPA”], is a person or a business that regularly collects debts owed to another. Still, this definition does not fully explain what a debt collector is.

Most first-party creditors [credit card company or bank] or lenders will try to collect debts themselves before resorting to writing it off. Typically, past-due accounts won’t be charged off until they’re 120 to 180 days late.

After a consumer defaults on a loan, the account is sent to a third-party debt collector or buyer [hereinafter referred to as “debt collector”]. The debt collector then attempts to collect on the debt, rather than the first-party creditor or lender to whom the debt is originally owed.

The collection agencies and attorneys who collect these debts as part of their regular course of business are considered debt collectors. Also included are businesses that buy past-due debts from creditors or other companies and then try to collect them.

The debt collection market is significant and affects many people. The Consumer Financial Protection Bureau [“CFPB”] states that around one-third of consumers with a credit bureau file reported contact from at least one debt collector.

The FDCPA is the main federal statute regulating the consumer debt collection market. The FDCPA prohibits debt collectors from engaging in certain types of behavior [such as misrepresentation or harassment] when seeking to collect debts from consumers and grants consumers the right to dispute or stop some communications about an alleged debt.

The Fair Debt Collection Practices Act covers personal, family, and household debts, including hospital bills, credit cards, and car loans.

If a debt collector is contacting you, you need to speak to a consumer’s rights lawyer.

Contact Diwan Law at 404-635-6883 for a free case evaluation.