Setting Aside a Default Judgment

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.);