The Anatomy of Georgia Credit Card Lawsuits
Does the Plaintiff own the debt?Plaintiffs have the burden of proving they have a right to bring the lawsuit against you. This means they must show they actually own the debt upon which they're suing.
This is not a problem if the credit card company is the one suing you. However, if it is a debt collection agency, and they have purchased the debt from a credit card company, then they must show the chain of assignment from the credit card company to the party bringing the lawsuit.
Chains of assignment are, essentially, title chains. They show from which owner sold the debt to a new owner, all the way down the line to whoever is now suing you. The chain of assignment must also be clear enough to identify the loan that is the subject of the lawsuit.
Finally, Georgia law requires chains of assign to be in writing. Further, Georgia's best evidence rule requires the original assignment documents to be presented as evidence. This is a potential stumbling block for debt collectors who keep bad records.
Was the lawsuit filed within the statute of limitations?Credit card debts have a six-year statute of limitations in Georgia. O.C.G.A. ? 9-3-24; Phoenix Recovery Group, Inc. v. Mehta, 663 S.E.2d 290, 291-92 (Ga. Ct. App. 2008). This six-year period does not begin from when the credit card was opened--it begins when the credit card went into default. Even after a credit card goes into default, if the account holder makes partial payments on the account the six-year count must begin again. So while it might at first seem simple to calculate when a credit card is beyond a six-year statute of limitation, it's not as easy as it first seems and will depend on the specific facts of a case.
Does the lawsuit make a prima facie case for breach of contract?Plaintiffs must prove a prima facie case in order to win a lawsuit. Prima facie is latin for "at first face" or "at first look." In other words, does this claim make sense at first look?
Credit card lawsuits are breach of contract cases. Plaintiffs must show three things to make a prima facie case for breach of contract: (1) the subject matter of the contract, (2) consideration, and (3) mutual assent by all parties to the contract terms. Failure to prove any one of these three things is failure to prove a contract exists.
One way credit card companies prove these elements is to show the defendant used the card and therefore benefitted from the account. This shows the subject matter of the account (a credit account), consideration (the loaning of money by the credit card company; the use of that loaned money by the defendant), and mutual assent (the defendant used the money, the credit card company lent it).