ga-consumer-debt · diff
v0.1.0 to v0.1.0
443 added, 26 removed. Audit A to A.
---
name: ga-consumer-debt
description: >
- Subject-matter bundle for Georgia consumer-debt defense: FDCPA, Regulation F, the Georgia consumer-protection statute, the Georgia collection-agency regime (if any), chain of title, and synthetic example filings.
+ Use this skill for Georgia consumer-debt defense — debt-buyer
+ suits, original-creditor collection cases, and any matter turning
+ on FDCPA, Regulation F, FCRA, TILA, the Georgia Fair Business
+ Practices Act (FBPA), chain-of-title / standing, or the
+ business-records foundation a debt buyer needs to win. Triggers:
+ "Midland Credit sued me in Georgia", "Georgia debt buyer lawsuit",
+ "Portfolio Recovery sued me Georgia", "LVNV Funding Georgia",
+ "I was sued on a credit card in Georgia", "answer a State Court
+ debt complaint", "Magistrate Court debt lawsuit Georgia", "FBPA",
+ "credit card statute of limitations Georgia", "time-barred debt
+ Georgia", "chain of title Georgia debt", "set aside default
+ judgment debt Georgia", "FDCPA counterclaim Georgia". Subject-
+ matter bundle covering FDCPA / Reg F / FBPA substantive law,
+ chain-of-title and standing doctrine, the debt-buyer business-
+ records battleground, affirmative defenses, discovery banks, and
+ counterclaims for Georgia debt-defense litigation.
version: 0.1.0
---
# Georgia Consumer-Debt Defense
- > **TODO**: Author substantive content. This is a scaffolded
- > stub. Research the Georgia analog from authoritative sources
- > before writing — do not search-and-replace from another
- > state plugin.
+ This skill is the **subject-matter bundle** for Georgia
+ consumer-debt litigation: debt-buyer cases, original-creditor
+ collection actions, and any matter turning on FDCPA / Reg F /
+ FCRA / TILA and the Georgia Fair Business Practices Act (FBPA).
+ It assumes the procedural framework is already in place via the
+ matter-neutral skills. This skill adds the substantive law,
+ the standing and evidence doctrine, a fact-pattern triage, an
+ affirmative-defenses catalog, discovery banks, and the
+ counterclaim package.
+
> **NOT LEGAL ADVICE.** This subject-matter bundle describes
> a procedural and substantive framework for Georgia cases in
> this area, not legal advice and not strategic advice for
> any specific case. Outcomes are fact-specific; the choice
> of defenses, claims, motions, and discovery belongs to the
> litigant (and any counsel the litigant retains). Verify
> every rule, deadline, and citation against current law
> before filing.
- ## State context
+ ## The Georgia consumer-debt landscape
- - **State**: Georgia
- - **Format rule**: O.C.G.A. § 9-11-10 + Uniform Superior Court Rules
- - **Civil rules**: Georgia Civil Practice Act (O.C.G.A. Title 9, Ch. 11)
- - **Evidence rules**: Georgia Evidence Code (O.C.G.A. Title 24)
- - **Style manual**: Georgia appellate citation (Bluebook-based)
+ Georgia's framework is **federal-first**. Unlike many states,
+ Georgia has **no mini-FDCPA** and the Georgia Department of
+ Banking and Finance does **not** license or regulate third-party
+ debt collectors or debt buyers. There is therefore **no
+ "unlicensed-collector" defense** of the kind that exists in
+ licensing states. The practical consequence is that the
+ **federal statutes are the primary tools**, and the Georgia Fair
+ Business Practices Act is the state-law overlay.
- ## What to author
+ ### Federal layer — the primary tools
- 1. Description: replace the placeholder with realistic trigger
- phrases for how a Georgia pro se filer would ask about this
- 2. Body: substantive content matching the role
- 3. Composition notes: which other ga- skills this layers
- with
- 4. References: the supporting `references/*.md` files
+ - **FDCPA** (Fair Debt Collection Practices Act), 15 U.S.C.
+ § 1692 et seq. — applies to **debt collectors** (including
+ most debt buyers) collecting **consumer** debt; does not, as
+ a general matter, reach original creditors collecting their
+ own debt (15 U.S.C. § 1692a(6)).
+ - **Regulation F** (12 C.F.R. pt. 1006), effective November 30,
+ 2021 — the CFPB's FDCPA-implementing regulation; codifies the
+ call-frequency safe harbor, the model validation notice, and
+ the time-barred-debt litigation prohibition.
+ - **FCRA** (Fair Credit Reporting Act), 15 U.S.C. § 1681 et seq.
+ — furnisher and credit-reporting obligations; identity-theft
+ blocks.
+ - **TILA** (Truth in Lending Act), 15 U.S.C. § 1601 et seq. —
+ disclosure obligations on the underlying credit account.
- ## References to author
+ ### Georgia state layer
- - Research the Georgia analog from authoritative sources
- before authoring; do NOT search-and-replace from another
- state plugin
+ - **Georgia Fair Business Practices Act (FBPA)**, O.C.G.A.
+ § 10-1-390 et seq. — the state-law vehicle for collection
+ misconduct, since Georgia has no mini-FDCPA. See the dedicated
+ section below.
+ - **Installment Loan Act** (the Georgia Industrial Loan Act),
+ O.C.G.A. Title 7, Ch. 3 (§ 7-3-1 et seq.) — the **only**
+ licensing regime relevant here, and it reaches only **small-
+ loan lenders** making consumer loans at or below a statutory
+ threshold (currently **$3,000** — verify the exact figure
+ against current law, as the cap is amended from time to time),
+ **not** third-party collectors or debt buyers. A loan made by
+ an unlicensed lender subject to the Act is **void**, with
+ forfeiture of principal, interest, and charges under O.C.G.A.
+ § 7-3-29. This matters only where the original obligation is a
+ small-dollar installment loan from a lender that should have
+ been licensed — it is not a general debt-buyer defense.
- ## Cross-references
+ > **No collector licensing in Georgia.** Do not draft a defense
+ > or counterclaim premised on the debt buyer or collection
+ > agency being "unlicensed." Georgia does not license them.
+ > Run the case on the FDCPA, Reg F, the FBPA, standing/chain of
+ > title, the statute of limitations, and the business-records
+ > foundation instead.
- - `ga-statewide-format` for format baseline
- - `ga-fulton` / `ga-cobb` / `ga-county-courts` for venue
- - `ga-pro-se` for pro se conventions
+ ## The FBPA — Georgia's state-law overlay
+
+ The **Fair Business Practices Act**, O.C.G.A. § 10-1-390 et seq.
+ (Title 10, Ch. 1, Art. 15, Part 2), prohibits unfair and
+ deceptive acts and practices in consumer transactions. Because
+ Georgia has no mini-FDCPA, the FBPA is the principal **state**
+ vehicle for FDCPA-type collection misconduct.
+
+ - **Purpose** — O.C.G.A. § 10-1-391.
+ - **Prohibition** — O.C.G.A. § 10-1-393(a): "unfair or deceptive
+ acts or practices in the conduct of consumer transactions and
+ consumer acts or practices in trade or commerce." FDCPA-type
+ abuses (false representations about the amount or legal status
+ of a debt, threats, deceptive dunning) can violate this
+ section.
+ - **Consumer-marketplace limit** — the FBPA reaches conduct in
+ the **consumer marketplace**; private, isolated, non-merchant
+ transactions fall outside the Act. The collection of a
+ consumer credit-card or consumer-loan debt is squarely within
+ the marketplace the Act protects.
+
+ ### The mandatory 30-day pre-suit written demand — flag this quirk
+
+ > **FBPA QUIRK — the § 10-1-399(b) demand is a statutory
+ > prerequisite.** Before filing an FBPA claim, the claimant must
+ > serve a **written demand for relief** on the prospective
+ > respondent **at least 30 days before** filing suit, identifying
+ > the claimant, reasonably describing the unfair/deceptive act,
+ > and the injury suffered (O.C.G.A. § 10-1-399(b)). Plan for this
+ > when raising the FBPA as a counterclaim — see the counterclaim
+ > section. Two further points: (1) the 30-day demand does **not
+ > toll** the FBPA limitations period (O.C.G.A. § 10-1-401), so
+ > the demand and the 2-year clock must be tracked separately; and
+ > (2) the demand requirement does not apply where the respondent
+ > has no place of business or assets in Georgia. A respondent's
+ > good-faith settlement tender in response to the demand can cap
+ > the recovery, so document the demand and any response carefully.
+
+ ### FBPA remedies
+
+ - **Actual damages** — O.C.G.A. § 10-1-399(a).
+ - **Treble damages** — O.C.G.A. § 10-1-399(c): available for an
+ **intentional** violation.
+ - **Attorney's fees and expenses of litigation** — O.C.G.A.
+ § 10-1-399(d).
+ - **Injunctive relief** — O.C.G.A. § 10-1-399(a).
+ - **Statute of limitations** — O.C.G.A. § 10-1-401: **2 years**.
+
+ See `references/ga-fbpa.md` for the annotated statute and
+ `references/ga-installment-loan-act.md` for the small-loan regime.
+
+ ## Fact-pattern triage
+
+ Most Georgia consumer-debt cases fall into one of these patterns.
+ The defense strategy varies by pattern. Deeper analysis lives in
+ the references.
+
+ ### Pattern 1 — Stale credit-card debt by an out-of-state debt buyer
+
+ A debt buyer (e.g., Midland Credit Management, Portfolio Recovery
+ Associates, Cavalry SPV, LVNV Funding) sues a Georgia consumer —
+ typically in **State Court** or, for smaller amounts, **Magistrate
+ Court** — on a charged-off credit-card account where the last
+ payment was years ago.
+
+ - **SOL** — credit-card debt is governed by the **6-year
+ written-contract** limitation, O.C.G.A. § 9-3-24 (see the
+ counterintuitive-SOL section below). Verify the date of last
+ payment / default; the clock runs from there.
+ - **Standing / chain of title** — the debt was originated by the
+ bank, sold (often through several buyers), and the plaintiff is
+ the assignee. Each transfer must be proven. Demand the bill of
+ sale, assignment, and **account-level data** tying the
+ plaintiff to *this* account (see *Nyankojo*, below).
+ - **No licensing defense** — do not plead unlicensed collection;
+ Georgia does not license debt buyers.
+
+ ### Pattern 2 — Debt buyer suing on the original creditor's agreement
+
+ Same as Pattern 1, but the plaintiff attaches the **original
+ creditor's cardmember agreement** to the complaint to establish a
+ written contract (and thus the 6-year SOL).
+
+ - **Standing** — the cardmember agreement is the *original
+ creditor's* contract. Attaching it does not, by itself, prove
+ the plaintiff **owns** this account. The plaintiff still must
+ prove an unbroken assignment chain.
+ - **Evidence** — the original creditor's records are the
+ plaintiff's, only by way of a hearsay exception; the plaintiff's
+ own custodian generally cannot lay the foundation for records it
+ did not create (see the evidence section).
+
+ ### Pattern 3 — Collection lawsuit on a medical debt
+
+ A collection agency or buyer sues on a medical bill.
+
+ - **Itemization / billing accuracy** — medical bills frequently
+ contain errors; demand an itemized statement and challenge the
+ amount.
+ - **Credit-reporting limits** — under Reg V / NCAP rules, much
+ medical debt is restricted from appearing on consumer credit
+ reports; FCRA furnisher accuracy obligations apply.
+ - **Foundation** — the same business-records and chain-of-title
+ problems apply; medical providers' records used by a buyer are
+ third-party records requiring proper foundation.
+
+ ### Pattern 4 — Default judgment already entered
+
+ The consumer was sued, often never properly served, and a default
+ judgment was entered — frequently discovered only when a
+ garnishment lands.
+
+ - **Open default as of right** — O.C.G.A. § 9-11-55(a): a default
+ may be opened **as a matter of right within 15 days** of the
+ default on payment of costs.
+ - **After 15 days** — O.C.G.A. § 9-11-55(b): the default may be
+ opened only on a showing of **providential cause, excusable
+ neglect, or a proper case**, plus the four statutory
+ conditions (motion under oath, a meritorious defense, an offer
+ to plead instanter, and announcing ready to proceed). The
+ "proper case" prong does not require a reasonable explanation
+ for the default — *Bowen v. Savoy*, 308 Ga. 204, 839 S.E.2d 546
+ (2020) (verify pincite).
+ - **Meritorious defense** — the chain-of-title, SOL, and
+ foundation defenses below supply the meritorious-defense
+ showing.
+ - Coordinate with `ga-post-judgment` for the set-aside motion and
+ any garnishment traverse.
+
+ ### Pattern 5 — FDCPA / FBPA counterclaim
+
+ The consumer was sued and the collector's conduct (false
+ representations about the amount or legal status of the debt,
+ suing on time-barred debt, harassment, validation failures)
+ supports affirmative claims.
+
+ - **FDCPA counterclaim** — 1-year SOL from the violation
+ (15 U.S.C. § 1692k(d)); statutory damages up to $1,000 plus
+ actual damages and mandatory fees.
+ - **FBPA counterclaim** — 2-year SOL (O.C.G.A. § 10-1-401), but
+ **serve the § 10-1-399(b) 30-day written demand first**; treble
+ damages for intentional violations and attorney's fees on top
+ of actual damages.
+
+ ## Statute of limitations — the counterintuitive part
+
+ > **Credit-card debt in Georgia is a 6-year, written-contract
+ > matter — not a 4-year open account.** This surprises many pro
+ > se litigants. Because using the card constitutes acceptance of
+ > the written cardmember agreement, a credit-card claim is a
+ > **written contract** governed by the **6-year** limitation of
+ > **O.C.G.A. § 9-3-24** — *Hill v. American Express*, 289 Ga.
+ > App. 576, 657 S.E.2d 547 (2008), and *Phoenix Recovery Group
+ > v. Mehta* (Ga. App. 2008). (Secondary sources conflate the
+ > reporter pincites; verify against the official report.)
+
+ | Claim | SOL | Authority |
+ |---|---|---|
+ | Written / simple contract (incl. credit card) | 6 years | O.C.G.A. § 9-3-24 |
+ | Open account / oral / implied contract | 4 years | O.C.G.A. § 9-3-25 |
+ | Catch-all contract | 4 years | O.C.G.A. § 9-3-26 |
+ | FDCPA claim | 1 year (from violation) | 15 U.S.C. § 1692k(d) |
+ | FBPA claim | 2 years | O.C.G.A. § 10-1-401 |
+
+ **The 4-year escape hatch is also a proof defect.** The 4-year
+ open-account limitation (O.C.G.A. § 9-3-25) applies only where
+ the plaintiff **cannot produce the written cardmember
+ agreement** and is therefore left pleading an open account or
+ account stated. When that happens, the same evidentiary gap that
+ shortens the SOL to 4 years is **also a foundation/proof defect**
+ — the plaintiff has no written contract to anchor the claim or to
+ prove its terms. Press both points together.
+
+ **Revival.** A new promise must be **in writing** to revive a
+ barred debt (O.C.G.A. § 9-3-110); a **part payment** entered on
+ written evidence of the debt operates as a new promise from which
+ the period runs anew (O.C.G.A. § 9-3-112). Debt buyers sometimes
+ solicit a small payment to restart the clock — scrutinize whether
+ any payment was unambiguously referable to *this* debt and
+ whether the writing requirements are met.
+
+ See `references/ga-statutes-of-limitations.md` for the full
+ analysis.
+
+ ## Standing and chain of title
+
+ A Georgia debt-buyer plaintiff must prove an **unbroken chain of
+ assignment** from the original creditor to itself. This is the
+ single most productive defense in a debt-buyer case.
+
+ - ***Nyankojo v. North Star Capital Acquisition***, 298 Ga. App.
+ 6, 679 S.E.2d 57 (2009) — the go-to authority. The Court of
+ Appeals reversed summary judgment because the plaintiff failed
+ to prove the **unbroken chain of assignment** of the account to
+ itself.
+ - ***Wirth v. CACH, LLC***, 300 Ga. App. 488, 685 S.E.2d 433
+ (2009) — account-stated / business-records foundation in the
+ debt-buyer setting.
+ - ***Rutledge v. Gemini Capital Group, LLC***, 327 Ga. App. 454,
+ 757 S.E.2d 893 (2014) — same battleground; proof of ownership
+ and foundation.
+
+ What the plaintiff must actually produce for each link:
+
+ - **Bill of sale** — the document evidencing each transfer.
+ - **Assignment** — specifically identifying the accounts
+ transferred.
+ - **Account-level data** — records tying *this consumer's*
+ account (by account number and balance) to the bulk transfer.
+
+ A bill of sale that references "an attached schedule" without the
+ schedule, or that recites "all accounts sold on [date]" without
+ account-level data tying it to the defendant, does not prove
+ ownership of the specific account.
+
+ See `references/chain-of-title.md` for the doctrine and
+ `references/key-cases.md` for full holdings.
+
+ ## Evidence — the debt-buyer business-records battleground
+
+ Georgia's Evidence Code (Title 24, modeled on the Federal Rules
+ of Evidence, effective January 1, 2013) makes the **business-
+ records foundation** the decisive evidentiary fight.
+
+ - **O.C.G.A. § 24-8-803(6)** — the business-records hearsay
+ exception. The record must be (A) made at or near the time,
+ (B) by or from a person with personal knowledge **and a
+ business duty** to report, (C) kept in the course of a
+ regularly conducted activity, and (D) made as a regular
+ practice — shown through a custodian or other qualified witness
+ **or** by certification under § 24-9-902(11)/(12); the court
+ may exclude where the source or circumstances indicate a **lack
+ of trustworthiness**.
+ - **O.C.G.A. § 24-9-902(11)** — self-authentication of certified
+ domestic records of a regularly conducted activity (custodian
+ certification, with written notice to adverse parties and an
+ opportunity to inspect). § 24-9-902(12) covers foreign records
+ under penalty of perjury.
+
+ The recurring debt-buyer problem: the plaintiff's custodian
+ attests to the **buyer's** records but tries to sweep in the
+ **original creditor's** records ("incorporated" or third-party
+ records). The contested issues are whether the original creditor's
+ records were made by someone with a **business duty to report**,
+ whether the buyer can speak to their trustworthiness at all, and
+ whether a conclusory custodian affidavit satisfies § 24-8-803(6).
+ Federal FRE 803(6) / 902(11) case law is persuasive on these
+ points.
+
+ See `references/evidence-debt-buyer.md` for objection language.
+
+ ## Affirmative defenses — Georgia debt-buyer answer
+
+ In the answer, plead all that apply (coordinate with
+ `ga-first-30-days`):
+
+ 1. **Failure to state a claim** — O.C.G.A. § 9-11-12(b)(6)
+ (pleading inadequate to allege ownership or account terms).
+ 2. **Statute of limitations** — O.C.G.A. § 9-3-24 / § 9-3-25
+ (raise the 4-year open-account bar in the alternative when no
+ written agreement is produced).
+ 3. **Lack of standing** — plaintiff cannot prove ownership of
+ this specific account (chain of title).
+ 4. **Account stated** — no agreed accounting between *this*
+ plaintiff and the defendant.
+ 5. **Lack of privity** — no contract between plaintiff and
+ defendant.
+ 6. **Payment / accord and satisfaction.**
+ 7. **Identity theft** (if applicable) — coordinate FCRA blocks.
+ 8. **Discharge in bankruptcy** (if applicable).
+
+ See `references/affirmative-defenses.md` for the annotated
+ catalog.
+
+ ## Discovery strategy
+
+ Georgia **allows written interrogatories** — capped at **50,
+ including subparts** (O.C.G.A. § 9-11-33). Build the discovery
+ plan around the plaintiff's weak spots:
+
+ 1. **Requests for Admission** — lock in the elements: no written
+ contract produced, no proof of assignment, no account-level
+ data, plaintiff is not the original creditor.
+ 2. **Interrogatories** — chain of title (each transferor/
+ transferee and date), the custodian's basis of knowledge, and
+ account-level data, within the 50-count cap.
+ 3. **Requests for Production** — bills of sale, assignment
+ agreements and schedules, the original cardmember agreement,
+ periodic statements, and account-level / electronic records.
+ 4. **Meet-and-confer** — formal letter when responses are
+ deficient, then a motion to compel.
+
+ The full banks live in `references/rfa-debt-buyer.md`,
+ `references/interrogatories-debt-buyer.md`,
+ `references/rfp-debt-buyer.md`, and
+ `references/meet-and-confer-debt-buyer.md`. Compose with
+ `ga-discovery` for the procedural mechanics.
+
+ ## Counterclaim package
+
+ Where the facts support it, raise:
+
+ - **FDCPA** — federal claim; **1-year SOL from the violation**
+ (15 U.S.C. § 1692k(d)). Statutory damages up to $1,000 + actual
+ + mandatory fees (§ 1692k(a)(3)). Reg F supplies the
+ time-barred-debt-litigation theory.
+ - **FBPA** — state claim; **2-year SOL** (O.C.G.A. § 10-1-401).
+ **First serve the § 10-1-399(b) 30-day written demand** —
+ treble damages for intentional violations (§ 10-1-399(c)) and
+ attorney's fees (§ 10-1-399(d)).
+
+ Because the § 10-1-399(b) demand is a prerequisite and the
+ demand does **not** toll the 2-year clock, raise the FBPA
+ counterclaim only after the demand is served (or, if the demand
+ is sent contemporaneously, plan the pleading sequence so the
+ 30 days have run before the FBPA count is asserted). See
+ `references/fees-consumer-debt.md` for fee mechanics.
+
+ ## Composition
+
+ This subject-matter bundle composes with:
+
+ - **`ga-statewide-format`** — O.C.G.A. § 9-11-10 + Uniform
+ Superior Court Rules formatting baseline.
+ - **`ga-state-court`** — where most debt suits land.
+ - **`ga-magistrate`** — small-claims / lower-dollar debt suits.
+ - **`ga-first-30-days`** — answer, affirmative defenses, and
+ counterclaims.
+ - **`ga-discovery`** — discovery framework; layer the debt-buyer
+ banks on top (interrogatories allowed, 50-count cap).
+ - **`ga-draft-motion`** — motion drafting (e.g., to compel, for
+ summary judgment, to set aside).
+ - **`ga-draft-declaration`** — supporting declarations/affidavits.
+ - **`ga-draft-order`** — proposed orders.
+ - **`ga-post-judgment`** — set aside a default judgment;
+ garnishment traverse and exemptions.
+ - **`ga-deadlines`** — SOL and response-time computation.
+ - **`ga-fact-check`** — citation verification against Georgia
+ statutes and cases.
+ - **`ga-quality-check`** — pre-filing format and content QC.
+
+ ## References
+
+ - `references/fdcpa.md` — FDCPA § 1692 et seq. annotated
+ - `references/reg-f.md` — Regulation F (12 C.F.R. pt. 1006)
+ - `references/ga-fbpa.md` — Georgia Fair Business Practices Act
+ (O.C.G.A. § 10-1-390 et seq.), incl. the § 10-1-399(b) demand
+ - `references/ga-installment-loan-act.md` — Georgia Installment
+ Loan Act (O.C.G.A. Title 7, Ch. 3) small-loan regime
+ - `references/chain-of-title.md` — standing / assignment-chain
+ doctrine under Georgia law
+ - `references/evidence-debt-buyer.md` — O.C.G.A. § 24-8-803(6) /
+ § 24-9-902(11) business-records foundation
+ - `references/ga-statutes-of-limitations.md` — Georgia SOLs for
+ debt and consumer-protection claims
+ - `references/key-cases.md` — *Nyankojo*, *Wirth*, *Rutledge*,
+ *Hill*, *Phoenix Recovery*, *Bowen* and related decisions
+ - `references/affirmative-defenses.md` — annotated defense catalog
+ - `references/rfp-debt-buyer.md` — Requests for Production bank
+ - `references/rfa-debt-buyer.md` — Requests for Admission bank
+ - `references/interrogatories-debt-buyer.md` — interrogatory bank
+ (50-count cap, O.C.G.A. § 9-11-33)
+ - `references/meet-and-confer-debt-buyer.md` — M&C letter templates
+ - `references/fees-consumer-debt.md` — fee-shifting and damages in
+ Georgia debt-defense cases
+ - `references/online-sources-consumer-debt.md` — authoritative URLs
+ for Georgia debt-related research
+
+ **NOT LEGAL ADVICE.** Generated content is a drafting aid;
+ verify against current rules and case law before filing.