Legal Question in Credit and Debt Law in Georgia
I am in the state of Georgia. I was sued By a collection agency for non-payment of a credit card. However, I never missed a payment and the account was totally paid off when the supoena arrived! I had all my proof, answered all summons and discovery (default judgement prevented) Day of court, case was dismissed. I thought that I entered a countersuit at the time of my answer, but I did not say the word "countersuit " in this answer/countersuit. In my affirmative defenses I stated that the company was in violation to 10 federal laws ( numbered and ready to prove) and requested a judgement. I did not come out and say "Your honor this is a countersuit "The judge led me to believe this was not a countersuit (He had all info in front of him). Question: Can I now file a countersuit in superior court or did I miss my chance (It has been 2 weeks since court date)? I know the law allows me to sue them within a year, but a year from what ie the date the subpoena arrived, the date of court date? I would hate to get to court and find I did not file soon enough.
1 Answer from Attorneys
You should be proud of yourself for getting the lawsuit dismissed! Regarding your question, I really need to see the paperwork, however, I offer the following. The one year for the FDCPA violations begins to run, not from when you received the subpoena or summons and complaint or had the court date, but from the date on which the actual violation occurred. When was that? You allege 10 violations - you have to look at the date on which each violation occurred and bring suit within 1 year of that date.
Assuming that you are within the one year period on one or more violations, then yes, it sounds like you did not properly assert your counterclaim in the action brought by the collection agency. You should specifically aver the counter-claim under a separate heading or count. See OCGA 9-11-13.
Violations of the FDCPA are not affirmative defenses - affirmative defenses are things like you having already paid the debt. Ratther, they give rise to your separate claim against the collection agency for violating the law. If the counter-claim was "permissive" (see the above statute for a definition of permissive and compulsory - basically, the difference is that with "compulsory counterclaims," they MUST be brought at the time the initial claim is filed or else are lost. With "permissive counterclaims," they can be brought at the same time as the initial claim or by your own separate action), then you can bring a separate action for it.
I hope that I did not confuse you. Please contact me if you would like more specific information or to review your documents.
Rachel Lea Hunter
Attorney at Law
Admitted in GA, PA & NC
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