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TJ, Esq.
TJ, Esq., Attorney
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Experience:  Licensed to Practice Law
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I filed a suit, pro se, to perfect a lien in superior court.

Customer Question

I filed a suit, pro se, to perfect a lien in superior court. Defendant's attorney filed a response 44 days after Defendant was served. The defendant's attorney filed an answer to my complaint but did not mention the late filing or claim any defenses relating to a default. He filed the answer to my complaint as if it was an on time response filing and paid the case filing fees at the time he filed the answer. Is the case still in default even though the attorney filed an answer to the complaint within the 15 day window and paid the filing fees but did not address the default by mentioning the default in the answer? The statute says that it is an "automatic default" if not answered in 30 days.
Submitted: 8 months ago.
Category: Legal
Expert:  TJ, Esq. replied 8 months ago.
Hello and thank you for the opportunity to assist you. My name is XXXXX XXXXX X will do my very best to answer your legal questions.

The defendant is technically in default. However, you must keep in mind that judges have discretion to allow late answers to complaints. Moreover, default judgments are disfavored by judges. Judges prefer cases to be decided based on the merits. Accordingly, it is my experience that judges will allow a late answer if the defendant has any semblance of a reasonable explanation, whether it's because he was trying to retain an attorney, or he didn't realize that he only had 30 days, or the attorney marked it down on his calendar incorrectly, etc.

That said, you can file a motion for default judgment and ask that the answer be ignored because it is late. The defendant can then respond with an explanation. If you do not file such a motion, then the judge will likely accept the answer as is and not award a default judgment.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied. Also, your positive feedback is greatly appreciated. Thank you for using our service!

If you would like to direct additional legal questions to me in the future, then please type "To TJ, Esq." in the subject line of your question.
Customer: replied 8 months ago.

As I read O.C.G.A. 9-11-55 it says the default may be opened by matter of right by filing such defenses within 15 days. It also says I am entitled to a verdict and default judgement if the default is not opened within 15 days. The statute says that the default is automatic. Defendant's answer is boiler plate defenses raised except for he challenged venue because my suit is not in the county where the defendant lives. He also asserted that I did not file my notice of commencement of the suit timely. We had a hearing and all his motions were denied which gave me a green light on everything I have filed so far over the past year and 3 months. My notice of lien is still in place and the suit was allowed to continue without a transfer of venue. I don't think the defendant's attorney complied totally with what the statute says must be done. He did pay the filing fees but did not address a default or anything pertaining to opening a default. I understand the judges options as they are given in O.C.G.A. 9-11-55(b). Here it says the defendant must ask and file along with other stipulations. Also the defendant has never challenged my lien over the 365 days of time prior to the suit being filed. My root question which I will try to rephrase a bit: does the filing of a late answer and paying fees constitute opening the default or is the defendant still technically in default since they did not raise the issue within the 15 day period to do so?

Expert:  TJ, Esq. replied 8 months ago.

Hello again.

Here is the summary of useful Georgia case law on the subject:

"XXXXX XXXXX served NorthPoint Group Holdings, LLC and Point Satellite, LLC (the "defaulting defendants"), among others, with his complaint for breach of contract, injunctive relief, and attorney fees. The defaulting defendants failed to file timely answers and then moved to open default after the expiration of the 15-day statutory grace period1 but before the entry of final judgment. The trial court denied the motion to open default and entered judgment in favor of Morris. On appeal, the defaulting defendants claim that the trial court erred (i) in concluding that this was not a proper case to open default and (ii) in awarding damages to Morris, notwithstanding the default. Finding that the trial court properly declined to open the default in light of the defaulting defendants' failure to provide a reasonable explanation for their failure to file a timely answer, and that the trial court correctly awarded liquidated damages, we affirm." Northpoint Group Holdings, LLC v. Morris, 685 S.E.2d 436, 300 Ga. App. 491 (Ga. App., 2009).

In that case, the court found that the defendant was still in default, and a default judgment was awarded. Moreover, it is also seems clear that a motion needs to be filed by the defendant. In your case, if no motion was filed, then the defendant should still be in default regardless of the answer.

Does that help?

Customer: replied 8 months ago.

This case lends a good deal of support to what I think is correct. However it does specifically say if they filed an answer within the 45 days or not. The statement that they did not file timely answers might suggest that they filed their answer past the statutory 30 days but not necessarily within the 45 days. This case seems to suggest that default is default unless you have a really good excuse and can convince the judge of it. I understand that this is a highly technical question unless you have been down this road before. This unfortunately is a very important one for my case. I also need to use discovery now, while I can, on the other hand. I do have some time to delay the filing if I choose to if the Defendant is truly still in default. Is it possible for you to consult another attorney in your network with the question? I can wait until tomorrow if need be.

Expert:  TJ, Esq. replied 8 months ago.

Hello again.

In Northpoint Group Holdings, LLC v. Morris, the defendant never filed an answer. Instead, the attorney filed the motion to open the default after the 45 day period. Unfortunately, I don't have enough room to paste the entire case, but here is a little more:

"[T]hey do not provide an explanation why, after being properly served, the defaulting defendants failed to file an answer. Thus, the trial court, in its words, was "left to guess" whether the failure to file amounted to wilful disregard of process. The trial court did not err in concluding that the offered explanation, "t is unclear what happened," was insufficient to allow it to open the default."

In your case, you said that the defendant never provided any explanation at all. Moreover, he has not requested that default be opened. Based on what I'm seeing, the defendant's attorney is not handling this correctly, and you should be awarded a default judgment.

In any event, I can check with a colleague to get his take on this. I'll post back when I have a response from him, though I can't promise that he'll respond by tomorrow.

Customer: replied 8 months ago.

I do concur with you on your thoughts. However the fact that he did file an answer 44 days in the 45 day window might gain some sympathy from the judge but I don't think so since he missed the requirement to open the automatic default by asking and proving a justifiable excuse. This is what makes my situation different from the above case is that my Defendant did file an answer in the 45 day window. The longer I wait (within reason) to file my motion for default judgement the worse it looks for the opening of default (I think.) If you could let me know anything else I would greatly appreciate it after you confer with your colleague.

Expert:  TJ, Esq. replied 8 months ago.
Hello again.

Agreed. The fact that no explanation was provided, and no motion was even filed is a big deal.

I'll let you know when I hear back from my colleague.
TJ, Esq., Attorney
Category: Legal
Satisfied Customers: 9606
Experience: Licensed to Practice Law
TJ, Esq. and 18 other Legal Specialists are ready to help you
Customer: replied 8 months ago.

Hi TJ,


 


Did have any luck with an answer to my question from your colleague?

Expert:  TJ, Esq. replied 8 months ago.

Hello again.

I'm sorry to say that I'm still waiting for a response.

I can open this question up here for other opinions if you'd like. I'll need to opt out.

Customer: replied 8 months ago.

Yes please do so as I really need an answer.


 


Thanks.

Expert:  socrateaser replied 8 months ago.
Hello,

Different contributor here. I have comprehensive access to the Westlaw® proprietary legal research system. The system provides substantially all statutes, regulations and case law issued by each and every state and federal governmental entity in the USA, with coverage back to the founding of the United States.

I can run a search of all Georgia laws, rules regulations, case law, etc., using keywords of my own choice, or your choice, and thereby either find or eliminate the possibility of their being any "on point" case on your question.

Given that the original contributor to this current Q&A session has already been paid, the only way I can receive credit/payment for my answer, is if you would like me to research the issue for you, please open a new Q&A session, and put my userid ("To socrateaser, only") in the first sentence of your new question, and I will be happy to assist you further.

Thanks in advance for your cooperation.

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