Or Why it Takes So Long to Obtain a Judgment in Georgia”
Whether you are a member of a community association or serve on the board of directors, the one thing that really frustrates you is the neighbor who hasn’t paid his/her assessments. Most of my clients wish that, the day after the due date, I could reach into that delinquent owner’s wallet, or take his home . . . or something. In Georgia we do not seize people’s homes easily, as seen recently on a television program about community associations! The Georgia Civil Practice Act, or the legal process by which we obtain a judgment and are entitled to recover it, controls the process. This article is intended to be a GUIDE for association members. No two cases are exactly alike, no two courts are alike and no two attorneys may handle a case in exactly the same way. Hopefully this guide will help familiarize you with the process and while you may not like how long it may take, you will understand why it may take so long to get a Judgment. Keep in mind that this article only gets you to the Judgment and does not even address collecting it. We’ll save that for next time.
1. Preliminary Matters
The Board should have a protocol in place for dealing with delinquencies. Do you refer an account for legal action at a certain dollar amount, or after an account is delinquent for a certain length of time? Do you treat like cases alike? Is the Board communicating clearly with the management company about whose job it is to deal with delinquent accounts? Is it the management company’s responsibility to authorize legal activity, or does the Board want to review those decisions first? Once the decision has been made to pursue legal action, the treasurer or the management company needs to provide the lawyer with a current ledger of the account and give authorization to begin collection action. The numbers following the paragraphs are approximate times to complete that step. It should take no more than 7 – 14 days for the law firm to send a warning of suit letter, once a ledger and authorization is received.
- A warning of suit letter is sent giving the owner 30 days to pay the outstanding amounts due in full. 35 DAYS
- Because most people make at least some payment upon receipt of the letter, most law firms require the Board or Management Company to notify them if payment has not been received and authorize a lawsuit.
- Once a suit has been authorized, a title exam is performed. This can sometimes be done on-line by accessing land records from the internet for some counties but many times requires a “physical” title search in the county land records. This can usually be done within a week or two of the request. 7-14 DAYS
2. The Lawsuit Begins. The Complaint.
- After receiving the results of the title search, IF the owner is the same as the person who your attorney sent the warning letter to (if it is a different owner, or there is a co-owner, you would have to go back to number 1 a, and, I can’t resist . . . “and do not collect $200”) the lawsuit’s first pleading, the Complaint, would be drafted, reviewed and sent to the courthouse. This should not take more than a week after receipt of the title examination. 7 – 14 DAYS
- When the clerk of the court in which the suit has been filed receives the Complaint it is docketed in the court’s records and given to the marshal or sheriff’s office to be served.
- The marshal or sheriff will go to the address and attempt to serve the delinquent owner, now known as the “Defendant.” Service may be perfected in several ways. One is called personal service, which means the marshal or sheriff found the actual Defendant at home and handed him/her the Complaint. Any other competent person who resides at the home may also accept service, this is called notorious service and it will work too. The marshal or sheriff will sign a service return indicating how service was effected and usually who was actually served, with an unflattering description of them in terms of height and weight and return it to the clerk of the court.
- The clerk returns a copy to your attorney. If all goes well, this can be accomplished in a week or two. 7 – 14 DAYS
- If the marshal or sheriff tries several times, usually very early and very late in the day, but cannot find anyone at the address, the Complaint will be returned and you will have to consider whether to hire a special agent to attempt service.
3. The Lawsuit Reaches an Amicable End – The Consent Order
- Many times the Defendant will call the attorney after receiving the lawsuit and want to resolve the lawsuit. If he/she can’t pay the entire amount at once, the association should consider entering into a Consent Order. By signing a Consent Order, the Defendant obligates him or herself to make periodic payments on the past due balance and to pay all current assessments on time.
- If the Defendant fails to make all the payments on time, your attorney can file an affidavit with the court swearing that the terms of the Consent Order have been breached and asking the Court to enter a judgment. The Court will review the affidavit and judgment will be entered for the amounts still due under the terms of the Consent Order. Sometimes there is quick turn-around by the Court. Sometimes it takes several months to receive the Final Order and Judgment.
4. The Lawsuit Comes to a “Quick” End – The Default
- A Defendant has 30 days to file an Answer to the lawsuit or it goes into default. (You begin counting the day after the day the marshal or sheriff serves the Complaint.) A default entitled the association to recover the amounts set forth in the Complaint, because the Defendant has “admitted” liability for the amounts due by not contesting the matter. From day 31 to day 46, the Defendant can “open” the default, by paying the costs you paid to file the lawsuit, and still file an Answer. 46 DAYS
- The law firm will confirm with the court that no Answer has been filed and prepare documents requesting entry of the Default Judgment. 7 – 14 DAYS
- In some counties, requests for default judgments are presented to the assigned judge the day it is filed. In some counties it can take as long as 3 or 4 months for the file to find its way to the judge for consideration and entry of your Judgment. Average: 60 – DAYSIf you will add up the approximate days above, you can expect it to take, ON AVERAGE, 211 days to receive a Default Judgment. Sometimes it is much faster, sometimes it takes much longer.
5. The Lawsuit Doesn’t Come to a Quick End – The Answer
- If an Answer is filed by the Defendant, a statutory SIX MONTH discovery period is triggered. During this six month period the association can conduct discovery, that is, ask the Defendant to respond to interrogatories, requests for production of documents, requests for admissions or take the Defendant’s deposition to find out whether there is any merit at all to the defenses raised by the Defendant in the Answer. 180 DAYS
- Of course, sometimes the Answer states something like: “I admit I owe the money, but the dog needed surgery and I don’t have any extra money.” If no legal defenses to the claim are asserted in the Answer, your lawyer can file a Motion for Judgment on the Pleadings or a Motion for Summary Judgment. 14 – 30 DAYS
- The Defendant is allowed 30 days to file a response to any Motion. 30 DAYS
- The Court will either rule on the Motion in its own time or schedule a hearing on the Motion. The association’s Motion should be granted and Judgment entered. 30 – 60 DAYS
- In the alternative, your attorney may just ask the Court to put the case on the next available trial calendar. Some Courts refuse to do this until the six month discovery period has run, some will automatically put it on the trial calendar as soon as the Answer is filed. It may take several months to come up on a non-jury trial calendar. 90 – 120 DAYS
If an Answer is filed, then you can expect it to take approximately 8 – 12 months to receive your Judgment. At any time in the process, of course, you can amend the Complaint to include the next year’s accelerated assessment if it has come due during the pendency of the suit.
Sometimes the “litigation gods” smile down and this process goes much more quickly, but I think that the lesson is clear: If someone offers to pay you half of the past due now and half in 30 days, you might want to remain flexible. Review your documents and see if there are other remedies, such as restricting access to the pool, which might get you a quicker result. This abbreviated tour of civil procedure was not intended to be an exhaustive guide to what can happen in an assessment collection action, but hopefully will assist you in understanding the process.