Are there any suggestions to defend myself against such actions O.C.G.A. 13-1-11 (2010) 13-1-11?
1 Answer | Asked in Consumer Law for Georgia on Apr 4, 2013.
Answered On Apr 8, 2013
The statute below is what you cited. Attorney's fee provisions are common in many types of contracts, like mortgages or credit card debts. The only defense I know of would be if the contract did NOT provide for it. You could possibly argue that something like a credit card agreement that contains it is a contract of adhesion, but courts will not be real sympathetic to that argument and will say that if you did not like the contract then you should not have applied for and used the credit card (or mortgage or whatever was the subject of the contract). Other possible defenses would be that you can challenge the reasonableness of the fees claimed or possibly that notice was not given of the intent to invoke the attorney fee provision. All of this assumes that you have been or will be sued. In such case, your efforts should focus not on defenses to the attorney fees but on what you intend to do about the underlying obligation. Are you going to file bankruptcy? If so, then the attorney's fees are irrelevant because you probably will not pay the claim, let alone any added fees like this. Are you intending to litigate and do you have valid defenses? Or are you hoping to settle? Again, attorney's fees may be irrelevant as you may little if any of the fees. OCGA § 13-1-11. Validity and enforcement of obligations to pay attorney's fees upon notes or other evidence of indebtedness (a) Obligations to pay attorney's fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, shall be valid and enforceable and collectable as a part of such debt if such note or other evidence of indebtedness is collected by or through an attorney after maturity, subject to subsection (b) of this Code section and to the following provisions: (1) If such note or other evidence of indebtedness provides for attorney's fees in some specific percent of the principal and interest owing thereon, such provision and obligation shall be valid and enforceable up to but not in excess of 15 percent of the principal and interest owing on said note or other evidence of indebtedness; (2) If such note or other evidence of indebtedness provides for the payment of reasonable attorney's fees without specifying any specific percent, such provision shall be construed to mean 15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00; and (3) The holder of the note or other evidence of indebtedness or his or her attorney at law shall, after maturity of the obligation, notify in writing the maker, endorser, or party sought to be held on said obligation that the provisions relative to payment of attorney's fees in addition to the principal and interest shall be enforced and that such maker, endorser, or party sought to be held on said obligation has ten days from the receipt of such notice to pay the principal and interest without the attorney's fees. If the maker, endorser, or party sought to be held on any such obligation shall pay the principal and interest in full before the expiration of such time, then the obligation to pay the attorney's fees shall be void and no court shall enforce the agreement. The refusal of a debtor to accept delivery of the notice specified in this paragraph shall be the equivalent of such notice. (b) (1) If, in a civil action, application of the provisions of paragraph (2) of subsection (a) of this Code section will result in an award of attorney's fees in an amount greater than $20,000.00, the party required to pay such fees may, prior to the entry of judgment, petition the court seeking a determination as to the reasonableness of such attorney's fees. (2) In response to a petition filed under paragraph (1) of this subsection, the party requesting the attorney's fees shall submit an affidavit to the court with evidence of attorney's fees, and the party required to pay such fees may respond to such affidavit. (3) The court may hold a hearing to decide the matter of attorney's fees or may award attorney's fees based on the written evidence submitted to the court. The amount of attorney's fees awarded shall be an amount found by the court to be reasonable and necessary for asserting the rights of the party requesting attorney's fees. (4) This subsection shall not apply to a party against whom a default judgment is to be entered pursuant to Code Section 9-11-55. (5) A civil action instituted solely for the purpose of invoking this subsection shall be void ab initio. (c) Obligations to pay attorney's fees contained in security deeds and bills of sale to secure debt shall be subject to this Code section where applicable. (d) The provisions of this Code section shall not authorize the recovery of attorney's fees in any tort claim.