308 Ga. App. 597
Ga. Ct. App.2011Background
- Cavalry Portfolio Services obtained a default judgment against Camp in August 2008 for $27,799 after Camp failed to answer a summons and continuing garnishment.
- Camp filed a motion for relief from the default judgment under OCGA § 18-4-91 on January 12, 2009, seeking modification and payment of accrued costs ($2,451.87).
- Cavalry asserted Camp received notice by certified mail on October 6, 2008, with delivery confirmed October 9, 2008; Camp acknowledged receipt but contested the notice due to an illegible file-stamp.
- Camp argued its first notice was December 26, 2008 (letter from Cavalry’s attorney), making the 60-day window run from that date.
- The trial court held an evidentiary hearing; the court and appellate review treated the notice as effective on October 9, 2008, starting the 60-day period, and Camp’s January 12, 2009 filing was time-barred.
- OCGA § 9-11-58(b) and § 5-6-31 define entry of judgment as the signing by the judge and filing with the clerk; the issue was whether notice under OCGA § 18-4-91 was satisfied despite the photocopied stamp.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was OCGA § 18-4-91 notice satisfied? | Camp argues first notice was December 26, 2008. | Cavalry contends notice occurred October 9, 2008 and started the 60-day window. | Yes; notice satisfied and window began October 9, 2008. |
| When does the 60-day period commence for modification? | Period began December 26, 2008 (first notice). | Period began October 9, 2008 (actual receipt). | Starts on October 9, 2008; motion filed January 12, 2009 was untimely. |
| Is a photocopied file stamp sufficient to prove notice? | Illegible file stamp undermines notice. | Certified mail receipt shows actual notice; legibility not required. | Photocopy with ghost/illegible stamp does not negate notice; notice valid. |
| Is entry of judgment complete at signing and filing? | Not specifically challenged beyond notice. | Entry occurs when signed by judge and filed by clerk. | Entry occurred; notice analysis controls the 60-day window, not the copy’s legibility. |
Key Cases Cited
- Five Star Steel Contractors v. Colonial Credit Union, 208 Ga.App. 694 (1993) (notice is remedial; 60-day window begins on first attempted delivery)
- Brassell v. Coventry Holding Group, 228 Ga.App. 827 (1997) (60-day window begins when a signed certified mail notice is received)
- Suarez v. Halbert, 246 Ga.App. 822 (2000) (plain legal error standard; interpret notice statutes to effect their purpose)