GA SOL Confusion

[debt tired]

I have an account that became delinquent in 08/00. I made a payment in 08/02. Does the SOL begin in 08/00 or 08/02? I never brought the account current from the first time I became delinquent (08/00). The account was charged off 04/01. My state law states from the time of default, which would be 08/00. My confusion lies with the payment that I made in 08/02. Since I made a payment, does the SOL start from there? I've read some articles that say no since the payment was made after it was charged off. But again, I've read some that say the payment restarts the clock. Does anyone have a clear answer and supporting info?!

Thanks!

[CaptCBM]

If it was charged off who did you make the payment to and if you don't mind me asking why would you have made one random payment like that? usually any type of payment restarts the SOL.

[IHateCAs]

The clear answer is "it depends". That's why you are receiving conflicting information in your internet searches. It is state specific.

What type of account was this? I will check my GA notes when I get home, but I'm pretty sure SOLC is not reset by partial payments.

[debt tired]

The payment was made to the OC. After about 6 months of not paying, I had started to try and make an attempt to pay off the debt. I made sporadic payments of $20 - $50. Again, I never brought the account current. The account is a credit card, MBNA to be exact.

[CarolinaBlueEyes]

The last payment you made is when the SOL starts... so if you made even a 10.00 payment in GA in 2002.. then that is when your SOL starts

[IHateCAs]

The last payment you made is when the SOL starts... so if you made even a 10.00 payment in GA in 2002.. then that is when your SOL starts

What is your Georgia law authority to support this?

[IHateCAs]

The AG for GA listed an opinion that partial payments on open accounts do not reset SOLC.

Of course that is an AG opinion and not a court case and there is no guarantee credit cards fall under the 4 year open acct SOLC (9-3-25) and not the 6 year written acct SOLC (9-3-24).

What I do know is certain JDBs consider Georgia to be a 4 year SOLC state, so I may have not just come across the correct holdings yet.

[CarolinaBlueEyes]

What is your Georgia law authority to support this?

I don't have case law to support it... so this one is on me I was actually told this by an attorney in GA that I was trying to negotiate with at the time. (they had my case in their office)

I have also had this conversation with MBNA who I wants to send my case to arbitration and I KNOW the last payment on my account is out of the SOL.. they swear they have a payment six months later (which they just changed on my credit report but have yet to supply) they are using this as the start of my SOL date.. The lawyer who has this is in CO.. and he has also said that any payment with them restarts an SOL.

\ it was indicated to me that partial payments on accounts reset an SOL., regardless of what state you are in.

. NOW I know this is true in NC (and I can back that with the statues.. that I have on my file, thank to NASCAR who keeps me in a wealth of information).. I assumed (okay bad girl ) since the lawyer and I were chatting in general he had lead me to believe this is the case..

The best thing to do is check the statutes and talk to the AG (I actually do this more then I care too)...

This will teach me to assume... I know SOL's differ state to state.. but I ASSUMED any payment would restart an SOL.. based on not seeing it listed otherwise anywhere else and a conversation with a lawyer in that state, and the one for MBNA (I figured a collector would lie but a lawyer would have to be more up front..

Feel free to bash

[E. Normis Debtor]

IHateCA's is correct; the payment did not reset the SOL.

GA statutes (9-3-110) specify a new promise to pay must be in writing to reset the limitations period.

A payment is consideration; it is not a promise.

[nascar]

Guys how do you get around this? I think any decent attorney could argue that a note in the memo line of a check stating "partial payment" or " account #12345", etc., could be contrued as "any other written acknowledgment" under the Georgia Statute below.

9-3-112.

A payment entered upon a written evidence of debt by the debtor or upon any other written acknowledgment of the existing liability shall be equivalent to a new promise to pay.

[IHateCAs]

Guys how do you get around this? I think any decent attorney could argue that a note in the memo line of a check stating "partial payment" or " account #12345", etc., could be contrued as "any other written acknowledgment" under the Georgia Statute below.

9-3-112.

A payment entered upon a written evidence of debt by the debtor or upon any other written acknowledgment of the existing liability shall be equivalent to a new promise to pay.

I wrote myself a note to research 3-110 and 3-112 when I was @ the law library yesterday but I forgot!!

[nascar]

I wrote myself a note to research 3-110 and 3-112 when I was @ the law library yesterday but I forgot!!

I searched Key 241k160, which covers this subject and I got NO hits for Georgia courts. Most other cases cited AmJur as the reference and held that partial payment, if it could be shown to have been made with knowledge and intent, forms new promise to pay.

[E. Normis Debtor]

Nascar is correct. In fact, the payment itself suffices to satisfy the promise requirement without any notation: Heath v Wheeler 234 Ga. App. 606 (507 SE2d 508 (1998)

OCGA 9-3-112 provides that "[a] payment entered upon a written evidence of debt by the debtor or upon any other written acknowledgment of the existing liability shall be equivalent to a new promise to pay. Thus, the annual payment of interest from 1987 until Alston's death in 1992 acted as a renewal of the promise to pay even if the statute of limitation would have run but for such payments. See Siefferman v. Peppers, 159 Ga. App. 688 (285 SE2d 61) (1981); accord Middlebrooks v. Cabaniss, 193 Ga. 764 (20 SE2d 10) (1942); Nat. City Bank &c. v. First Nat. Bank &c., 193 Ga. 477, 481 (2) (19 SE2d 19) (1942); Garrett v. Lincoln Cemetery, 148 Ga. App. 744 (252 SE2d 650) (1979); Hudson v. Sadtler, 100 Ga. App. 232 (110 SE2d 706) (1959).

[debt tired]

I appreciate everyone's help on this one! So assuming that the SOL started from my last partial payment of 08/02, as of 08/06, my SOL has now expired. My question now is, the CA filed for arbitration in 06/06, and of course was awarded even though I filed a letter stating that I did not want to arbitrate, they are stating that since they filed arbitration before 08/06 then my SOL doesn't count. Is this true? Or are they feeding me a bunch of crap?

[Fozzle]

It's true...a statute of limitations only means you have to bring an action before that date, it does not mean that the entire matter has to concluded before that date. Because it was filed/initiated in June, it's valid as far as the SOL issue goes.

[IHateCAs]

Another thing to consider is whether this JDB even has knowledge of the partial payments made to the OC post charge-off.

[debt tired]

They do. When I first informed them that the SOL had expired, they came back and said I had made a payment in 08/02 to the OC. Which is true. The account was delinquent for about 6 - 8 months and then I started to try and pay the debt, but only made a $20 - $50 payment. As stated earlier, the account was already charged off when I started making these payments.

[momof5]

As far as I know, an arbitration award is not binding until they bring it to a court and have it recognized. That is the "action" referred to in the law for SOL. When they bring it before the court, you could bring up the SOL defense at that point. Although they got an arbitration award, that is not a promise to pay on your part and so the 08/06 SOL should still apply.

[debt tired]

As far as I know, an arbitration award is not binding until they bring it to a court and have it recognized. That is the "action" referred to in the law for SOL. When they bring it before the court, you could bring up the SOL defense at that point. Although they got an arbitration award, that is not a promise to pay on your part and so the 08/06 SOL should still apply.

Do you have supporting info on this? Fozzle stated that it will count since they filed their arbitration prior to the 08/06 deadline. I just want as much info as possible to fight this.

[CarolinaBlueEyes]

Actually i just had this conversation with Bud Hibbs not long ago.. (I have a thread around here talking about this)

what I was told is as long as they filed for arbitration BEFORE the SOL it stands... they can do it five minutes before it expires.. so it would seem it would not be changed.. however from what I understand they have a year to turn that into a judgement...but it seems they did file before your SOL date

[IHateCAs]

Guys how do you get around this? I think any decent attorney could argue that a note in the memo line of a check stating "partial payment" or " account #12345", etc., could be contrued as "any other written acknowledgment" under the Georgia Statute below.

9-3-112.

A payment entered upon a written evidence of debt by the debtor or upon any other written acknowledgment of the existing liability shall be equivalent to a new promise to pay.

Since you mentioned checks...

An entry of acknowledgment of debt, barred by statute of limitations, on face of debtor's check, delivered by debtor to creditor as payee thereof in payment of debt, is sufficient to show such acknowledgment. Code, §§ 3-901, 3- 903. Middlebrooks v. Cabaniss, 1942, 20 S.E.2d 10, 193 Ga. 764, affirmed 20 S.E.2d 574, 194 Ga. 26.

Notation made on check delivered to creditor by debtor constitutes sufficient "written acknowledgment" to recommence running of statute of limitations where it affords means of identifying the debt with "reasonable certainty." Code, §§ 3-706, 3-901, 3-903, 3-904. Garrett v. Lincoln Cemetery, Inc., 1979, 252 S.E.2d 650, 148 Ga.App. 744.

[IHateCAs]

These seem contradictory.

Partial payments on overdue student loans reinstated six-year period in which Government had to commence action. 28 U.S.C.A. § 2415(a). U.S. v. Milam, 1988, 855 F.2d 739.

Mere partial payment of debt, in absence of written acknowledgment of liability, was not sufficient to extend debt for purpose of two-year limitation period applicable to claim for overtime wages under Federal Wages and Hours Act. Portal-to-Portal Act of 1947, § 6, 29 U.S.C.A. § 255; Code, § 3- 704. Bingham v. Advance Indus. Sec., Inc., 1976, 228 S.E.2d 1, 138 Ga.App. 875.

[IHateCAs]

Whoa

Although the limitation act of March 16, 1869 (Acts 1869, p. 133), not only bars the right of action, but extinguishes the debt, yet where a valid and binding debt had become barred under that act, it could be revived by a new promise in writing made after the lapse of the period within which the act provides for the bringing of suit, without an additional consideration for the promise. Pittman v. Elder, 1886, 76 Ga. 371.

[IHateCAs]

Notation made on check delivered to creditor by debtor constitutes sufficient "written acknowledgment" to recommence running of statute of limitations where it affords means of identifying the debt with "reasonable certainty." Code, §§ 3-706, 3-901, 3-903, 3-904. Garrett v. Lincoln Cemetery, Inc., 1979, 252 S.E.2d 650, 148 Ga.App. 744.

Provision in statute of frauds for revival of debt barred by statute of limitations by new written promise to pay, or by written acknowledgment of debt as an existing liability signed by promisor in itself, requires that the new promise or acknowledgment should furnish identification of, or means for identifying, the debt. Code, § 20-401(6). Williams v. American Sur. Co., 1952, 71 S.E.2d 714, 86 Ga.App. 533.

Where letter from insurance company to debtor recited that debtor owed $4,131.96 on his account, and letter from debtor in referring to letter from insurance company stated that debtor would forward May payment by middle of May and soon could reduce the debt to $3,000, debtor's letter sufficiently identified the debt and constituted acknowledgment of the debt sufficient to remove the bar of the statute of limitations. Code, § 20-401(6). Williams v. American Sur. Co., 1952, 71 S.E.2d 714, 86 Ga.App. 533.

A writing, containing promise to pay debt or acknowledgement of liability therefor, must sufficiently identify debt or afford means for identification thereof with reasonable certainty in order to revive liability barred by limitations or constitute new point from which limitation will commence to run. Code, §§ 3-901, 3-903. Middlebrooks v. Cabaniss, 1942, 20 S.E.2d 10, 193 Ga. 764, affirmed 20 S.E.2d 574, 194 Ga. 26.

A new promise or acknowledgment renewing a right of action barred by limitation or constituting a new point from which statute of limitations commences to run must identify the debt or afford a sufficient means of identification but if it supplies a key by which the debt may be identified with the aid of extrinsic evidence, it is sufficient. Code, §§ 3-901, 3-903, 20-401(6). National City Bank of Rome v. First Nat. Bank of Birmingham, Ala., 1942, 19 S.E.2d 19, 193 Ga. 477.

Where before debt, evidenced by unsealed indorsement on unsealed note, was barred, indorser signed and mailed to bank holding note a letter directing it to withdraw a stated amount from indorser's account to be credited on interest on note of certain estate "which bears my indorsement" and where evidence showed that the note and indorsement sued on answered the description and no other note or indorsement answered the description, the debt was sufficiently identified and the letter constituted an "acknowledgment" and fixed a new point from which limitation period could be calculated. Code, §§ 3-705, 3- 901, 3-903, 20-401(6). National City Bank of Rome v. First Nat. Bank of Birmingham, Ala., 1942, 19 S.E.2d 19, 193 Ga. 477.

Where letters acknowledged to have been written by a defendant are relied on by plaintiff to create a new promise to pay an existing open account which on its face is barred by limitations, the letters must, to have such effect, with reasonable certainty, of themselves connect the debt with the promise, and sufficiently identify the debt. Martin v. Mayer, 1940, 11 S.E.2d 218, 63 Ga.App. 387.

An unsealed note was not relieved from bar of limitations by letters written to holder of note by maker, which mentioned an "account" without indicating that any note was involved, since letters, to create new promise to pay existing open account, which on its face is barred by limitations, must with reasonable certainty, of themselves, connect debt with promise and sufficiently identify debt. Code 1933, §§ 3-705, 3-901, 20-401, subd. 6. Duke v. Lynch, 1937, 56 Ga.App. 331, 192 S.E. 535.

A debt barred by limitations will not be revived by a promise in writing which does not plainly and unmistakably refer to the debt in question. Mitchell v. Graham, 1921, 107 S.E. 373, 27 Ga.App. 60.

Where the surety on a note was the principal's bookkeeper, and a cosurety made a payment of interest on the note, the entry by the first surety on the principal's books of the following: "Jan. 19, 1912-9919 interest and disct. $118.00," was insufficient as an acknowledgment of the debt by the surety, as the entry was indefinite, unsigned, and did not identify the amount referred to as a payment on the note. Mitchell v. Graham, 1921, 107 S.E. 373, 27 Ga.App. 60.

An acknowledgment sufficient to prevent recovery on a note, being barred by limitations, may be established by the contents of a letter which does not identify the note by specific reference to its date. Duncan v. Redd, 1914, 80 S.E. 726, 14 Ga.App. 306.

A debt barred by limitations will not be revived by a promise in writing which does not plainly and unmistakably refer to the debt in question. Lambert v. Doyle, 1903, 43 S.E. 416, 117 Ga. 81.

A letter from defendant to the attorney of plaintiff, stating: "It will be impossible to pay you anything until after the first of June. I will send you check for something then. Hope to be able to clear your account quick"--is not sufficient to remove the bar of the statute of limitations. Lambert v. Doyle, 1903, 43 S.E. 416, 117 Ga. 81.

A debt barred by limitations will not be revived by a promise in writing which does not plainly and unmistakably refer to the debt in question. Hughes v. Treadway, 1902, 42 S.E. 1035, 116 Ga. 663.

Where letters acknowledged to have been written by the defendant are relied on to create a new promise to pay an existing open account, which on its face is barred by the statute of limitations, such letters must, to have such effect, with reasonable certainty, of themselves, connect the debt with the promise, and sufficiently identify the debt. By their words they must acknowledge the particular debt as an existing liability, in order to remove the bar of the statute. Slack v. Sexton, 1901, 38 S.E. 946, 113 Ga. 617.

A debt barred by limitations will not be revived by a promise in writing which does not plainly and unmistakably refer to the debt in question. Kirven v. Thornton, 1899, 34 S.E. 848, 110 Ga. 276.

A debt barred by limitations will not be revived by a promise in writing which does not plainly and unmistakably refer to the debt in question. Paille v. Plant, 1899, 34 S.E. 274, 109 Ga. 247.

In an action against executors on an outlawed note signed by their deceased mother, a new promise to pay cannot be inferred from a letter written from one of defendants to plaintiff, not signed as executor, saying: "Brother John held a note against mother. There was a credit on it. Don't know how much. Please send me the amount now due. Want to arrange, and pay if off"--such letter not sufficiently describing the note sued on. Johnson v. Johnson, 1887, 5 S.E. 629, 80 Ga. 260.

A letter promising to pay the addressee some debt which the writer owes him, but silent as to the date, amount, and character of the debt, will not toll the statute on a note of the writer to said addressee. Gartrell v. Linn, 1888, 4 S.E. 918, 79 Ga. 700. L

A new promise to toll the statute of limitations is not shown by letters or other detached writings which do not describe the debt so that it may be identified with reasonable certainty. Dobson v. Dickson, 1879, 62 Ga. 639.

Letters or other detached writings which do not describe the debt so that it may be identified with reasonable certainty, are not of themselves enough to connect the new promise which they express or imply with the particular debt declared upon. Dobson v. Dickson, 1879, 62 Ga. 639.

Where several claims against a party are barred a general acknowledgment of indebtedness will not take any of them out of the operation of the statute. Walker v. Griggs, 1861, 32 Ga. 119.

Where the promise relied on refers to notes generally, without specifying amounts, dates, etc., the promise is insufficient. Walker v. Griggs, 1861, 32 Ga. 119. Limitation Of Actions Key Number graphic 150(3)

[IHateCAs]

So what form did these part payments take and did you identify the debt in your payments?