debt tired Posted March 21, 2007 Report Share Posted March 21, 2007 Background: being sued by Cap1 for old debt. DOLA is 09/00. Gerald Moore is attorney. I live in GA. SOL on open acct is 4 years, written is 6 years. They filed suit in 01/02/07. I answered suit with SOL defense. I then filed for a MSJ based on SOL. Received their answer which is a motion for summary judgement for them. They are stating that the account is a written account and not open. Their points:O.C.G.A 9-3-25 Does not Apply to a Valid and Enforceable Written Contract Existing between plaintiff and defendantDefendant is in Default of the Customer Agreement (includes an affidavit from someone that works for Cap 1 for support)Defendants Additional Basis for Summary Judgment Fails for Lack of Legal and/or Factual JustificationIn my answer and in my MSJ, I included the Truth in Lending act about open accts and statute of frauds for my state. I also included an affidavit stating that no payments have been made since 09/00. In their response they included all the statements beginning Nov 99 (when I opened the acct) to Feb 2001. They even admit that the account was charged off 03/01. Being as I have no statements, I looked thru all of my bank statements to see if I ever made a payment after 09/00. According to my bank statements, I did not. Now, in all of the statements they included it shows that I made a $20 payment on Dec 16, 2000. This did not bring the account current as the amount due was $665. Again, I looked thru my bank statements and I do not see this payment. This is what puzzles me about the supposed payment. I make all my payments via online banking. All prior payments made simply state on the statements "Payment received - Thank You". This payment states, "Direct Debit Payment". Again, none of my bank statements support this. Any payments made via online or direct debit state who it was made too. I don't even have a $20 amount made to anyone on my bank statement. Am I wrong in understanding that even if they try for 6 years, it too has passed since they didn't file until January 2007? Even if I did make that Dec payment, am I wrong in understanding that it did not bring the account current, therefore it doesn't count? Link to comment Share on other sites More sharing options...
divemedic Posted March 21, 2007 Report Share Posted March 21, 2007 I would be ready to present that at the hearing- even if the Plaintiff's claims are to be taken without opposition, the 6 year SOL on written agreements would have expired December 2006. Since the complaint was filed Jan of 2007, this suit is barred by the SOL. Link to comment Share on other sites More sharing options...
debt tired Posted March 21, 2007 Author Report Share Posted March 21, 2007 I would be ready to present that at the hearing- even if the Plaintiff's claims are to be taken without opposition, the 6 year SOL on written agreements would have expired December 2006. Since the complaint was filed Jan of 2007, this suit is barred by the SOL.Do I need to amend my MSJ to include my bank statements? Or just show up in court with them? Link to comment Share on other sites More sharing options...
IHateCAs Posted March 21, 2007 Report Share Posted March 21, 2007 Amend and use 9-3-24. It's barred by that as well assuming you haven't made any written acknowledgments of the debt since it defaulted (for instance paying by check). Link to comment Share on other sites More sharing options...
IHateCAs Posted March 21, 2007 Report Share Posted March 21, 2007 Statute of frauds is worthless, don't use it. Link to comment Share on other sites More sharing options...
IHateCAs Posted March 21, 2007 Report Share Posted March 21, 2007 Find the date of the statement showing you were past due. Then that, along with the other statements showing that the account was not paid on, will be proof that the breach occured sometime around January 2001 at the latest. Link to comment Share on other sites More sharing options...
IHateCAs Posted March 21, 2007 Report Share Posted March 21, 2007 Okay, the breach occured around October 2000. Their statements support this. Let me dig up my Georgia info. Be back in a bit. Link to comment Share on other sites More sharing options...
debt tired Posted March 21, 2007 Author Report Share Posted March 21, 2007 Find the date of the statement showing you were past due. Then that, along with the other statements showing that the account was not paid on, will be proof that the breach occured sometime around January 2001 at the latest.They included all my statements. My last payment to them was Aug 2000. The only other payment made was the Dec 16 payment, that my bank statements do not support. I've looked in my Nov, Dec, Jan, Feb, and even Mar bank statments and this payment was not made. As I stated earlier, it was also posted on the cc statement different than the other payments I had made prior to Aug 2000. Link to comment Share on other sites More sharing options...
IHateCAs Posted March 21, 2007 Report Share Posted March 21, 2007 My printed out copies of Georgia annot. statutes met the shredder recently. I thought I had them all on file on my PC somewhere. Will keep looking. Link to comment Share on other sites More sharing options...
debt tired Posted March 21, 2007 Author Report Share Posted March 21, 2007 My printed out copies of Georgia annot. statutes met the shredder recently. Link to comment Share on other sites More sharing options...
debt tired Posted March 22, 2007 Author Report Share Posted March 22, 2007 I'm working on my Reply to my motion and opposition to their motion. For argumentative sake, lets say the SOL is 6 years. OCGA 9-3-24: All actions upon simple contracts in wirting shall be brought within six(6) years after the same become due and payable.The last payment I made before the account became past due was in Aug 2000. I did not make my Sept, Oct, or Nov pmt. The Dec pmt due was $695. According to them, I made a payment of $20 on Dec 16. I have bank statements that prove otherwise. My question, since the payment did not bring the account current and it was still in default, wouldn't the SOL still begin in Sept 2000, therefore SOL expired Sept 2006? Link to comment Share on other sites More sharing options...
nascar Posted March 22, 2007 Report Share Posted March 22, 2007 My question, since the payment did not bring the account current and it was still in default, wouldn't the SOL still begin in Sept 2000, therefore SOL expired Sept 2006?No, it does not. In Georgia, the SOL restarts upon partial payment, or a written promise to pay. Motion for Summary JudgmentIf you go into your MSJ hearing arguing points of law, you are going to lose. An MSJ can be granted only if no question as to material facts exist. You'll need to show that there are triable questions of fact in order for their motion to fail. A payment timeline is a question of fact. Evidence of a promise to pay is a question of fact. The plaintiff's legal standing is a question of fact. Whether your account is written or open is not. Study what the law in Georgia says about what is required to grant a MSJ. Those are the points you need to argue, not necessarily the guts of your case. Link to comment Share on other sites More sharing options...
debt tired Posted March 23, 2007 Author Report Share Posted March 23, 2007 No, it does not. In Georgia, the SOL restarts upon partial payment, or a written promise to pay.Can you provide GA code to support this? From my understanding and from what others have said, the partial pmt does not restart the SOL. The account was charged off in March 01, 180 days after default (Sept 00). If the pmt in Dec 00 extended the timeframe, then I would think it would extend the chargeoff date. They would then charge it off in June 01.I just want to be clear on everything and this is one thing that is not clear!In my MSJ, I include an affidavit stating that no payments had been made since Sept 2000. I looked thru all of my bank statements to make sure. Then when they filed their request for MSJ, they included all the cc statements and showing that a Dec 00 payment was made. They filed in Jan, so I firmly believe they are trying to pull a fast one on me. I have not heard from these people in 6 years and then wham! I'm so aggravated right now! Link to comment Share on other sites More sharing options...
divemedic Posted March 23, 2007 Report Share Posted March 23, 2007 Understand this- there is no issue of triable fact. If they are stating that the last payment was made Dec 16, 2000, then the 6 year SOL would have run by Dec 17, 2006. The complaint was filed on Jan 2, 2007. This suit is out of statute by 15 days. Link to comment Share on other sites More sharing options...
IHateCAs Posted April 17, 2007 Report Share Posted April 17, 2007 Update? I forgot all about this, but remembered it over the weekend. Link to comment Share on other sites More sharing options...
cracrap Posted April 17, 2007 Report Share Posted April 17, 2007 bueller? bueller? Link to comment Share on other sites More sharing options...
debt tired Posted April 18, 2007 Author Report Share Posted April 18, 2007 I have filed my response to my MSJ and opposition to their MSJ. Waiting on hearing date. I will post an update once I have my hearing. Link to comment Share on other sites More sharing options...
direred Posted April 18, 2007 Report Share Posted April 18, 2007 Good luck!May the force (of law) be with you. (Legal jedi, heh.) Link to comment Share on other sites More sharing options...
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