Cap 1 Lawsuit need help

[simplyred]

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[NASCAR_Devil]

Background- I opened a capital one cc in 1998 last payment on account was 2/2002. Lawsuit filed 4/17/2008. I live in georgia. I answered with SOL just received discovery information. I was thinking just doing a MSJ affirming again SOL. Is this the right thing to do? I want to use the SOL for Ga. and Va since their customer agreement states "This agreement will be governed by Va law and Federal law." but georgia does not have a borrowing statute or at least one that I can find. Can someone help me with this? Also if I file the MSJ do I have to answer the discovery questions? If anyone in georgia has beat Cap1 please give me insight on how to do it?

Thanks for any help you can give

Is Cap1 listed as the plaintiff or is it a JDB that is suing you? SOL in GA is 6 years on written accounts so if the above info is correct, they are time barred. You will definately still need to respond to the discovery request but should also start working on counter-claims for them filing on an OOS debt.

Edit: VA has a 5 year SOL so they would be....SOL

[simplyred]

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[NASCAR_Devil]

Cap1 is listed as the plaintiff. What was sent to me is request for admission, interrogatories, production of document. How do I answer these questions just admit to all of them? It is my account and I know that I have not made any payments on this since 2/2002. I read somewhere that you should never admit to the accounts no matter what make them prove their case. It stated that I should deny owning the account, deny that the amount is correct. If I deny this info on those documents wouldn't that be perjury? This lawyer is known for given the courts false info.

In order to receive the best answer to that, follow the instructions in this sticky (just don't be too specific with personal info and amounts. You never know who's cruising this baord):

http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=242744

[NASCAR_Devil]

Can't find the link for GA RCP and Discovery. Hopefully someone else will jump in.

[hannah]

O.C.G.A § 1-3-9. Effect and enforcement of foreign laws

The laws of other states and foreign nations shall have no force and effect of themselves within this state further than is provided by the Constitution of the United States and is recognized by the comity of states. The courts shall enforce this comity, unless restrained by the General Assembly, so long as its enforcement is not contrary to the policy or prejudicial to the interests of this state.

Opinions on Contracts:

LAW APPLICABLE IN GOVERNING CONTRACTS. --Contracts are to be governed as to their nature, validity, and interpretation by the law of the place where they were made, except where it appears from the contract that it is to be performed in a state other than that in which it was made, in which case the laws of that sister state will be applied in the enforcement of any contract to be there performed, so long as such laws do not conflict with the statute, powers, or rights of the state wherein it was executed and sought to be enforced. Tillman v. Gibson, 44 Ga. App. 440, 161 S.E. 630 (1931).

The conflicts rule in this state is that where a contract is made and is to be performed in another state, the laws of the latter state will govern as to the validity, nature, obligation, and construction of the contract, where they are duly pleaded and proved, and such laws will be enforced by comity in this state unless they are contrary to public policy or prejudicial to the interests of this state. Rohner, Gehrig & Co. v. Capital City Bank, 655 F.2d 571 (5th Cir. 1981).

Contracts made and performed in another state will be enforced unless such state's laws are contrary to Georgia public policy. Nationwide Gen. Ins. Co. v. Parnham, 182 Ga. App. 823, 357 S.E.2d 139 (1987).

LAW APPLICABLE TO CONTRACTS AFFECTING PROPERTY. --As to contracts affecting realty, the law of the state where the land lies will be applied, and to all kinds of personal property, it is governed by the lex domicili of the owner. Clark v. Baker, 186 Ga. 65, 196 S.E. 750 (1938).

FOREIGN CONTRACT AND LAWS ENFORCED IN THIS STATE. --Whenever a contract made in a place outside of the territorial jurisdiction of this state is sought to be enforced in this state, courts here will enforce the contract and give effect to the laws of the place in which it was executed, so far as that can be done without violating the law of this state or its established policy. Massachusetts Benefit Life a$$'n v. Robinson, 104 Ga. 256, 30 S.E. 918, 42 L.R.A. 261 (1898).

Contracts made and performed in another state will be enforced unless such state's laws are contrary to the public policy of the enforcing state. Terry v. Mays, 161 Ga. App. 328, 291 S.E.2d 44 (1982).

CONTRACT EXECUTED IN FOREIGN STATE, NOT INTENDED AS GEORGIA CONTRACT, TREATED AS FOREIGN CONTRACT. --Where a contract not only is executed in a foreign state, but contains nothing to indicate by the place of performance or otherwise that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign state and governed by its laws. Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807, 7 S.E.2d 737 (1940); Terry v. Mays, 161 Ga. App. 328, 291 S.E.2d 44 (1982).

FOREIGN MARRIAGE SETTLEMENT APPLICABLE TO GEORGIA LANDS. --A marriage settlement executed between persons who were then and continued to be citizens of South Carolina applied to lands situated in Georgia according to South Carolina inheritance laws. Brown v. Ransey, 74 Ga. 210 (1884).

STATE'S PUBLIC POLICY IS GENERALLY LIMITED TO ENFORCEMENT OF MONEY CONTRACTS PERFORMED IN THIS STATE, and public policy does not extend to the enforcement of valid contracts made in other states, for which the rules of comity will be observed. Commercial Credit Plan, Inc. v. Parker, 152 Ga. App. 409, 263 S.E.2d 220 (1979).

EFFECT OF STATUTORY PROHIBITION IN ENFORCING STATE. --A contract is not necessarily contrary to the public policy of the enforcing state merely because it could not validly have been made there, notwithstanding the making of such contracts in the place of the forum is expressly prohibited by statute. Terry v. Mays, 161 Ga. App. 328, 291 S.E.2d 44 (1982).

CONTRACT PROVISION REGARDING SUPPORT FOLLOWING ARTIFICIAL INSEMINATION. --A Florida contract under which a mother relinquished her right to hold a sperm donor responsible for any resulting child was not unenforceable under O.C.G.A. § 1-3-9 as contrary to public policy. The contract was authorized by Florida law, and Georgia had held that paternity through artificial insemination did not confer responsibility for support. Brown v. Gadson, 288 Ga. App. 323, 654 S.E.2d 179 (2007).

[simplyred]

So does that mean I can not use Va law, as the agreement stated, in Georgia?

[hannah]

So does that mean I can not use Va law, as the agreement stated, in Georgia?

No, not necessarily...on one hand you have:

CONTRACT EXECUTED IN FOREIGN STATE, NOT INTENDED AS GEORGIA CONTRACT, TREATED AS FOREIGN CONTRACT. --Where a contract not only is executed in a foreign state, but contains nothing to indicate by the place of performance or otherwise that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign state and governed by its laws. Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807, 7 S.E.2d 737 (1940); Terry v. Mays, 161 Ga. App. 328, 291 S.E.2d 44 (1982).

This would mean that since the Cap 1 contracted specifically states VA and federal law, it would be treated as a foreign contract.

However, then you have:

STATE'S PUBLIC POLICY IS GENERALLY LIMITED TO ENFORCEMENT OF MONEY CONTRACTS PERFORMED IN THIS STATE, and public policy does not extend to the enforcement of valid contracts made in other states, for which the rules of comity will be observed. Commercial Credit Plan, Inc. v. Parker, 152 Ga. App. 409, 263 S.E.2d 220 (1979).

Comity, in law, refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation), particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction.

Your contract with Cap1 is a money contract with a clause that specifically states that the law of VA applies. The question is if that goes against public policy? I doubt that using VA law as a defense in GA would be against public policy since the contract specifically spells this out. If it were against public policy, then Cap 1 may have a bigger problem with GA consumers as their card agreement goes against public policy and may not be enforceable at all. They can't have it both ways.

In the case Commercial Credit Plan v Parker, the Appellant lender filed an interlocutory appeal from the Hart Superior Court's (Georgia) ruling that public policy demanded that Georgia law control the enforceability of a loan made in South Carolina by the lender to appellee borrowers, who were Georgia residents. The loan contract and note were valid and enforceable in South Carolina, but were not valid in Georgia, pursuant to the Georgia Industrial Loan Act, Ga. Code Ann. ch. 25-3.

The borrowers executed a loan contract and note in South Carolina under the Georgia Industrial Loan Act (Act), Ga. Code Ann. ch. 25-3. They later defaulted on the note, which prompted the lender to file suit to recover on the note. The trial court determined that the public policy considerations expressed by the Act outweighed any comity considerations and compelled the application of Georgia law, under which the loan contract was usurious and unenforceable. The court reversed the trial court's ruling applying Georgia law, because the loan contract was valid and enforceable in South Carolina, under the authority of laws which licensed, controlled, and regulated the money lending business of South Carolina. Those South Carolina laws were similar in principle and purpose to the objects and provisions of the Act, and sought to combat the reservation of extortionate and oppressive rates. Therefore, the enforcement of the loan contract and note in Georgia was not oppressive to the public policy of Georgia.

The court reversed the ruling that Georgia law controlled the enforceability of the borrowers' loan in the lender's action to recover on the note. The court directed that the loan contract and note be construed in accordance with the laws of South Carolina.

There are numerous other cases all the way up to the 11th Circuit in which Georgia will honor a choice of law provision unless there was no reasonable basis for the parties' choice or unless the provision is contrary to a fundamental policy of a state which has a materially greater interest than the chosen state. Cap 1 would have to be the one to object and that would mean that all their contracts with GA residents could be ruled unenforceable. I doubt seriously that they would consider objecting to the use of VA law. Remember though, you must plead it and prove it to use it successfully.

FOREIGN LAW MUST BE PLEADED AND PROVED. --Where a party seeks to rely on the law of another state as furnishing the basis for a right of recovery or defense different from what it would be under the laws of this state, or the common law, the law of the foreign state should be pleaded and proved. Southern Express Co. v. Hanaw, 134 Ga. 445, 67 S.E. 944, 137 Am. St. R. 227 (1910).

[admin]

But first they have to prove when you made the last payment. And those documents need to be authenticated or you can object to admitting them. If they don't have proof, they don't have a case. Did they submit a contract?

You have an absolute defense - the debt is time barred. They are not even mentioning going with the WVa SOL. I'd answer there Discovery as if you've always been in GA, and then file a motion to dismiss based on SOL.

Also, even if it says CAP1 as the plaintiff, it may still just be a JDB. Call Cap 1 and see if they are even handling your account any more. It happens all the time that a collection agenciy suing you lists the OC as the plaintiff.

[simplyred]

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[admin]

OK - so it's not Cap 1 suing you? Excellent. You can have the whole thing thrown out for fraud. They say it's Cap 1 when it's not. It's past the statute of limitations. They have no evidence - and now since we know it's not CAP1, all evidence they provide can be deemed hearsay because they have not intimate knowledge of the creation of the debt.

Make sure you file that motion to dismiss immediately.

[simplyred]

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[hannah]

simplyred,

no where in your posts have you stated that a jdb is suing you simply that a law firm filed for Cap 1. You cannot state fraud if none exists. Please clarify if this is the case.

To answer your question: "Generally, defenses such as statute of limitation or laches must be affirmatively raised by written answer, but where facts as to such an issue are uncontradicted, it may be disposed of by summary judgment, motion to dismiss, or motion for judgment on the pleadings." Beazley v. Williams, 231 Ga. 137, 200 S.E.2d 751 (1973).

Please be aware that GA considers credit cards to be written contracts not open accounts IF a contract is established.

ACTION TO COLLECT UNPAID CREDIT CARD DEBT NOT AN ACTION ON OPEN ACCOUNT. -- Because an action filed by a creditor to collect unpaid credit card charges was based on a written contract, and not an open account, the trial court properly held that the six-year limitations period under O.C.G.A. § 9-3-24 applied (and not that under O.C.G.A. § 9-3-25), supporting summary judgment in the creditor's favor; moreover, because the transaction at issue was a written contract, the form of the debtor's acceptance was immaterial. Hill v. Am. Express, 289 Ga. App. 576, 657 S.E.2d 547 (2008).

Proof would be on you to prove that this debt is time-barred. Your admissions and interogs would be centered on proving this aspect of your defense.

[admin]

simply red,

I would still file a motion based on fraud. You can give your grounds as the fact that CAP 1 no longer holds this account, per your conversation with them. You can reserve the right to amend/remove this specific item from your motion should proof arise that it is indeed Cap 1 suing you. However, you still have grounds that it's time barred (greater than 6 years). If it's not time-barred, then they need to show proof of last payment.

You can ask for proof to show that Cap 1 has some kind of contract with this law firm - but irregardless, if it's not Cap 1's in-house attorneys suing you - they are still a third party meaning they have no intimate knowledge of the creation of the debt.

If they are a third party - they will not be able to even open their mouths in court. Anything they say is hearsay. They will not be able to provide documentation which is not authenticated by Cap 1 as true copies of the originals. In other words, they have nothing.

1. I would still answer Discovery.

2. File a motion to Dismiss based on fraud and SOL. Just add a plain English sentence saying you reserve the right to amend the motion should evidence arise that the motion was not filed fraudulently, or that the debt is not time barred.

3. File a request for production of documents to the law firm. You can use what they sent you as request for discovery as a template.

[simplyred]

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[hannah]

Admin is referring to the fact that I called cap1 to get a date of last payment and they said that they no longer had my file and I would have to speak with the attorney then they gave me the number. On the summons it states Cap1 vs Simplyred. I am not sure if cap1 sold it to this law firm Fred J Hanna but Hanna is the one who filed the suit.

I was just going to file my motion for summary judgement and also answer the discoveries. I just really want this all to be over. My credit report shows date of last payment 2/6/2008 and Fred J Hanna filed the suit on 4/17/2008 so my affirmative defense is SOL.

Thanks for everyones help on this matter and keep it coming

simplyred, Cap1 may very well have sold your account to Hanna and then again maybe not. Cap1 said they no longer had your file which means they either sold it or they farmed it out to Hanna for collection and/or litigation. You need to know which before you go alleging fraud. Call Cap1 back and point blank as them if your account was sold. If your current credit report does not reflect a -0- balance, then chances are they still own it. Cap1 rarely sells accounts. Fred J Hanna is a collection agency as well as a debt buyer and law office and could be acting in any of those capacities. If Hanna does own it and has sued in Cap1's name then it IS fraud but you don't really know for sure. Your file will be red flagged in Cap1's database as not to talk to you about your account since it has gone to litigation if they do indeed still own it so you will need to be persistent to get the info that you want.

Leaving the forum now and won't be back. Good luck.

[simplyred]

bumped

[simplyred]

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[bennett]

BUMP, almost identical situation:?