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This has been going on since April and they sent me a MSJ last week. I did some digging and came up with this. I am going to file a motion to dismiss too, not sure how to word it. I know this is LONG but please someone look over and help me make it LAWYERISH

....THANKS

IN THE STATE COURT OF HOUSTON COUNTY

STATE OF GEORGIA

some company

Assignee of First USA Bank, N.A.

Plaintiff,

vs.

ME :)

Defendant.

DEFENDENTS RESPONSE

TO PLAINTIFFS MOTION FOR SUMMARY JUDGEMENT

COMES NOW, ME, Defendant and responds some company Motion For Summary Judgement as follows

According to Plaintiffs letter to Defendant Exhibit A the account was charged off on January 25th 2004. This statement does not show last payment made by defendant. According to the Cardmember Agreement paragraph titled Default/Collection Cost (Exhibit B pg 4 of 6) account is in default if “(1) in any month we do not receive your minimum monthly payment by the payment due date”. Plaintiff has failed to provide any evidence as to when account went into default, but yet continues to claim that last payment on account was dated May 5, 2003 (Exhibit C). Defendant has requested proof of this claim but Plaintiff has failed and refused to provide such proof.

Defendant made payments for disability and unemployment protection services offered by First USA. Defendant requested these services take affect after being medically discharged from the Air Force. Her request was denied for both disability and unemployment. First USA is at default for denying services as agreed upon.

Per Plaintiff's Affidavit in Support of Plaintiff's Motion for Summary Judgement paragraph 6, “On or about November 17, 1995, Defendant applied for a Visa credit card”. Defendant was a resident of the state of Florida during this time and continued to be until, or about, September 2003(see Exhibit D Florida DMV Record), said account was in default prior to then. According to Florida State Law the Statute of limitation is 5 years .

Under the Federal Truth in Lending Act § 15 a credit card account is legally defined as an "open" account which is defined as credit extended by a business to a customer, charge account, credit account, charge account credit, open-end credit, revolving credit - a consumer credit line that can be used up to a certain limit or paid down at any time, revolving charge account - a charge account that does not have to be paid to zero balance. The Act is in Title I of the Consumer Credit Protection Act and is implemented by the Federal Reserve Board via Regulation Z (12 C.F.R. Part 226). The Regulation has effect and force of federal law.

Open-end Credit Transactions:

Open-end credit includes bank and gas company credit cards, stores' revolving charge accounts, and cash- advance checking accounts.

Typical features:

Creditors reasonably expect the consumer to make repeated transactions.

Creditors may impose finance charges on the unpaid balance.

As the consumer pays the outstanding balance, the amount of credit is once again available to the consumer

Federal Law supersedes State Law or a State Court's interpretation. OCGA § 7-5-2(4) and OCGA § 44-14-3(a) define a credit card as revolving, thus making it an open account. As indicated, the Federal Truth in Lending Act clearly defines credit cards as open end accounts and in the state of Georgia, that would be a four year statute. Georgia's statutes provide, OCGA § 11-2-725. Statute of limitations in contracts for sale (1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. and § 9-3-25. All actions upon open account, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied promise or undertaking shall be brought within four years after the right of action accrues. However, this Code section shall not apply to actions for the breach of contracts for the sale of goods under Article 2 of Title 11.

Plaintiff's Affidavit in Support of Plaintiff's Motion for Summary Judgement paragraph 7 states that the terms and conditions of the contract are set forth in the current Credit Card Agreement (Exhibit B titled cardmember agreement). According to the Cardmember Agreement under paragraph titled Assignment (Exhibit B pg 5) “Governing Law: This agreement and your account will be governed by the Law of the State of Delaware and, as applicable by Federal Law.” This makes Plaintiff's claim moot for two reasons 1) claim was filed in the State of Georgia not Delaware and 2) 10 Del.C. § 8106. Actions subject to 3-year limitation provides that Statute of limitations in Delaware is three years for open accounts, written contracts and oral agreements.

Conclusion

Defendant disagrees that Plaintiff is entitled to a judgement as a matter of law and further states that O.C.G.A. § 9-11-56(e) provides that “nothing in this Code section shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined.” Because the Defendant was not a Georgia resident and the account is governed by the State of Delaware, Defendant respectfully submits that the Court should dismiss, deny and find invalid the Plaintiff's complaint and Motion for Summary Judgement, and prays for Dismissal of the complaint by the Plaintiff.

Edited by amommy
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In your answer, did you assert the affirmative defense of SOL for both Georgia and Delaware? The only problems I see in your response above are the references to Florida's SOL and the claim being moot because it was filed in Georgia. They brought suit against you where you are currently living (which is perfectly fine), and since you were a resident of Georgia when they did, Florida's SOL is not relevant. Hopefully others can chime in...:)

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did you assert the affirmative defense of SOL for both Georgia and Delaware

How do I write that Do I just write

statute of limitations on this type of debt has expired and Defendant asserts the affirmative defence of Statues of Limitation for...

Thanks

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But doesn't the Delaware SOL prevail as per agreement?

Also I was a Fl resident when the SOL occured (5 years)

Another Q doesn't US supreme court overrule. There are two court findings defining credit card as an open account.

Can't find the other (if anyone knows of others please post)

http://www.usdoj.gov/osg/briefs/2002/2pet/6invit/2002-0857.pet.ami.inv.html

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I'm pretty sure you have to use state case law here, not US Supreme Court, and the federal government does not dictate what SOL dates are, states do. Since we now know GA is six years, you need to find out if GA has a "choice of law" provision (I think they do,), and then you can argue DE's SOL because the contract is governed by DE's laws. Also, the SOL applies to the state you are in when the suit is brought, not where you used to live whenever the account became delinquent. Someone please correct me if I'm wrong...:)

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yep give me a second to find it

okay, got this from lexis which I use to do my case briefs...

289 Ga. App. 576, *; 657 S.E.2d 547;

2008 Ga. App. LEXIS 65, **; 2008 Fulton County D. Rep. 259

HILL v. AMERICAN EXPRESS.

A07A2338.

COURT OF APPEALS OF GEORGIA

289 Ga. App. 576; 657 S.E.2d 547; 2008 Ga. App. LEXIS 65; 2008 Fulton County D. Rep. 259

January 24, 2008, Decided

SUBSEQUENT HISTORY: Reconsideration denied February 12, 2008 ? Cert. applied for.

PRIOR HISTORY: Statute of limitation. Bibb State Court. Before Judge Adams.

DISPOSITION: [**1] Judgment affirmed.

CASE SUMMARY

PROCEDURAL POSTURE: In a suit to collect unpaid credit card charges filed in a Georgia trial court, a creditor sued a debtor. Both parties moved for summary judgment, with the debtor alleging that the suit was time-barred. But, the trial court disagreed and found in favor of the creditor, holding that the six-year statute of limitation for simple contracts applied. Thus, the debtor appealed.

OVERVIEW: The debtor argued on appeal that the applicable statute of limitation was O.C.G.A. ? 9-3-25. But, the underlying action did not involve an open account. Instead, a contract was effected when the creditor issued its credit card to the debtor, and said issuance amounted to a mere offer which the debtor accepted when he retained the card and thereafter made use of it. Further, because the transaction at issue was a written contract, the form of the debtor's acceptance was immaterial. Thus, the provisions of O.C.G.A. ? 9-3-24 governing contracts in writing applied. As a result, the statute of limitations was six years, making the action timely filed thereunder.

OUTCOME: The judgment was affirmed.

HEADNOTES

Georgia Advance Headnotes

GA(1)(1) Banking Law. Bank Activities. Consumer Protection. Credit Card Agreements. Trial court correctly held that a credit card company's claims were not barred by the statute of limitation. There was a simple contract in writing; that the contract was agreed to, not by signature, but by use of the card did not take it out of OCGA ? 9-3-24.

COUNSEL: Lisa R. Coody, for appellant.

Trauner, Cohen & Thomas, Michael J. Cohen, for appellee.

JUDGES: ANDREWS, Presiding Judge. Ellington and Adams, JJ., concur.

OPINION BY: ANDREWS

OPINION

[*576] Andrews, Presiding Judge.

American Express sued Ricky Hill to recover $ 47,716.44 in unpaid credit card charges. Hill did not dispute that he owed money, but contended that the applicable statute of limitation barred suit on all but a small portion of the amount claimed. The trial court held that the six-year statute of limitation for simple contracts applied in this case and granted American Express's motion for summary judgment and denied Hill's motion for summary judgment. We agree that the statute of limitation in this case is six years and affirm.

HN1All actions upon simple contracts in writing shall be brought within six years after the same become due and payable. However, this Code section shall not apply to actions for the breach of contracts for the sale of goods under Article 2 of Title 11 or to negotiable instruments under Article 3 of Title 11.

[*577] OCGA ? 9-3-24.

Hill argues that the applicable statute of limitation is OCGA ? 9-3-25, which provides:

HN2All actions upon open account, or for the breach of any contract not under the hand 1 of the party sought to be charged, or upon any implied promise [**2] or undertaking shall be brought within four years after the right of action accrues. However, this Code section shall not apply to actions for the breach of contracts for the sale of goods under Article 2 of Title 11.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

1 ? ?Hand? is used in legal parlance to denote either handwriting or a written signature.? (Citation omitted.) Scarboro v. Ralston Purina Co., 160 Ga. App. 576, 578 (287 SE2d 623) (1981).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

1. This is not an action on an open account.

[A] contract was effected in this case when the plaintiff issued its credit card to the defendant to be accepted by [him] in accordance with the terms and conditions therein set forth, or at [his] option to be rejected by [him]. Such rejection need take the form of returning the card, or simply its non-use. The issuance of the card to the defendant amounted to a mere offer on plaintiff's part, and the contract became entire when defendant retained the card and thereafter made use of it. The card itself then constituted a formal and binding contract.

(Citation omitted.) Davis v. Discover Bank, 277 Ga. App. 864, 865 (627 SE2d 819) (2006).

2. We also reject Hill's contention that OCGA ? 9-3-25 applies in this case because he did not sign the contract. Because this was [**3] a written contract, 2 the form of Hill's acceptance is immaterial and the provisions of OCGA ? 9-3-24 governing contracts in writing apply.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

2 American Express has submitted a copy of the contract between the cardholder and the Bank.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Hill cites to Seaboard Air-Line R. v. Averett, 159 Ga. 876 (127 SE 217) (1925), as authority for his claim that because he did not sign a contract with American Express, the claim falls under the four-year statute of limitation of OCGA ? 9-3-25. However, Seaboard Air-Line R. does not support this argument. That case interpreted ?contracts not under the hand? to mean contracts not in writing, and stated that simple contracts in writing come under the six-year statute. Id. at 879. See also Adams v. Lee County Bank & Trust Co., 178 Ga. 154, 158 (172 SE 224) (1934) (?all actions upon promissory notes, bills of [*578] exchange, or other simple contracts in writing shall be brought within six years?) (citation and punctuation omitted). Accord Harris Trust & Sav. Bank v. McCray, 21 Ill. App.3d 605, 316 NE2d 209 (1974) (third party issuers of credit cards who bring actions against cardholders for unpaid balances have the benefit of the ten-year statute of limitation governing contracts).

In this case, there is [**4] a simple contract in writing. That the contract was agreed to, not by signature, but by use of the card does not take it out of OCGA ? 9-3-24. GA(1)(1) Accordingly, the trial court correctly held that American Express's claims were not barred by the statute of limitation.

Judgment affirmed. Ellington and Adams, JJ., concur.

Edited by ualbany18
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Ok I found this

Georgia contract actions are governed by the law of the state where the contract was made when matters of execution, interpretation, or validity are at issue, and by the law of the state where it is to be performed when the issue is one concerning performance.

I get the first part but what does and by the law of the state where it is to be performed when the issue is one concerning performance mean?

Also was wondering about what curtis825 said.

Since my 4 years was up according to them in May 2007 can I use case laws around during that time.

As far as the Del and Fl SOL go. thanks bevj2 for input. but if I was a fl resident when card issued and up until default and up until sol in fl wouldn't that SOl also apply. Just because I moved to another state doesn't mean the contract is now under the law of that state even though card was never used while resident of GA...does it.

I want to send this in tomorrow. Should I follow a motion to dismiss with it or wait?

Any help appreciated

THANKS

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It doesn't matter. It only matters where you live now.

sorry was posting when u did.

So if I move somewhere that has a 10, 20 or none I can get sued forever.

that's just really confusing!!!!

If the Ga courts now consider Credit Cards contracts then the other laws for contracts apply. State that governs is the state contract was made. Yes/No??

Edited by amommy
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sorry was posting when u did.

So if I move somewhere that has a 10, 20 or none I can get sues forever.

that's just really confusing!!!!

If the Ga courts consider Credit Cards contracts now then the same other laws for contracts apply. State that governs is the state contract was made. Yes/No??

Yep....pretty much sucks, but the SOL of the state where you live when suit is brought is the one that counts. Now, you should still be able to argue that the contract itself states everything is subject to DE law, and DE SOL should apply. Do a search through the forum for GA choice of law, I'm almost positive I have seen this issue addressed somewhere else. Contracts regarding credit cards are a funny beast, and it seems every state is different in how they interpret them. In OH, for example, credit card agreements do NOT fall under the definition of a written contract. Hopefully some other GA posters will have more suggestions/advice.

BTW....I used to live in WR....:)

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It doesn't matter. It only matters where you live now.

Hi Merrybuck (I like that)

I was wondering if I could get a copy of your case in 2008

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=284041 . whether in email, msg or online copy. Is there a link to it? I searched and WOW it would take hours to find yours and I might not at all.

Thanks

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I just wanna make sure I'm doing this right

When referring to the other party's (Plaintiffs) exhibit how do I do that.

Do I include them as my own exhibit or refer to them as Plaintiffs PAGE TITLE Exhibit A EXHIBIT TITLE

Just wondering b/c if I include them as my own Exhibits I would have to use the same sequence that is on or cross it out(ugly). So can I right Exhibit C before Exhibit A if I refer to it first and they already have C on it

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If you are able to prove sol is under ga and that the company brought the suit about after sol has past, you can sue for violations of fdcpa, each action is a 1000.00 punitive damage award, and you also can add actual damages incured to that as well.

If sol is passed and they've brought action my advice would be to hire a NACA lawyer and file countersuit.

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