[Iowe]

My question involves an auto loan or repossession in the State of: Georgia

In November 2001, I quit making my payments on a high quality automobile that I purchased from the wonderful people at Ugly Duckling Auto Sales. In January 2002, I parked the car at a grocery store, called them up and told them where to pick the car up. In February they finally did.

Fast forward a bunch of years. A junk debt buyer purchases the debt for 2.275¢ on the dollar, then adds about $6000 to the original debt in interest and fees and files suit against me. I've answered the lawsuit, answered their interrogatories (without giving any info or admitting anything. It helped that they sued my as Drivetime and the company was known as Ugly Duckling when I bought the car, thus I can't remember having ever purchased anything from a company named Drivetime), objected to their motion for a summary judgment, asked my own interrogatories about everything under the sun (of course they objected to every single one and gave no new info), requested tons of documentation, etc.

Here is the motion for dismissal that I'm getting ready to send. Do you think it stands a chance?


SUPERIOR COURT OF MY COUNTY

STATE OF GEORGIA



Scumbag Junk Debt Buyer
DRIVETIME,
Plaintiff,
vs.
Iowe
Defendant )
)
)
)
)
)
)
)
)
) Case No.: XX-XXXX-X

MOTION FOR DISMISSAL

Comes now the Defendant and moves that this Court as follows:
1. That it dismiss the above numbered actions based upon the following:
Statute of Limitations. Plaintiff is attempting to collect upon a repossession deficiency under the legal theory of breach of agreement. In such cases wherein a vehicle has been reposed and disposed of pursuant to Uniform Commercial Code, the breach of agreement theory of law is moot as the repossession of the collateral "perfects" the agreement. However, the party upon whom the vehicle has been repossessed from still may be liable for any deficiency balance pursuant to Article 2 of the U.C.C.

In addition to specific rights and remedies, OCGA 11-2-725 (Uniform Commercial Code - Sales) also specifies a separate and specific statute of limitations for repossession deficiencies, to wit 4 years from the date the deficiency was created.

In the instant case, Defendants vehicle was sold to Rainbow Auto Sales on 03/25/2002, 5 years and 5 months prior to the initiation of Plaintiffs the instant legal action. As such Plaintiff's claim is time barred by the statute of limitations.




Dated this June XX, 2008



Iowe
My Address
City, ST ZIP

[Mr. Knowitall]

You seem to believe that you are being sued over a sales contract. This is a deficiency following repossession, so it would appear instead that you're being sued under your financing contract.

[Iowe]

If the JDB was suing me for the deficiency after the sale of the vehicle would it not fall under UCC rather than as a contract? From what I've read this is an area that intermediate courts have ruled both ways on. The State Supreme Court has yet to rule on whether the statute is 4 after the sale or 6 years after the first missed payment on the deficiency after the sale of a motor vehicle.

Yes, I do realize that as a deadbeat debtor, I'm not everyone's favorite person around here but I am trying to move on with my life. Maybe it's time to move to Texas (no wage garnishments).

[Mr. Knowitall]

Get the actual case law that you believe supports your position that a four year limitations period applies, and present it to the court. Georgia's case law on these issues seems pretty sketchy.

[Iowe]

In last night's mail I received the answers to my first interrogatories, request for documents and admissions. They objected to every single interrogatory, including a simple one that asked for the name of the actual owner of the debt.

The list of documents I asked for only two were able to be produced. One being the actual purchase contract and second the sale of the vehicle. They do not have an accounting of the payments that were made which would establish when the last payment was made.

[andrewvettese]

Dont bother on the 4 or 6 year statue defence the court will rule 6 years.... I not 30 days ago lost that exact argument...
My attorney though it was a great defence and i spent 4 thou with him and LOST in georgia state court...

[Iowe]

In truth, I've got one foot into bankruptcy and the other foot on the banana peel. My divorce will be final on August 14... So anything now is just delay although I would really love to beat this junk debt buyer just because he is such a nice guy... Through discovery I have found that he paid 2.275¢ per dollar on the note. About $131 and he hopes to collect $11,700+... Not bloody likely especially if he can't produce anything other than an original contract and a notice of repossession. No accounting or anything listing the payments.