[gagrits]

My question involves collection proceedings in the State of: GA

CACH is attempting to drag me into arbitration over a debt they bought. They kept calling and would not send anything in the mail. Finally, I got something in 11/07 from them and an Arbitration company. I wrote back within a week or so and demanded proof of debt including something with my signature, the usual things to prove I owe the debt. No response and the Arbitration Forum issued a stay. I wrote CACH again in 01/08 and still still no response. Both letters I sent them and the Arbitration Forum I have a signed reciept. Today 9/15/08, I got a letter including "exihibits" asking the Arbitration Forum to go forward. THese include an undated letter from original creditor saying they sold the debts to CACH (does not state my name or anything) and a few copies of statements. THey claim the debt was charged off on 10/29/04, I made the last payment to original creditor on 5/31/05 and CACH bought it on 4/17/06.

I have never heard from CACH until they began calling around 08/07 and then they would not give me an address or mail me anything. The OC claims the debt was opened in 11/99 and that it had become past due within the first 12 months and never caught up because of late fees.

I am planning to write them again but I am thinking I need an lawyer. I know the SOL on revolving credit for Georgia changed January of 2008 but since I started disputing this in Nov of 07 does that matter? Also they have only submitted a few documents to the Arbitration forum none of which have my signature, did not respond to my requests for documentation in 11/07 and going by the OC the account was more than 30 days past due in late 2000 so shouldn't the SOL start when it became pat due?


Any advice would be appreciated!

[Mr. Knowitall]

The statute of limitations wasn't changed. It was clarified by a court decision. The law remained the same, so the court can be expected to apply the law as clarified by the appellate court.

[javapop]

Georgia Court of Appeals came out with a decision on January 24, 2008 in Hill v. American Express that in Georgia the statute of limitations on a credit card is six years after the amount becomes due and payable

How can extending a SOL by 2 years be clarification of a law? Is this a common practice by Appetite courts?

[junker]

IF Georgia decided after all this time a credit card acct was a written agreement verses a open agreement, it seems to me it was changed, not clarified. after all it was a open agreement earlier wasnt it?

[javapop]

IF Georgia decided after all this time a credit card acct was a written agreement verses a open agreement, it seems to me it was changed, not clarified. after all it was a open agreement earlier wasnt it?

I would be interested to hear if any other similar cases have come up since January, involving this issue of SOL.

[javapop]

Is there any particular "kind" of attorney that is best suited to handle a case of this sort? I have a cousin, who is a small town attorney who has written some letters. Do the collection agencies respond to any attorney better that others?

[aaron]

I don't see anything since this case:

Hill v. American Express
Court of Appeals of Georgia
No. A07A2338.
289 Ga. App. 576; 657 S.E.2d 547
January 24, 2008, Decided

Judges: Andrews, Presiding Judge. Ellington and Adams, JJ., concur.

Opinion: 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.

All 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. OCGA § 9-3-24.

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

All 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 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.

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 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.

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 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 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.
_________________

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).

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

[ashman165]

Is there any particular "kind" of attorney that is best suited to handle a case of this sort? I have a cousin, who is a small town attorney who has written some letters. Do the collection agencies respond to any attorney better that others?

Well, I can't say if anyone responds better to an attorney than a private person filing claim as I don't know these people. But, consider that you're a business. Also consider that you are attempting to get money owed you. Further consider each of these situations:

You receive a letter on regular bound, college-ruled paper written in someone's own hand and its replete with: misspelled words, no citations of law, no expected duty or action; or you get a letter with a lawyer's name at the top which is typed up, grammatically correct (more or less), replete with fancy language like propounded, estoppel, tort law contract stipulations, statute of limitations, pursuant to (enter case citations here) and the like.

Which are you going to take more seriously?

For your case, say you get a note scribbled on something and then mailed to you. Or you get something from them an arbitration forum with citations of debts owed. Which did you take more seriously?

While any attorney can write letters and file motions (as can any private person) and passably handle a case for you, do you really want an entertainment attorney representing you on a credit card debt? Not to say he wouldn't be great at it - I'm not implying that. Or do you want an attorney whose practice, or a significant part of it, is in handling financial law?

I'd go with an attorney whose practice is heavily involved in handling consumer credit. There's also an old saying that anyone who represents himself as his own attorney has a fool for a client. It's not just a witty saying. When your interests are at stake, it's very easy to get too deeply involved emotionally to have the perspective needed to look at all the factors which might be relevant.

[javapop]

I don't see anything since this case:
[CENTER]Hill v. American Express.

Thanks for the details on this case,
Now, another question, if you don't mind:

Within Truth in Lending Act - TILA § 15, a credit card account is legally defined as an "open" account.

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

I have a debt that I have the original welcome letter, which states on Citibank's letterhead that it is a "revolving credit line"

The last payment was made on Oct 28th, 2003. I am over 4 years; but under 6 years... Does this original letter give me any weight?

One additional note... I received a letter from Collection Company B which represents Collection Agency A; which had a figure of 7087.00

3 weeks later, I received a letter directly from Collection Agency A which had an offer to reduce my debt... of 5563.00 to $5000 if I accepted a "pre-approved" credit card offer for $5000 with an interest rate of only 19.9 %

The fact that I have 2 companies giving me 2 separate totals is rather confusing. I am not sure if I should pursue request of validation, or dismissal due to SOL expiring.