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Georgia Statute of Limitations, Court of Appeals Ruling

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  • 08-30-2008, 04:13 PM
    GAMama
    Georgia Statute of Limitations, Court of Appeals Ruling
    My question involves collection proceedings in the State of: Georgia


    Quote:

    Quoting DoubleDawg3:
    For those who search on here trying to determine whether a 4 or 6 year SOL applies to credit card suits in Georgia, you should be aware that on Jan. 24, 2008 the Court of Appeals of Georgia ruled that a contract between a customer and credit card company constituted a simple contract in writing subject to the six-year statute of limitations for written contracts. Hill v. American Express, 2008 WL 204623 (Ga. App.) - Westlaw temporary cite.

    So - looks like a 6 year SOL.
    How can that be when the federal Truth In Lending defines credit cards as open accounts?

    "(i) The term “open end credit plan” means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time." (TITLE 15 > CHAPTER 41 > SUBCHAPTER I > Part A > § 1602)
  • 08-30-2008, 10:29 PM
    Betty3
    Re: Georgia SOL Appeals Ruling
    Some states consider credit cards as open ended accounts; others consider them as written agreements/contracts. You always have to check your state to see what applies. Ga. is one state where the courts have started considering credit cards as written agreements with the longer SOL. More & more states are starting to consider them as written contracts. (store cards usually excluded - ie Sears)
  • 08-31-2008, 03:49 AM
    BOR
    Re: Georgia SOL Appeals Ruling
    Quote:

    Quoting GAMama
    View Post
    My question involves collection proceedings in the State of: Georgia




    How can that be when the federal Truth In Lending defines credit cards as open accounts?

    "(i) The term “open end credit plan” means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time." (TITLE 15 > CHAPTER 41 > SUBCHAPTER I > Part A > § 1602)


    Such "definitions" only apply to the enforcement of the Act itself, and has no bearing on what limitations of actions a state wishes to assign to a claim or term it.

    You will find that the same "word/phrase" for "purposes of this section/chapter" in reference, will/may have a different meaning in another legislative act, as we see in the prefatory sentence of the act:


    (a) The definitions and rules of construction set forth in this section are applicable for the purposes of this subchapter.


    http://www4.law.cornell.edu/uscode/s...2----000-.html

    I can't pull up the decision online, but pay a visit to the law school law library of a nearby College/University and look it up for the legal reasoning behind it.
  • 09-22-2008, 02:47 PM
    momo41
    Re: Georgia Statute of Limitations, Court of Appeals Ruling
    Does this mean you aquire the Card in Georgia, or that the card company is located in Georgia? What if you aquired the card in another state and currently reside in Georgia?
  • 09-22-2008, 08:07 PM
    BOR
    Re: Georgia Statute of Limitations, Court of Appeals Ruling
    Quote:

    Quoting momo41
    View Post
    Does this mean you aquire the Card in Georgia, or that the card company is located in Georgia? What if you aquired the card in another state and currently reside in Georgia?


    The credit card agreement should have a provision outlining "conflict/choice of law" provisions and what state laws apply for enforcement etc.
  • 10-02-2008, 12:53 PM
    iceclimber
    Re: Georgia Statute of Limitations, Court of Appeals Ruling
    Hill v. American Express mentioned above was a business account.

    only CONSUMER accounts are covered under the TILA and FDCPA
  • 10-27-2008, 04:23 PM
    Gone2BoraBora
    Re: Georgia Statute of Limitations, Court of Appeals Ruling
    Here's the scoop.

    Under TILA, FDCPA, even the Ga. Fair Lending Act, a credit card account is an "open-ended" credit. There are US Supreme Court cases from 2004 confirming this.

    These laws deal with disclosure of information and debt collectors. They have NOTHING TO DO WITH how long the debt collector has to sue on the claim. This is why the whole subject is so confusing, and it took me all day to reconcile the GA court decision with everything else I read.

    For purposes of the statute of limitations in Georgia, an "open account" is an implied contract. That means the terms of repayment are not written out with specific times to pay and consequences if you don't. In Georgia, you have to bring your lawsuit on an unwritten contract sooner (4 years) than if the contract is in writing (6 years).

    In other words, the term "open account" means something different when the law is about giving consumers information and when it comes to establishing how long someone has to sue to enforce the contract. [Whether this is a good or bad thing is debatable.]

    The Hill v. AmEx case in Ga. was appealed to the Supreme Court, and the Georgia Supreme Court refused to hear it. As the Court of Appeals decision was unanimous, it stands as the law until reversed by the higher court or the Georgia Legislature changes the rules.

    So, under Georgia law, using the credit card is the same as signing the contract, and the creditor has 6 years from the date you stop paying to sue you.

    Whether GA law governs your credit card, when the last payment was made, whether you owe anything, whether the creditor misbehaved, whether it complied with TILA etc., are totally separate issues and defenses.
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