[simplyred]

Like many I am being sued by Cap 1 from a debt that according to my credit report DOLA was 2/2002 for $6000. I filed the answer with the court affirming the defense of SOL. The attorneys Fred J Hanna and Associates sent me all of these papers to fill out and return: production of documents, interrogatories, request for admission. They first brought the civil suit against me 3/2008 when I responded SOL expired and ask them to validate the debt they dismissed without prejudice. They then brought another case against me 4/2008. I responded SOL and that is when I received all the document.

My response to the request for admission is to deny everything based upon asking for validation from Cap 1 and attorneys and never received anything.

My response to the production of documents is a copy of credit report showing Date of last activity as 2/2002.

Am I heading in the right direction or should I answer differently.

I am also going to do a request for admission, production of documents and interrogatories to them. Is this the correct thing to do. I am representing myself because I can't afford an attorney.

[apexcrsrvc]

You seem to be proceeding accordingly . . . better than most I may add.

[Ohio Boy]

Yes, your doing great.

Make sure you send them your discovery quickly and make sure they answer you within the rules state. They have a habit of not answering them until after the time has expired if at all.

Since this is so old I dont think they can provide you the docs and hopefully this will make them go away.

[xYBDx]

One thing to ask for from them in discovery is.... copies of all communications between CapOne and the CRA's in regards to YOUR credit file.

Point being, instead of submitting your credit report yourself, you can submit the actual communication they sent to the CRA's reporting your DOFD as the first default (30 day late), so there you have COne testifying against itself ;-)

[Enigma]

As I pointed out in your other thread,

MTD and MSJ based on expired SOL.

[simplyred]

Enigma,

I am going to file the MTD and the MSJ any thoughts on how to start one or even what to include in one. I am dumb founded on that. Also reading through the customer agreement that the lawyer sent I noticed this "APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY VIRGINIA LAW AND FEDERAL LAW." So when I file these motions I was going to reference this and the Va statute code as well as Georgia and federal. My documentation would include a copy of credit report showing DOLA and a copy of the agreement that was sent to me by attorneys.

I don't want to sound like a lawyer I just want this to be over.

I know that ethically I am obligated but legally I am not.

Any help is appreciated.

[simplyred]

removed

[simplyred]

1. File a motion to Dismiss based on SOL according to their contract governing Va and Federal law
2. A request for production of documents to the law firm. Using what they sent me as request for discovery as a template.

The attorneys have now brought in a 3rd attorney to assist with the suit and they have filed a statement of material facts upon which there exists geniune and triable issue and brief in support.

Can anyone assist on how to handle this.

Background on case
Open Cap 1 account 1998 last payment 2/2002 lawsuit filed 4/17/2008 live in Ga. SOL 4/6 yrs.

[simplyred]

To add more cap 1 is saying that action accrued on 3/2003 when said balance became due and payable. Cr list last payment 2/2002 even asked for cr to verify which they did. They ask me to see exhibit A but nothing is attached as an exhibit. How can lawyers say that the account became due and payable 1 yr after default? The other thing that was stated was they filed the suit on 3/2008 which is incorrect. They filed 3/2008 and it was dismissed without pred. then they came back and filed 4/2008. I thought if they dismiss the clock continues. They are arguing the 6 yr sol. and stating that foreign law does not count in georgia quoting Lloyd v prudential securities 211 Ga.app. 247, 438 s.e.2d 703 (1993).

What is my next recourse to this suit?

[vialna]

see this
GEORGIA

INTEREST RATE

Legal: 7%

Judgment: 12%

Commercial Accounts: 18%

STATUTE OF LIMITATIONS (IN YEARS)

Open Acct.: 4

Written Contract: 6

Domestic Judgment: 7

Foreign Judgment: 5

BAD CHECK LAWS (CIVIL PENALTY)

After 10 day written demand double damages up to $500 and service charge of $20 or 5%, whichever is greater,

GENERAL GARNISHMENT EXEMPTIONS

See federal law. City, County & State employees may be garnished.

COLLECTION AGENCY BOND & LICENSE

Bond: No

License: No

Fee: No

they are claiming it is a written contract..not open....which is 4 years...

what does your cr. report show for the dola....or do u have the hard copies from the 3 reporting agencies that show the first 30 days u were late and never got current...
that is the beginning of your sol...it is not the date it was charged off by the oc...

u also said they said to see exhibit a...nothing was with exhibit a...have u checked with the courthouse to make sure nothing additional was filed...all evidence...is suppose to be attaqched to your summons....but sometimes they file with court and u dont get it...id check with the court first before i did anything on exhibit a...

ALSO WHAT DOES YOUR SUMMONS SAY AS TO COMPLAINTS..
are they using acct stated...post more info...others will chime in...

also if they are claiming 6 yr on written theyre are certain requirements necessary to make it written...it must meet the test...if it doesnt then it falls under open...4 year..

[simplyred]

They are citing Hill vs American Express in which they are saying the debt is 6 yr.

Cr shows no dola. Shows dolp 2/2002 and date account closed 2/2003. The crazy thing I am looking back at all of my 2004-2007 cr and they listed a dola on this acc as 2/2002 a month before the lawsuit was filed they remove dola and input N/A.

I checked with the courts and they did not have an attachment with their response either.

They are using account stated on my summons

[Enigma]

Originally Posted by simplyred

To add more cap 1 is saying that action accrued on 3/2003 when said balance became due and payable. Cr list last payment 2/2002 even asked for cr to verify which they did. They ask me to see exhibit A but nothing is attached as an exhibit. How can lawyers say that the account became due and payable 1 yr after default? The other thing that was stated was they filed the suit on 3/2008 which is incorrect. They filed 3/2008 and it was dismissed without pred. then they came back and filed 4/2008. I thought if they dismiss the clock continues. They are arguing the 6 yr sol. and stating that foreign law does not count in georgia quoting Lloyd v prudential securities 211 Ga.app. 247, 438 s.e.2d 703 (1993).

What is my next recourse to this suit?

You reply citing the same case:

Although Georgia courts adhere to the rule of lex loci contractus, "parties by contract may stipulate that the laws of another jurisdiction will govern the transaction," Manderson & Associates, Inc. v. Gore, 193 Ga.App. 723, 389 S.E.2d 251, 254 (1989), unless the law is contrary to Georgia public policy, see id., or the chosen jurisdiction has no substantial relationship to the parties or the transaction. See Velten, 985 F.2d at 1519.

Have you read that case????????

[andrewv]

I am in pretty much the same situation.. I had a car repossession in florida 5 1/2 years ago and the plantiff is quoting Lloyd V. Prudential securities in my case also saying the Georgia SOL of 6 years should apply and not the florida 5 year SOL...

1. would the defence listed above be usable in my case also? (the quote about Manderson & Associates)
2. I have been doing a bit of reading and Lloyd V. PS seems to talk about tolling the SOL being procedural not the SOL themselves... dose anybody have any input?

[hannah]

Originally Posted by andrewv

I am in pretty much the same situation.. I had a car repossession in florida 5 1/2 years ago and the plantiff is quoting Lloyd V. Prudential securities in my case also saying the Georgia SOL of 6 years should apply and not the florida 5 year SOL...

1. would the defence listed above be usable in my case also? (the quote about Manderson & Associates)
2. I have been doing a bit of reading and Lloyd V. PS seems to talk about tolling the SOL being procedural not the SOL themselves... dose anybody have any input?

Neither of those apply. An auto deficiency is governed by the UCC which is 4 years. Use an affirmative defense of SOL. An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. In addition in Florida, if the car is sold at a public auction, you must be notified of the date in advance. If sold at a private sale, you will be notified of a date after which it will be sold. Any resale must be conducted in a "commercially reasonable manner". For example, a resale price which is below fair market value may be unreasonable. If this occurs, you may have a claim against the creditor for damages, or a defense against a deficiency judgment. Were you notified when the car was sold? Was the car sold in a "commercially reasonable manner"?

[Enigma]

See:

Mazzoni Farms, Inc. v. E. I. DuPont & Company, 761 So.2d 306 (Fla, 2000)[it is incumbent upon the parties seeking to avoid enforcement of choice law provisions required that the foreign law contravenes public policy of the forum jurisdiction].

[andrewv]

Are you talking about the georgia 4 year SOL for the sale of goods? I hired an attorney and he argued that point and we lost... I requested a rehearing and it was granted...
All aspects of this case were based in florida, I am only being sued in Georgia becuse I move here many years later.... I firmly belive the 5 year SOL of florida should apply BUT need proof for court...

Can you explain more about your thinking about the ucc 4 year SOL....

I belive I was notified correclty and it was sold correclty BUT I belive it was sold way under value... 13,000 deficency on a 27,000 6 month old car...

[andrewv]

Originally Posted by Enigma

See:

Mazzoni Farms, Inc. v. E. I. DuPont & Company, 761 So.2d 306 (Fla, 2000)[it is incumbent upon the parties seeking to avoid enforcement of choice law provisions required that the foreign law contravenes public policy of the forum jurisdiction].

Enigma,
Would your case law be admissable in Ga court or would I ne GA case law?

[Enigma]

Were you a resident of FL at the time of the repo?

[andrewv]

Originally Posted by Enigma

Were you a resident of FL at the time of the repo?

yes, I move to georgia 2 years later...