Time-Barred Debt Counterclaim

hello – you could title this as “Written Contract or Open Account” — having difficulty figuring out the SOL here in GA for credit cards.

According to many internet sites credit cards are considered open accounts and therefore the SOL for that state would apply. However i am being sued by a JDB here in Georgia and would like to know if I have an absolute defense or not – they are claiming breach of contract and state the debt is based on a ‘written contract’ [the credit card account]. GA SOL for open accounts is 4yrs, for written contracts 6yrs.

Are credit cards open accounts or written contracts in Georgia? Any ideas?

thanks! Many Regards,
GA Mom

[BTW-have learned some new ideas from your site on how to get my score cleaned up-thanks!]

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Hi GA MOM,

I’ll start by giving you the Stump The Experts award of the week.  Unfortunately, I lack the time/resources to provide quality answers to state law questions.  Any state specific statute of limitations question will win the Stump the Experts award – or simply won’t be answered – I’ll apologize in advance for that to any Broken Credit Bloggers.

I will take occasion to make two points regarding your question.  The Truth in Lending Act describes an “open end credit plan” as follows:

15 USC 1602 (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.

Of course you were correct in asking how Georgia courts interpret credit cards.  You’d have to research Georgia case law or better yet, contact the consumer lawyers at NACA.net for your answer.

And that brings me to my second point.  Perhaps there is a counterclaim against the junk debt buyer under the FDCPA for filing a time-barred suit.  National Consumer Law Center’s “Fair Debt Collection” Fifth Edition (page 166) notes:

The first court to address the issue held in a well-reasoned opinion that it is unfair under the FDCPA to file a time-barred collection suit against a consumer and deceptive to threaten to file such a suit.  The court found strong legal and ethical policies existed against filing suits after the statute of limitations had expired when the collector had no reason to believe the statute of limitations had been tolled…  For these reasons, the practice was unconscionable and unfair, violating 15 USC 1692f.

GA MOM, if your research finds a credible answer to your question then please report back and we will add it as a comment to this post.  Thanks for the questions!

Paul

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.

(source=law.justia.com/us/codes/title15/15usc1602.html)