Suing Your Creditors > Sample Pleadings

Affirmative Defense-Help

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KELLY-ROO:
Ok quick question...
When I answered my summons my exact wording was, "It is my understanding that the statute of limitations has expired on the credit agreement listed in the summons under GA law."

Now I know the major mistakes I have made thus far, #1, I did not request validation within the initial 30 days of receiving the summons which was their first contact to me. #2 I didn't do a general denial on the reply to the summons. #3 I didn't call it an alleged credit agreement, in my reply.

So now the question, I am residing in GA as stated above, the SoL for open accounts is 4yrs. So everyone has mentioned "Affirmative Defense based on SoL or time barred debt etc.
So is this something I have to file with the clerk? Like something that must be typed up and filed? Or is this somethng I have to say to the judge? Also if this is something I have to file with the clerk, would I also file a motion to dismiss or the judgement thing? I am trying to search through the GA codes and rules for civil procedure to find this info but I am getting literally nothing.
Help please! I am not asking for someone to do the leg work for me, or legal advice, just a good direction to get my working legs moving toward. I am suffering from legal jargin overload!!!! Thanks all :)

Rottweiler:
What you need to do is check the Rules to see if it is possible to just file an amended answer.  If not, move the court to allow you to do that; almost always, this will be allowed.  Then, include the SOL defense in the defenses section.  You don't need to cite the section of the law in the answer, but it can help.  Try looking under "Limitations", as well as try the Uniform Commercial Code in GA statutes if you can't find the information any other way.

(Sometimes, especially in Small Claims Courts, if a pro-se defendant puts out such a simple answer, it may work anyway, even as-is.  You did assert your major Affirmative defense--the account is out-of-statute--what you lose is other defenses you could raise, and any counterclaims.  That's why filing an amended answer is so important if you can do so.)

Don't worry about calling it an alleged debt by the time it gets to court.  That phrasing is to avoid admitting to liability during the collections process outside of court.  In court, they need to, as plaintiffs, prove you are liable...mere hearsay (which your words would be) won't "do".

Not asking for timely validation only, at worst, precludes some violations under the FDCPA.  If the attorney was hired solely to sue for the debt, and is not a debt collector, even that does not apply.

E. Normis Debtor:
Below are the GA codes on SOL. They will likely claim the SOL is 6 years under 9-3-24. You will need to claim the shorter SOL and make them prove the longer applies.

9-3-24
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.

9-3-25.
All actions upon open account, or for the breach of any contract not under the hand 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

http://www.legis.state.ga.us/cgi-bin/gl_codes_detail.pl?code=9-3-24

http://www.legis.state.ga.us/cgi-bin/gl_codes_detail.pl?code=9-3-25

 

KELLY-ROO:
Thank you both!
So the new answer, if I can amend would read something similar to
Affirmative Defense NO. 1:
Pursuant to OCGA 9-3-25, this action is time-barred

Affirmative defense NO. 2:
? LOL ? I have no idea, need some samples of other useful ones. <~ skimming past posts also for examples.
What is the difference between an affirmative defense and a plain ol defense?

Also, should I be skimming cases in GA to find some where a credit agreement was ruled an open account and not a simple contract in writing? Any ideas on websites to check out for this type of thing? I would hit the law library but with 3 small kiddos and no childcare, I am sure they would toss the 4 of us out on our patoots. :D

Also can they prove this matter would fall under 9-3-24, if they have no such contract in their possession? Which is what i am keeping my fingers crossed for!

Rottweiler:
Think of the term "affirmative" as meaning "in favor of the Defendant".  In other words, something that favors you and your argument that you have that the court must decide the issue in your favor because the Plaintiff has no case (CoA) against you.  Such as the SOL argument you need to raise here:  They no longer have the right to sue because they waited too long and the law prohibits them from doing so.  Your defense is legalese for "They sued me, Judge!  They can't... they waited too long, too bad.  The law says so!  Nanananana!! :P"

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