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HPlawyer, Attorney
Category: Legal
Satisfied Customers: 874
Experience:  GA Lawyer
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Can I file a motion to dismiss before an answer in gwinnett

Customer Question

Can I file a motion to dismiss before an answer in gwinnett county, GA this is a civil suit in magistrate court for an unknown credit card debt
Submitted: 7 years ago via ExpertLaw.
Category: Legal
Expert:  HPlawyer replied 7 years ago.
No, you need to file an answer first, and make sure you specifically DENY every allegation. Otherwise, it will be deemed admitted.
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Customer: replied 7 years ago.
Thank you for your response to my first question. This company originally sent me a letter dated 4/15/2010. It was postmarked 4/16 and I received it on 4/17. In the letter it stated that they assignee for another collector in turn for the original collector. The letter gave me 10 days to respond or they would take legal action. The next thing I know, I'm being served summons for a lawsuit on 4/20 without even getting the chance to request validation. I received another similar letter from this company today dated 5/4/10 asking me to respond withing 10 days or they will take legal action. It does not state any where in the letter that they are debt collectors. I don't know what this debt is from and I don't recall having a credit card by the original bank. Also I believe the SOL has passed since I know for sure that I haven't had an account with this bank at least in the last 4-5 years. My question is should I have not been give 30 days to request validation? Am I correct in understanding the SOL in GA to be 4 years on open accounts per the Truth In Lending Act Title 15 Chapter 41 Subchapter 1 Par A 1602? Can I take any action against this company for not allowing me sufficient time to request validation before filing a lawsuit.
Expert:  HPlawyer replied 7 years ago.
You are welcome.

Federal law (the Truth in Lending Act) does not necessarily govern when it comes to statutes of limitations; Georgia law governs.

Even in Georgia, however, open accounts have a 4 year statute of limitations. This is found in OCGA § 9-3-25. With that in mind, pursuant to OCGA § 9-3-24, written contracts have a 6 year statute of limitations, so the plaintiff may argue this is a breach of contract issue rather than an action on an open account.

You could counter-sue this company for violations of the Fair Debt Collection Practices Act (FDCPA) for the reasons you discussed above, but the case would likely be removed to federal court since the FDCPA is federal law. Federal Courts are very strict, so if you do want to do this (and it seems like a good idea), you may want to obtain a local civil litigation attorney to assist you-- especially in light of the fact that the FDCPA allows recovery for attorney's fees for pursuing a violation.