collections in ga

[wanda.brown]

What is the name of your state? GA
My husband was incarcerated in April 1993. Before the incarceration he made a loan from a local bank in the amount of $ 4,664.82 for an automobile loan. During his incarceration his brother went and picked up the car and returned it to the bank where it was financed. The bank loan officer at the time told his brother that the account was paid and settled. My husband was released in September 1995 and since this his brother has passed away and the loan officer is no longer with the bank. He has heard nothing out of this and it has now been 13 years since the loan occured. He has been released for 11 years and he recently received a letter from the bank concerning this. He has heard nothing about this for 11 years until now. He was turned over to the local magistrate court for collection. Do we have any legal options? My husband is a pastor of a small church and he also draws disability from social security monthly. Please advise.

[Chien]

Even if your state is one of the minority that considers the SOL suspended during a period of incarceration, the SOL has expired since your husband has been out.

Unless a judgment was taken after the vehicle was returned, it would appear that your spouse has an absolute defense to any litigated effort to enforce liability. If litigation occurs, he must respond and assert that defense or it's treated as waived. But from the facts included in your post, I don't know what more to suggest except, perhaps, determine what "turned over to the local magistrate court for collection" means.

Is there a case pending? Has he been served? Whether or not he has, you have to determine the date that the claim is alleaged to have arisen. Then, perhaps we'll all know more about what options exist.

[wanda.brown]

Originally Posted by Chien

Even if your state is one of the minority that considers the SOL suspended during a period of incarceration, the SOL has expired since your husband has been out.

Unless a judgment was taken after the vehicle was returned, it would appear that your spouse has an absolute defense to any litigated effort to enforce liability. If litigation occurs, he must respond and assert that defense or it's treated as waived. But from the facts included in your post, I don't know what more to suggest except, perhaps, determine what "turned over to the local magistrate court for collection" means.

Is there a case pending? Has he been served? Whether or not he has, you have to determine the date that the claim is alleaged to have arisen. Then, perhaps we'll all know more about what options exist.

I do not understand what you mean when you tell me that the SOL has expired. There was no judgement taken when the vehicle was returned. He was told by the bank today that there was no record as to when the vehicle was sold after he surrendered it back to the bank or how much it was sold for. The local magistrate is the probate court. He was served and was told that he has 30 days to respond to this and a hearing will be held. The loan orginated in April of 93 and the bank filed papers against him on the 22nd of this month within the probate court. It is our understanding that this is a civil suit.

[wanda.brown]

Originally Posted by Chien

Even if your state is one of the minority that considers the SOL suspended during a period of incarceration, the SOL has expired since your husband has been out.

Unless a judgment was taken after the vehicle was returned, it would appear that your spouse has an absolute defense to any litigated effort to enforce liability. If litigation occurs, he must respond and assert that defense or it's treated as waived. But from the facts included in your post, I don't know what more to suggest except, perhaps, determine what "turned over to the local magistrate court for collection" means.

Is there a case pending? Has he been served? Whether or not he has, you have to determine the date that the claim is alleaged to have arisen. Then, perhaps we'll all know more about what options exist.

I do not understand what you mean when you tell me that the SOL has expired. There was no judgement taken when the vehicle was returned. He was told by the bank today that there was no record as to when the vehicle was sold after he surrendered it back to the bank or how much it was sold for. The local magistrate is the probate court. He was served and was told that he has 30 days to respond to this and a hearing will be held. The loan orginated in April of 93 and the bank filed papers against him on the 22nd of this month within the probate court. It is our understanding that this is a civil suit.

[debtcollector`]

I am going to upset you.

You need to decide which is better for you: Paying the debt or paying a lawyer.

The facts as I see them:
You and your husband are not capable of defending this yourselves. If you try, you will lose.
If the cost of paying a lawyer is higher than the cost of paying the debt, it would make sense to pay the debt. And if the cost of paying a lawyer is less than the cost of the debt, it would make legal sense to pay the lawyer.

What about the moral responsiblility for paying one's debts? Just something I would think a pastor should think about.

That said, I don't see any way out of this for you without paying somebody or learning a lot court procedures in a short period of time.

DC

[Chien]

(Well, debtorcollector has responded while I was composing, but it appears we have basically the same opinions to share as far as involving a lawyer.)

OP - The Statute of Limitations (SOL) is the maximum amount of time allowed to file litigation for an alleged civil or criminal injury. In Georgia, the SOL for a breach of a written contract is 6 years. It starts to run when there is a payment default - a failure to make payment(s) according to the contract requirements.

If the vehicle was returned when your husband was incarcerated and payments stopped at that approximate time and your husband has been released for 11 years, it seems to me that the 6-year SOL must have necessarily expired. If the SOL has expired, the bank has lost it's legal power to enforce a claim for money owing on the contract. But, if the bank has filed suit on the contract after the SOL has expired, your husband must formally respond to (answer) the law suit and assert or claim that defense. If he does not, he will not receive the benefit of its protection.

I wondered about a judgment having been taken after the vehicle was returned because there would be a new and different SOL on the judgment. It seemed unlikely in view of the facts that you provided, but I had to ask.

For the same reason, I wanted to make sure that what was going on at the magistrate court was indeed a new civil suit.

Given the information that you've provided, it seems to me that it cannot be successfully maintained against your husband. However, there still may be information that has not come out, and I think it would be wise for your husband to discuss this matter with a local attorney as well.