Shaw v. First National Bank of Chicago

143 Ga. App. 416 (1977) 238 S.E.2d 719

SHAW
v.
FIRST NATIONAL BANK OF CHICAGO.

54398.

Court of Appeals of Georgia.

Argued September 7, 1977. Decided September 20, 1977. Rehearing Denied October 5, 1977.

Joseph H. King, Jr., for appellant.

Lewis N. Jones, Leslie P. George, for appellee.

WEBB, Judge.

Cynthia A. Shaw appeals from the grant of a summary judgment to First National Bank of Chicago on a Bank Americard account. She charges as reversible error the grant of the summary judgment, and the trial court's denial of her motion to compel discovery. We find no error.

The debtor by answer attempted to set up a counterclaim that during the 12 months next prior to the commencement of the action, the bank had violated the Truth in Lending Act, 15 USCA § 1601 et seq. The bank's affidavit in support of its motion for summary judgment established the account as due and unpaid, and asserted that the last statement thereon was sent to the debtor on June 19, 1975. The complaint was filed October 4, 1976. Shaw sought to establish her defense and counterclaim solely by motion to compel discovery, but she filed no affidavit to challenge that of the bank, or to show why she could not present facts to justify her opposition.

"When a motion for summary judgment is supported by affidavits and other evidence the opposing party may not stand merely upon his pleadings, but has the burden of responding by affidavit or as otherwise provided in Code Ann. § 81A-156 (e). See Zappa v. Allstate Ins. Co., 118 Ga. App. 235, 236 (162 SE2d 911) (1968). The party opposing the motion may, by affidavit, show to the trial court reasons why he cannot present facts essential to justify his opposition. The court then may deny the motion or order a continuance to permit affidavits to be obtained or discovery to be had. Code Ann. § 81A-156 (f)." Clements v. Warner Robins Supply Co., 235 Ga. 612, 614 (4) (221 SE2d 35) (1975); Columbia Nitrogen Corp. v. Dean's Power Oil Co., 136 Ga. App. 879, 884 (1) (222 SE2d 602) (1975).

Furthermore, the last credit transaction having accrued more than one year prior to debtor's counterclaim for an alleged violation of the Truth in Lending Act, her claim was barred. 15 USCA § 1640 (e). See also subparagraph (h).

Judgment affirmed. Deen, P. J., and Birdsong, J., concur.