IN THE STATE COURT FOR THE COUNTY OF GWINNETT STATE OF GEORGIA MIDLAND FUNDING LLC ASSIGNEE, OF CHASE BANK(USA), N.A. : Plaintiff, : ys. : CIVIL ACTION FILE : NO. 10-7271-4 JILL SHERIDAN : Defendant. MOTION TO DISMISS COUNTERCLAIM COMES NOW Plaintiff, by and through counsel, and hereby moves this Honorable Court to Dismiss Defendant's Counterclaim as such counterclaim is procedurally incorrect and must therefore be dismissed as a matter of law. Plaintiff provides the following in support thereto: STATEMENT OF THE CASE This complaint was filed by Plaintiff to collect outstanding debts due and owing by Defendant. Defendant answered the complaint and set forth a counterclaim seeking attorney fees as a result of Plaintiff's filing the present complaint. However, Plaintiff shows the Court that a claim for attorney's fees in the manner set forth in Defendant's counterclaim cannot be maintained pursuant to the relevant provisions of Georgia law. ‘The provisions of Georgia law which do provide for an award of attorney's fees in the manner suggested by Defendant have either not been satisfied or are otherwise inapplicable. Indeed, a claim for attorney's fees pursuant to § 9-15-14 cannot be madevia counterclaim; and attorney's fees pursuant to § 13-6-11 are only permitted where there is an independent, viable counterclaim. In other words, § 13-6-11 is a completely supplementary vehicle for Defendants and is not a counterclaim in-of-itself. Further, the Georgia legislature long ago abolished “common law counterclaims” for abusive or bad faith litigation with the enactment of O.C.G.A. § 51-7-80 et seq.; and Defendant has otherwise failed to set forth any other statutory authority under which he might be entitled to attorney’s fees merely for defending a lawsuit. Plaintiff therefore shows the Court that the provisions of Georgia law which provide for an award of attorney’s fees in the manner set forth by Defendant have not been satisfied or are otherwise inapplicable. Plaintiff asserts that Defendant's counterclaim for attorney's fees is procedurally incorrect and must therefore be dismissed. Plaintiff provides the following in support thereto: ARGUMENT AND CITATION OF AUTHORITY Under Georgia law, a motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. English v. Liberty Mtg. Corp., 205 Ga. Frederick J. Hanna & Associates, P.C. 1427 Roswell Road Marietta, Georgia 30062 Ph: 70.988-9055 Fx: 770.980.0528App. 141 (1992); Little v. Fleet Finance et al, 224 Ga. App. 498 (1997); Mooney v. Mooney, 235 Ga. App. 117 (1998). As stated above, Defendant is seeking “bad faith” or abusive litigation attorney's fees. Firstly, Plaintiff shows the Court that the courts of this state have repeatedly and consistently held that “[a] claim for 0.C.G.A. § 9-15-14 attorney fees and litigation costs must be made by motion, not by answer or counterclaim.” Langley v. Nat’) Labor Group, Inc., 262 Ga. App. 749. [Emphasis Added]. Second, the courts have further held that “[a] defendant may only assert a counterclaim under 0.C.G.A. § 13-6-11 if it has a viable independent counterclaim.” Id. at 754. Otherwise, the courts and legislature long ago abolished any such common law “abusive litigation counterclaims” and specifically vested such relief or cause of action within the parameters of § 51-7-80 et seq. Specifically, 0.C.G.A. § 51-7-85 provides that: “On and after April 3, 1989, no claim other than as provided in this article or in Code Section 9-15-14 shall be allowed, whether statutory or common law, for the torts of malicious use of civil proceedings, malicious abuse of civil process, nor abusive litigation, provided that claims filed prior to such date shall not be affected. This article is the exclusi abusive litigation.” 0.C.G.A. § 51-7-85 (2008). [Emphasis Added]. The courts interpreting § 51-7-80 et seq. have held that: “[Blefore filing such claims, defendants were required to provide [plaintiff] written notice of such intention by registered or certified mail ... [and] before defendants could file such claim, 0.C.G.A. § 51-7-84(b) required a final termination in defendant's favor of the action allegedly constituting abusive litigation. Langley, 262 at 749, 754 citing Jacobs v. Littleton, 241 Ga. App. 403 (1999). [Emphasis Added]. Frederick J. Hanna & Associates, P.C. 1427 Roswell Road Marietta, Georgia 30062 Ph: 770.988-9055 Fx: 770.980.0528‘Thus, the Georgia legislature has specifically prescribed that a claim based in abusive litigation must fall within the parameters of 0.C.G.A. § 51-7-80 et seq. and excepted only § 9-15-14 — yet the Georgia courts have repeatedly and consistently held that relief via § 9-15-14 simply cannot be brought via counterclaim. Langley, 262 at 749, 754. As cited supra, an action based under § 51-7-80 et seq. cannot be made until and unless an action has been terminated in a defendant's favor and the notice provisions of that section have been satisfied. In the case at bar, Defendant has not provided an abusive litigation notice pursuant to 0.C.G.A. § 51-7-80 et. seq.; and the instant action has not been terminated in Defendant's favor. And again, a counterclaim based in 0.C.G.A. § 9-15-14 simply is not proper; and Defendant has not set forth an independent, viable counterclaim pursuant to the provisions of 0.C.G.A. § 13-6-11. Accordingly, Plaintiff asserts that Defendant has failed to state a claim upon which relief may be granted as there is no set of provable facts whereby Defendant can obtain § 9-15-14 attorney’s fees via counterclaim; nor is there any set of provable facts whereby Defendant can obtain § 13- 6-11 attorney's fees without an independent, viable counterclaim. Lastly, Defendant's common law claim for attorney's fees for bad faith litigation also fails as the Georgia legislature specifically restricted claims for abusive litigation to the provisions set forth in § §1-7-80 et seq.; and as cited supra, any such action is premature and cannot be set forth via counterclaim. See 0.C.G.A. § 51-7-85. Frederick J. Hanna & Associates, P.C. 1427 Roswell Road Marietta, Georgia 30062 Ph: 70.988-9055 Fx: 770.980.0528Thus, as an award of attorney's fees for abusive litigation, bad faith litigation, or frivolous litigation is entirely statutorily based and there is no common law cause of action for bad faith litigation, and because Defendant has failed to comply with any of the statutes that do provide such relief, Plaintiff asserts that Defendant cannot introduce evidence within the framework of his counterclaim sufficient to warrant a grant of the relief he seeks. English v, Liberty Mtg. Corp., 205 Ga. App. 141 (1992); Little v, Fleet Finance et al, 224 Ga. App. 498 (1997); Mooney v. Mooney, 235 Ga. App. 117 (1998). CONCLUSION WHEREFORE, based upon the foregoing, Plaintiff hereby moves this Honorable Court to dismiss Defendant's counterclaim with prejudice and any other such relief as which this Court deems just and proper. Plaintiff has provided a proposed order for the Court's consideration. Ware 2010, Respectfully submitted this FREDERICK J. HANNA & ASSOCIATES, P.C. ATTORNEYS FOR PLAINTIFF Frederick J. Hanna & Associates, P.C. 1427 Roswell Road Marietta, GA 30062 Ph.: 770.988.9055 Fax: 770.980.0528IN THE STATE COURT FOR THE COUNTY OF GWINNETT STATE OF GEORGIA MIDLAND FUNDING LLC ASSIGNEE OF CHASE BANK(USA), N.A. Plaintiff; ws. : CIVIL ACTION FILE : NO. 10-7271-4 JILL SHERIDAN : Defendant. : CERTIFICATE OF SERVICE I hereby certify that a copy of Plaintiffs MOTION TO DISMISS COUNTERCLAIM has been served upon the following by mailing a copy via First Class Mail, properly addressed with proper postage to address of record: TED SILVERBACH 3330 COBB PARKWAY SUITE 17 ACWORTH GA 30101 This the (> _ day o&K NO t , 2010. FREDERICK J. HANNA & ASSOCIATES, P.C. ATTORNEYS FOR PLAINTIFF Frederick J. Hanna & Associates, P.C. 1427 Roswell Road Marietta, GA 30062 Ph.: 770.988.9055 Fax: 770.980.0528IN THE STATE COURT FOR THE COUNTY OF GWINNETT STATE OF GEORGIA MIDLAND FUNDING LLC ASSIGNEE OF CHASE BANK(USA), N.A. : Plaintiff, vs. : CIVIL ACTION FILE : NO. 10-7271-4 JILL SHERIDAN : Defendant. ; ORDER DISMISSING COUNTERCLAIM WHEREFORE, in consideration of Plaintiff's Motion to Dismiss Defendant's Counterclaim, and upon consideration of the pleadings, it appearing to this Honorable Court that Defendant's counterclaim cannot be maintained as a matter of law, it is hereby ORDERED and ADJUDGED that Plaintiff's motion shall be GRANTED and Defendant's Counterclaim is hereby DISMISSED WITH PREJUDICE. SO ORDERED this day of. , 2010. JUDGE STATE COURT OF GWINNETT COUNTY fa Bar No. 142250 ‘Attorneys for Plaintiff Frederick J. 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