O.C.G.A. § 9-3-111 (2019)

Annotations

JUDICIAL DECISIONS Bankruptcy of debtor does not extinguish debt, but merely operates as a bar to an action thereon. Oglesby v. Trust Co., 47 Ga. App. 749, 171 S.E. 393, 1933 Ga. App. LEXIS 703 (1933). Debt discharged in bankruptcy is not extinguished but only barred. Such a debt can be reassumed. Siefferman v. Peppers, 159 Ga. App. 688, 285 S.E.2d 61, 1981 Ga. App. LEXIS 2771 (1981). Requirements of agreement. - If creditor is to successfully invoke reassumption agreement in order to enforce obligations of a bankrupt on a debt discharged in bankruptcy, agreement to reassume must be clear, express, distinct, unequivocal, and without qualification or condition. Peppers v. Siefferman, 153 Ga. App. 206, 265 S.E.2d 26, 1980 Ga. App. LEXIS 1751 (1980). Promise made after adjudication but before discharge. - Promise by debtor made after adjudication as a bankrupt but before discharge will not be impaired by subsequently acquired discharge, as discharge relates back to adjudication in bankruptcy. Moore v. Trounstine, 126 Ga. 116, 54 S.E. 810, 1906 Ga. LEXIS 344 (1906); Dicks v. Andrews, 132 Ga. 601, 64 S.E. 788, 1909 Ga. LEXIS 369 (1909); Bank of Elberton v. Vickery, 20 Ga. App. 96, 92 S.E. 547, 1917 Ga. App. LEXIS 734 (1917). While promise by debtor, made after adjudication as a bankrupt but before discharge, will not be impaired by subsequently acquired discharge, as the discharge relates to the adjudication, such promise must be clear, express, distinct, unequivocal, and without qualification or condition before it will be enforceable against the bankrupt. Oglesby v. Trust Co., 47 Ga. App. 749, 171 S.E. 393, 1933 Ga. App. LEXIS 703 (1933). Acquiescence that discharged debt is “owing” is insufficient to overcome effect of discharge in bankruptcy when discharge has been set forth in an affirmative defense to an action on the debt.

Peppers v. Siefferman, 153 Ga. App. 206, 265 S.E.2d 26, 1980 Ga. App. LEXIS 1751 (1980). Promissory note held sufficiently specific. - When written promise to revive debt otherwise barred by bankruptcy is in the form of a promissory note, made out to creditor, for balance due on the debt, and there are no circumstances authorizing any other conclusion, the promise is sufficiently specific to be enforceable. Waters v. Lanier, 116 Ga. App. 471, 157 S.E.2d 796, 1967 Ga. App. LEXIS 855 (1967). Although executory contract does not remain in force after one party has received a discharge in bankruptcy, parties may, by subsequent acquiescence in its terms and performance of its conditions, elect to treat such contract as still subsisting. Fairmont Creamery Co. v. Collier, 21 Ga. App. 87, 94 S.E. 56, 1917 Ga. App. LEXIS 440 (1917). Credit entered and signed by maker upon promissory note is acknowledgment of the debt as existing at the time of entry and operates as a new promise. Siefferman v. Peppers, 159 Ga. App. 688, 285 S.E.2d 61, 1981 Ga. App. LEXIS 2771 (1981). Endorsement of checks with debt payments deducted. - When a debtor discharged in bankruptcy had without complaint endorsed and cashed checks from which were expressly deducted payments to the debtor’s old debt, such written acquiescence might amount to a new contract to pay the debt. Siefferman v. Peppers, 159 Ga. App. 688, 285 S.E.2d 61, 1981 Ga. App. LEXIS 2771 (1981). Amendment of pleadings. - When action is brought upon a debt and defendant pleads discharge in bankruptcy, plaintiff may amend the plaintiff’s petition by alleging a new promise to pay, made in compliance with this section. Shumate v. Ryan, 127 Ga. 118, 56 S.E. 103, 1906 Ga. LEXIS 766 (1906); Beasley v. Padgett, 28 Ga. App. 268, 110 S.E. 739, 1922 Ga. App. LEXIS 441 (1922).

RESEARCH REFERENCES Am. Jur. 2d. 51 Am. Jur. 2d, Limitation of Actions, §§ 284 et seq., 318 et seq. ALR. What amounts to promise to pay which will avoid effect of discharge in bankruptcy, 75 A.L.R. 580. Effect of subsequent acceptance of note or other contractual obligation in pay-

ment, or as evidence, of claim not otherwise barred by discharge in bankruptcy, 145 A.L.R. 1238. Constitutionality, construction, and application of statute modifying or limiting effect of acknowledgment, payment, or other conditions to toll or extend the period of limitation with respect to mortgage foreclosure, 150 A.L.R. 134.