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FL 4 YEAR SOL - CASE LAW upholds it !!

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YES !! There is now case law in a FL circuit court that supports the 4 year SOL on credit cards !!! Actually, since the case involved a Sears account it may be limited to 'store cards', but it's a victory nonetheless. Palisades tried the usual 5 year SOL as 'written instrument', the circuit court disagreed on appeal.

Here is the case:

PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES, Appellee_ Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County

13 Fla. L. Weekly Supp. 560a

Contracts -- Credit agreement -- Limitation of actions -- No error in dismissal of statement of claim for breach of contract, account stated, and unjust enrichment for debt incurred on credit card based on expiration of four-year statute of limitations -- Construction of conflicting statutory provisions establishing five-year limitations period to recover on contract founded on written instrument and four-year limitations period to recover on liability not founded on written instrument and on store accounts requires that store accounts be subject to four-year statute of limitations whether or not founded on written instrument -- Further, action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes

PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v. PAUL FERNANDES, Appellee. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County. Case No. 502005AP000032XXXXMB, Division ‘AY'. March 6, 2006. Appeal from County Court, in and for Palm Beach County, Judge Nancy Perez. Counsel: Leslie Mark Schneider, Hayt, Hayt & Landau, Miami, for Appellant. Paul Fernandes, Boca Raton, pro se.

(PER CURIAM.) Appellant, Portfolio Recovery Associates, LLC (“Portfolio”), sued Appellee, Paul Fernandes, as the alleged assignee of a debt incurred by Fernandes to Sears National Bank on a Sears credit card. Portfolio filed a statement of claim under the Small Claims Rules for breach of contract (Count 1), account stated (Count 2), and unjust enrichment (Count 3), claiming $3,201.06 in damages.

Fernandes orally moved to dismiss the claims as outside the statute of limitations at the pretrial conference. See Rule 7.090©, Fla. Sm. Cl. R. Portfolio argued that Florida Statute §95.11(2)(B), which provides for a five year statute of limitations, governed because the statement of claim alleged a cause of action to recover on a contract founded on a written instrument. Fernandes argued that Florida Statute §95.11(3)(k), which provides for a four year statute of limitations, governed because the action was not founded on a written instrument or was on a store account. The trial court dismissed the case based on its finding that the credit card account was an open account subject to the four year statute of limitations.1

Portfolio argues that the trial court erred when it dismissed the statement of claim based on a finding that the claim was barred by the four year statute of limitations. We disagree.2

An order dismissing a complaint is reviewed de novo. See City of Hollywood v. Petrosino, 864 So.2d 1175 (Fla. 4th DCA 2004). The claim must be taken as true and considered in the light most favorable to the plaintiff, subject to the trial court's ability to summarily dispose of small claims actions if no triable issue exists. See Bryant v. Adventist Health Systems Sunbelt, Inc., 869 So.2d 681 (Fla. 5th DCA 2004); Rule 7.135, Fla. Sm. Cl. R.

The nature of the claim, and not the specific form of action selected by a plaintiff to assert it, determines the applicable statute of limitations. See 20 Am. Jur. 2d, Credit Cards, §46 (2005). In Count 1, Portfolio alleged that Fernandes “by execution of the application and/or by use of the credit card, accepted the terms and conditions of the credit card holder agreement” attached as Exhibit A. Attached as Exhibit A was a copy of a document entitled “Sears Credit Card Account Sears Premium Card Account Cardholder Account and Security Agreement.”

Section 95.11(2)(B), Fla. Stat., provides that the statute of limitations on actions to recover on a contract founded on a written instrument is five years. Conversely, section 95.11(3)(k), Fla. Stat., provides that the statute of limitations to recover on a contract, obligation or liability not founded on a written instrument and on store accounts is four years.

When construing statutes, the specific controls over the general. See Northwest v. Balkany, 727 So. 2d 382 (Fla. 5th DCA 1999). Thus, if a claim arguably falls within two contradictory subsections of the statute, the more specific controls. Even if Count 1 could be deemed an action founded on a written instrument, it can also be deemed an action on a store account. See 20 Am. Jur. 2d, Credit Cards, §46 (2005); Carte Blanche Corporation v. Pappas, 216 So. 2d 917 (La. 2d Cir. 1968).3 Store accounts have been subject to a separate statute of limitations since 1872. Laws of Florida 1872, c. 1869, §10; McClellan's Digest, §10, p. 733. “The provision is for the benefit of those who have stores, and keep goods therein for sale, and sell them, keeping accounts against the purchasers and relying upon their books of accounts in which the articles are charged as evidence in case of controversy,” and applies whether there is an express or implied agreement covering the charges. Saloman v. The Pioneer Co-operative Company, 21 Fla. 374, 385, 1885 WL 1777 (Fla. 1885). The current grammatical structure, which provides for the limitations period on actions “upon a contract . . . not founded upon an instrument of writing, including an action for goods, wares and merchandise sold and delivered, and on store accounts,” has been used since 1919. (emphasis supplied). Laws of Florida 1919, c. 7838, §10, subd.9. “. . . ©lauses separated by commas are nonrestrictive clauses intended to introduce independent concepts.” Amendments to the Florida Rules of Appellate Procedure, 696 So. 2d 1103, 1108, footnote 6 (Fla. 1996) (Anstead concurring) (quoting brief); see, also, The Elements of Style, Struck and White, 3rd Ed., p. 5 (“(p)lace a comma before a conjunction introducing an independent clause”). Thus store accounts are subject to a four year statute of limitations whether or not founded on a written instrument. See Saloman, supra; Wagner v. Botts, 88 So. 2d 611, 613 (Fla. 1956) (“(h)istorically, parliamentary enactments originally were not punctuated at all. However, the Legislatures of our country have consistently attempted to follow the rules dictated by grammar books with the result that statutes are now punctuated prior to enactment. The better rule now seems to be that punctuation is a part of the Act and that it may be considered in the interpretation of the Act but may not be used to create doubt or to distort or defeat the intention of the Legislature . . . We deem it proper to adhere to what now appears to be the better rule which is to treat the rules of punctuation on a parity with other rules of interpretation.”); Broward Builders Exchange, Inc. v. Goehring, 231 So. 3d 513, 515 (Fla. 1970) (“(i)t cannot now be assumed that the Legislature was unfamiliar with this simple rule of punctuation . . .”). Store accounts, of course, as a species of open accounts, may be based on either a written or oral agreement. See Robert W. Gottfried v. Cole, 454 So. 2d 695 (Fla. 4th DCA 1984); Hawkins v. Barnes, 661 So. 2d 1271 (Fla. 5th DCA 1995).

Count 1 alleges that Fernandes bound himself to the terms of the Cardholder Account and Security Agreement either when he executed an application for a Sears card or when he used a Sears card. If the Cardholder Account and Security Agreement alone were introduced into evidence at trial, though, it would not be sufficient to establish Fernandes' liability. See Colorado National Bank of Denver v. Story, 261 Mont. 375, 862 P. 2d 1120 (Mont. 1993). By itself, it created no liability for Fernandes.4 Instead, it addressed the manner in which a liability which might be later created should be discharged.5 If evidence of liability is partially in writing but the writings are incomplete to establish liability, then the contract is regarded as oral for statute of limitations purposes. See ARDC Corporation v. Hogan, 656 So. 2d 1371 (Fla. 4th DCA 1995), rev. den. 666 So. 2d 143 (Fla. 1995); Multi-Line Claims Service, Inc. v. Cumis Insurance Society, Inc., 739 So. 2d 144 (Fla. 3d DCA 1999) (four years statute of limitations for breach of oral contract applied to action on oral contract for adjusting services, though parties agreed to compensation based on a written fee schedule); Johnson v. Harrison Heardware Furniture Co., 119 Fla. 479, 472, 160 So. 878 (1935) (“(t)he writings attached to, relied on, and made a part of, the second amendment to plaintiff's replication do not on their face constitute a contractual acknowledgment of the loan of any money by plaintiff to defendant, which is the thing sued for, therefore such writings per se can avail nothing to plaintiff as a sufficient preclusion of the bar of the three-year statute of limitations [applicable to actions not founded upon an instrument in writing.] . . .”); Gulf Life Inc. Co. v. Hillsborough County, 129 Fla. 98, 104, 176 So. 72 (1937) (“(i)n order that a contract be founded upon a written instrument, the instrument must contain a contract to do the thing for the nonperformance of which the action is brought.”); Ball v. Roney, 112 Fla. 186, 150 So. 240 (1933); Schrank v. Pearlman, 683 So. 2d 559 (Fla. 3d DCA 1996), rev. den. 691 So. 2d 1081 (Fla. 1997).6 The action is not founded on a written instrument for statute of limitations purposes.7

The legislative scheme makes sense. See Bush v. International Fidelity Ins. Co., 834 So. 2d 212 (Fla. 4th DCA 2002), rev. den. 847 So. 2d 976 (Fla. 2003) (statutory provisions to be given reasonable and logical construction). “. . . (S)tatutes of limitations are designed to prevent undue delay in bringing suit on claims and to suppress fraudulent and stale claims from being asserted, to the surprise of parties or their representatives, when all the proper vouchers and evidence are lost, or the facts have become obscure from the lapse of time or the defective memory or death or removal of [a] witness.” Foremost Properties, Inc. v. Gladman, 100 So. 2d 669, 672 (Fla. 1st DCA 1958), cert. den. 102 So. 2d 728 (Fla. 1958) (citation omitted).

A review of the statute shows, consistent with common sense, that those actions on which proof is less likely to deteriorate over time are subject to longer limitations periods; those actions on which proof is more likely to deteriorate because of faulty memory or otherwise are subject to shorter limitations periods. Unlike a written contract containing all the terms sued on, proof of the balance due under a store credit card depends on the correctness of the store's books. We know, though, that record keepers come and go; purchased items are returned or exchanged; and partial payments are made. Proof of the amount due under a store credit card is simply not as secure as proof of the amount due on, for example, a promissory note that contains in writing all the terms of the parties' undertakings. See Nardone v. Reynolds, 333 So. 2d 25, 36 (Fla. 1976), mod. on other grds., Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993) (unfair to allow one who has slept on his rights to sue a party “ ‘. . .who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses' ”); Allie v. Ionata, 503 So. 2d 1237 (Fla. 1987).

Because Count 1 alleges a claim on a store account; because it does not allege a claim to recover on a contract founded on a written instrument; because under the Small Claims Rules the trial court properly inquired into undisputed facts at the pre-trial conference that would be dispositive of the claims; and because the trial court properly found that the claims raised in Counts 2 and 3 of the statement of claim were likewise subject to a four year limitations period, which Portfolio does not dispute, it is

ORDERED AND ADJUDGED that the trial court's judgment is AFFIRMED. (SMITH, MAASS and STERN, JJ., concur.)

__________________

1Apparently the trial court summarily disposed of the statement of claim on being apprised of the last payment date. See Rule 7.135, Fla. Sm. Cl. R.

2On appeal from an order of dismissal an appellate court may consider only issues presented to the trial judge. See Sparta State Bank v. Pape, 477 So. 2d 3 (Fla. 5th DCA 1985). This Court agrees with the trial court's decision to dismiss Counts 2 and 3 of the statement of claim. Neither party has taken issue with the trial court's decision to dismiss those counts. Portfolio concedes its claims are precluded if subject to the four year limitations period.

3Portfolio alleges it is the assignee of Sears National Bank, an affiliate of Sears, Roebuck and Co. See preamble to Cardholder Account and Security Agreement; 12 U.S.C. § 1841(k) (“. . .the term ‘affiliate' means any company that controls, is controlled by, or is under common control with another company.”) Under the Competitive Equality Banking Act of 1987, Sears could own a credit card bank without violating the Bank Holding Company Act of 1956 and thus charge a nationwide uniform rate of interest on credit card sales. See, also, Marquette Nat'l Bank v. First Omaha Serv. Corp., 439 U.S. 299, 99 S. Ct. 540 (1978).

4Portfolio implicitly recognized this when it incorporated elements of a claim for account stated in Count 1. See Paragraphs 8, 9, statement of claim; Merrill-Stevens Dry Dock Co. v. “Corniche Express”, 400 So. 2d 1286 (Fla. 3d DCA 1981).

5No statement of account was attached to the statement of claim.

6The cited cases are distinguishable from those where the written instrument obligated the debtor to purchase defined goods or services and pay for them at a contemporaneously determined or determinable rate. Compare, e.g., McGill v. Cockrell, 88 Fla. 54, 101 So. 199 (1924); Mercy Hospital, Inc. v. Carr, 297 So. 2d 598 (Fla. 3d DCA 1974), cert. den. 307 So. 2d 448 (Fla. 1974).

7For example, assume Smith agrees in writing with Jones that if Jones loans him money Smith will repay it with 10% interest. If Jones later sues Smith claiming Smith borrowed money and did not repay it, whether Smith is liable to Jones is dependent on whether and how much he borrowed. Suit to recover the money loaned is not founded on a written instrument. See Johnson v. Harrison Hardware & Furniture Co., supra.

* * *

Thanks to enigma on creditboards for posting this !!

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Hi,

I am writing up my affirmative defenses and am using the Florida 4 year oral sol.

. For and as a ###### Affirmative Defense, Plaintiff's actions are precluded by the Statute of Limitations.

(a) Paragraph #3 of the complaint states the charge off date or the date of purchase is January #, 2002

(B) The Plaintiff did not purchase the debt before the charge off date.

© As stated in the Plaintiff’s complaint the charge off date is on or before January #, 2002

(d) Plaintiff’s written evidence is incomplete to establish liability.

(e) Oral testimony will be required to make complete the showing of any alleged legal liability incurred by defendant.

(f) Plaintiff's actions are precluded by the Statute of Limitations §95.11 (3).

It this the best way to present this?

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Hi, added case law and a few other things. Is this more correct?

XX. For and as a Twenty-Second Affirmative Defense, Plaintiff's actions are precluded by the Statute of Limitations, including but not limited to the following.

(a) Paragraph #3 of the complaint states the charge off date or the date of purchase is January x, 2002.

(B) The Plaintiff did not purchase the debt before the charge off date.

© As stated in the Plaintiff’s complaint the charge off date is on or before January x, 2002.

(d) The computation of time as provided for in F.S. §95.031 starts before the charge off date.

(e) Plaintiff’s written evidence is incomplete to establish liability.

(f) Oral testimony will be required to make complete the showing of any alleged legal liability incurred by defendant.

(g) The following case law applies:

(1)"...action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes." PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13 Fla. L. Weekly Supp. 560a 2006

(2)"Where resort to oral testimony was compelled to make complete the showing of any legal liability incurred by defendant arising out of letter concerning sale of plaintiff's stock, timeliness of plaintiff's action to recover for breach of contract to sell the shares and remit proceeds to him was governed by Florida's three-year limitation period governing actions on oral contracts, rather than the five-year period governing actions on written contracts."

Klein v. Frank, 534 F.2d 1104. C.A.5 1976.

(h) Plaintiff's actions are precluded by the Statute of Limitations F.S. §95.11 (3).

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Actually, this is a gem as well:

If the Cardholder Account and Security Agreement alone were introduced into evidence at trial, though, it would not be sufficient to establish Fernandes' liability. See Colorado National Bank of Denver v. Story, 261 Mont. 375, 862 P. 2d 1120 (Mont. 1993). By itself, it created no liability for Fernandes.4 Instead, it addressed the manner in which a liability which might be later created should be discharged.

This kind of sounds like we are defining validation, are we not?

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Here is some more florida case law...

“Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete, in applying the statute of limitations it must be treated as an oral contract.”

McGill v. Cockrell, 101 So. 199 (Fla. 1924) Id. at 201.

“Contract action is not founded upon written instrument, for purpose of statute of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff’s claim.” ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.

“Where there is an affirmative obligation expressed in writing to do the act for the nonperformance of which an action is brought and the writing is signed by the party to be charged and there is consideration for the promise, there is a contractual obligation in writing subject to five-year statute of limitations.”

Mercy Hospital, Inc. v Carr, 297 So.2d 598 (Fla. App. 3 Dist. 1974)

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It doesn't for ALL cards, but I think it nails it pretty good on STORE cards -which was the type of card in question.

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It doesn't for ALL cards, but I think it nails it pretty good on STORE cards -which was the type of card in question.

That is why I posted the thread as I have seen newbies here and at other boards seemingly confused about how it's now the rule for all cards. It's a really good win over PRA though. Would of loved to have been there to watch it play out!

Have you noticed that Floridians seem to get sued more often than any other state if you go by who's posting on the debtor boards?

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Other info from another thread:

yup....time of breach, not last payment

“Generally, under Florida law, the statute of limitations begins to run when a person has notice of an invasion of legal rights or notice of his right to a cause of action.” Laney v. American Equity Inv. Life Ins. Co., 243 F. Supp. 2d 1347 (M.D. Fla. 2003)

“Intent of statute setting forth limitations period for contract actions is to limit commencement of actions from time of their accrual.”

“Generally, cause of action on contract accrues and statute of limitations begins to run from time of breach of contract.”

State Farm Mutual Auto. Ins. Co. v. Lee, 678 So.2d 818 (Fla. 1996)

“A cause of action on an oral loan payable on demand accrues, and the statute of limitations begins to runs, at the time when demand for payment is made.” Mosher v. Anderson, 817 So.2d 812 (Fla. 2002)

“The statute of limitations attaches when there has been notice of an invasion of a legal right of the plaintiff or he has been put on notice of his right to as cause of action.”

City of Miami v. Brooks 70 So.2d 306, (Fla. 1954)

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so my question based on all this is...

credit card agreements...is that alone good enough for it to be considered a written document? you know, the ones you get after you signed an applications where they only ask your name where you live and income and then sign....then in the mai you get this agreement with the card....

if not, what makes it be considered a written along with this terms and condition agreement?

signed slips? how many?

statements? how many....

i am confused at what makes a credit card, viewed by many and even on my CR an open-end or revolving acct and my state has a column for these open-end acct and its sol. it doesn't say "store accts" just oral which is viewed as open-end. what argument could be made by the collector that it is a written contract and what proof do they have to have in the state of florida....

i am arguing with the case law of fernandes with the last portion that says when its not a store acct, that the agreement alone isnt enough and is considered an oral acct.

lastly, it must be attached to the claim filed with the court from what i read in the rules for small claim to be considered. but if it is, then whatever the terms say, is final? mine says we have to apply new hampshire laws and i never lived there, but love the fact NH laws is 3 years whether written or oral. so my argument will be if the court views it as written based on the terms submitted, then we have to go with what is in the terms...nh law on sol...right?

please, someone explain this...thx

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Credit card agreements are generally not written accounts when the state has a seperate statute of limitations for open ended accounts. Although an open ended account may be founded on a written agreement, because it is specifically defined with a lesser statute of limitations, the lesser would apply.

Oh and by the way, opening an account on the internet is considered a written agreement. Thank former President Clinton for signing a law into being that makes digital signatures legally binding. And, a digital signature need only be something that can be traced to personally identify you. The requirements are weak-sauce.

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thx methuss for replying....

I dont know if its just me, but trying to read those statutes is like being a foreigner and not knowing the new language even though its in english. i have searched thru-out the statutes and its eluding me. i wish i could find it for florida but if it was that easy, i guess someone would have posted it here. thx again

its the GENERALLY that is killing me

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Hello Everyone! I am new here and this is my first post. I hope I am in the right place to post this? I am being sued and after reading a LOT of posts here I believe I will not only win but may get a lot of money from these jerks, Palisades Collection LLC and Cliffs Portfollio, But I may need to ask for help later. I have also been researching the Florida laws and found this on the Attorney Generals web site. I think it clarifies a credit card debt as a 4 yr sol.

How to Protect Yourself: Credit Card Bills

Source: The Florida Attorney General's Office

Congress has passed the Fair Credit Billing Act (FCBA) to help consumers resolve disputes with creditors over errors which appear on bills for their "open end" credit arrangements which include credit cards, revolving charge accounts (such as department store accounts), and overdraft checking. The Act does not apply to loans and credit which are paid according to a fixed schedule until the entire amount is repaid. The Act applies only to "billing errors" on the periodic bills or statements you receive (usually monthly) for your "open end" credit. The term "billing errors" includes:

Charges not made by you or anyone authorized by you to use your account;

Charges which are incorrectly identified or for which the wrong amount or date is shown;

Charges for goods or services you did not accept or which were not delivered as agreed;

Errors in the computation of charges or similar errors;

Failure to properly reflect payments or credits, such as for returned merchandise;

Not mailing or delivering bills to your current mailing address provided you have notified the creditor of the change of address at least twenty (20) days before the billing period ends;

Charges for which you request an explanation or written proof of purchase;

If you believe you have a "billing error" on your periodic statement in line with any of the above situations, consider the following:

There was more but I think this say's it all. here's the link.

http://myfloridalegal.com/pages.nsf/main/3a961b776de8955c85256cc90054fe39!OpenDocument

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That plays into the hands of LWT, Inc, who are suing me, but they failed to perfect service within 120 days, and I was not even notified that I was being sued until almost six months after the expiration of the 4-yr statute of limitations. Thus, for instance, if there were any compulsory counterclaims, I could be prevented from making them, which would clearly be inequitable. I claim that if service is not effected within 120 days, the filing of the suit should be null and void--like it was dismissed without prejudice. They filed an amended complaint after the statute of limitations expired, and the court related it back to the original filing. There is a lot of case law that states that the purpose of the SOL is to prevent surprise, and I got quite a surprise nearly six months after the expiration of the 4-yr SOL. Of course, my primary slant is that the agreement had a choice of law provision stating that it would be governed by Arizona law--which has a 3-yr SOL on open accounts--but the court ruled that the Florida 4-year statute applied, and that the original filing was within that period. Also, they are suing for breach of contract, and claim it is not an open account, but that the AZ SOL on breach of contract is five years. My argument was that the court needed to carry the SOL to the second filing which was not within that period, and the court turned me down. Does anyone know of any case law dealing specifically with failure to perfect service within the 120-day period? That is apparently found in the Florida Rules of Civil Procedure, rather than in the statutes themselves, and I don't know if it is actual state law. But if there is case law stating that the filing is not completed if not served, that would make them outside the SOL. Clearly I believe that it would be unconscionable for the court to recognize the first filing when I was not notified that I was being sued until more than 9 months after that filing! They used the sheriff's Dept to serve the thing, and the deputy did not find me home, and stated that the property appeared to be abandonned. I live alone, and worked pretty regularly at that time for either Labor Finders or Able Body Labor, and I had to be 30 miles from home at 5:30 AM in order to get work. Then I got out of work typically at 4:30 PM, and had to go back, get a check, then either cash it or get it to the bank, and then would typically go to the library to get on the internet, and might stay there until as late as 9:00 pm. I can understand why the deputy could not find me, to say the least! However, the Rules of Small Claims Court allow service by certified mail, and had he done that, I would have received it and hence been served. As it was, due to his choice of method of service, service was not perfected within 120 days, and I had no notice that I was being sued until the SOL had expired.

I need case law for two issues--first, I have to show that the open account SOL applies, not the breach of contract SOL, and second, that the first filing was null and void 120 days after it was filed, and the second filing was past the SOL even under the Florida law. I have to file the appeal by the 3rd of October, actually I think the 4th is good enough, and that is Saturday, and that means Monday the 6th....

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I just checked out Wood v Eli Lily, where the FL Supreme Court said that when a case is time-barred, the Defendant has a constitutionally protected property interest in being free from that claim. Just before they made that holding, however, they quoted from another older case, where they stated that there is a date certain beyond which nobody should have to worry about that claim.

The Massachusetts Supreme Court visited that issue in Klein v Catalano, quoting the New Jersey Supreme Court in Rosenburg v North Bergen (not certain I'm spelling those correctly) which quoted from a 1950s article in the Harvard Law Review about changing attitudes toward the statute of limitations. These courts found that you were entitled to destroy all evidence following the last day when a complaint filed on the expiration of the SOL had to be served--90 days there, a very liberal 120 days in FL. Because the language in the case cited in Wood v Lily so closely resembles the language in Klein, I believe that the FL SC would have to adop the holding from that case, which would dismiss LWT's case against me.

How do we get the court to certify that question to the FL supreme court?

Also LWT is saying that I failed to properly preserve my issues for appeal. Not sure how to deal with that issue.

Also, I'd like the FSC to decide once and for all if credit cards are a contract. There are cases both ways on this, but clearly the agreement does not bind the issuer in the same way it binds the cardholder, and I believe that is not anything which could be called a legally binding contract. For instance, even if you keep up your end of the bargain, there is nothing there to bind the issuer to continue giving you credit--and they can change their interest rate just because of one late payment to ANOTHER creditor! This is hardly a contract between equals!

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Just found case law (Credigy v. Allen) out of Hillsborough County that extends the Fernandes rationale to bank cards, not just store cards:

http://www.fljud13.org/pdfs/judges/Huey_credigyReceivablesvsRobertCuellar.pdf

"the court finds that the fact that the card issued in Portfolio was a Sears card, and not a Visa or a Mastercard, is immaterial."

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The link of the case does not come up. I tried google to upload it but cannot find it. Do you or anyone know where I can find it?

Also I have a problem and need to know some opinions from everyone: I am being sued here in Florida for a CC by the OC and the SOL was just under the 4 years when they filed their suit. Now it is over the 4 years. My question is since the plaintiff filed it under the 4 years and its over the 4 years now while the case is still going on Can I file a Motion to dismiss for the SOL being over the 4 years? or is it that since they filed the lawsuit under the 4 years I'm stuck and can't file the motion. Defaulted date was 5/09.

Any help would be appreciated!

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Post this on Is there a lawyer in the house?

Anyway when you post there, state the Original creditor, AND date of default, it might well be SOL.

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