?Open or Written Virginia?

[TwoFaced]

I have read and read and searched and searched...

My question is...

SOL for state of Virginia for written vs. open?

Is there any case history to use for my upcoming court date on whether or not Credit Cards and store accounts are considered open account or written contracts?

Any help would be nice...

Currently I have 2 court dates...and more than likely 2 more coming from Asset Acceptance. First court date is Friday for Lowes card. Next is a Shaws Jewl account posted as written contract on the summons next month.

Regards,

TwoFaced

[nascar]

SOL for state of Virginia for written vs. open?

Va. Code Ann. 8.01-246

Written - 5 years, Unwritten - 3 years, UCC - 4 years.

Is there any case history to use for my upcoming court date on whether or not Credit Cards and store accounts are considered open account or written contracts?

[TwoFaced]

So bank card (credit cards) Visa, Mastercard and such are considered written? (Strange since the terms in the applications for these cards are pretty much the same as store cards). I understand the SOL and definitions of written vs open, however Virginia isnt clear in the VA Code book.

Store cards such as lowes, home depot, best buy are considered open.

Any case history to prove this? That is specifically what I am looking for. Since the Va Code does not specify between the two with any definition. Case histories would help out a lot.

TwoFaced

[nascar]

Case histories would help out a lot.

TwoFaced

Harris Trust & Savings Bank v. McCray, 21 Il. App. 3d 605, 316 N.E.2d 209 (1st Dist. 1974) is controlling on the question of whether the statute of limitations for written agreements apply to credit card debt.

[cracrap]

"Bank cards" fall under written agreements. "Store cards" generally fall under sale of goods (UCC)

[IHateCAs]

I think VA has favorable caselaw for CCs being open accounts falling under a shorter SOL. I don't have those cases handy though.

[nascar]

99.9% of posts and answers are stating that cc debt is open contract..is this not so?? what am i missing??

99.9% of the posters don't know that there is no "open contract" per se. There may be open-ended provisions within the contract that would lead someone to use the term "open contract", but by definition, there is no open contract.

[cracrap]

gothcha..that would be true then..

[SeeBee]

I think VA has favorable caselaw for CCs being open accounts falling under a shorter SOL. I don't have those cases handy though.

Hello, IHateCAs. This is my first post.

I would be very grateful if you were able to find the above caselaw. If not, I'll be just as grateful if you point me in the right direction. Thanks!

[bigjohnstud4200]

Hello, IHateCAs. This is my first post.

I would be very grateful if you were able to find the above caselaw. If not, I'll be just as grateful if you point me in the right direction. Thanks!

IHateCAs has been around for awhile. WHERE ARE YOU?!

[vialna]

i thought according to tila all cc were consideed open,....

is that only if ur suing or being sued in federal...

and i was also told that what is sent with the summons or complaint determines if it is based on open or written...ex. affadavit from oc..copy of several statements...

i didnt no that it was just cut and dry...v

[bigjohnstud4200]

i thought according to tila all cc were consideed open,....

is that only if ur suing or being sued in federal...

and i was also told that what is sent with the summons or complaint determines if it is based on open or written...ex. affadavit from oc..copy of several statements...

i didnt no that it was just cut and dry...v

Everytime this question comes up I say what I'm about to say. The sites need to change that documentation. It is incorrect. In most states/cases, they will argue that a CC like VISA, MC, AMEX, DISCOVER, etc are "based on written instruments" (you sign the sale slip everytime you make a purchase and that is an agreement to the card holder agreement). Some states see this differently, but to be safe, I would also assume that a CC card is "written" unless it's a STORE BRAND card like best buy, jcpenny, so on and so on.

[downwithdogs]

I live in VA too and have done a lot of research. The only thing I've found is you'll be hard pressed to convince a VA judge that cards are anything other than written. Good luck.

State law has the power!

[VaSwtness]

Actually, I've spent many hours contacting various attorneys over this same thing through my credit problems. All have said Open Accounts. A written account would have to be a set payment at a set time for a set period of time. Open continues forever, as in revolving credit.

So, before I wrote this reply I decided to utilize my "free" legal aid from work and I just called two more lawyers. Played dumb consumer with problem. Both just said not more than 10 minutes ago that they are open accounts. Now, case law? Don't know. Are they right? Don't know either. However, that is 2 out of 2!!!

Good Luck

[downwithdogs]

So, before I wrote this reply I decided to utilize my "free" legal aid from work and I just called two more lawyers. Played dumb consumer with problem. Both just said not more than 10 minutes ago that they are open accounts. Now, case law? Don't know. Are they right? Don't know either. However, that is 2 out of 2!!!

That would be great. If anyone had case law to cement an "answer" that would be helpful. I'll try to search as well. I do know from my "Warrant in Debt" the OC/CA has claimed it is written.

[bigjohnstud4200]

That would be great. If anyone had case law to cement an "answer" that would be helpful. I'll try to search as well. I do know from my "Warrant in Debt" the OC/CA has claimed it is written.

I'd like to hear how this turns out.

[VaSwtness]

This is as close as I've come so far to distinguish b/w open or written.

http://www.lsnv.org/Open_Account_Statute_Limitations.doc

[nascar]

This is as close as I've come so far to distinguish b/w open or written.

http://www.lsnv.org/Open_Account_Statute_Limitations.doc

Read carefully. You'll not find any reference to "open vs. written."

Read the first line of the document you referred to. It says "Is an open account the same as a contract?" It doesn't say anything about open vs. written because there is no legal comparison between the two. This is a misconception.

There is no question that the obligation to pay a credit card debt arises out of a contract between you and the credit card company. In terms of statute of limitations, the question is, "Is the credit card agreement a written contract, or a contract founded upon a written instrument?" If it is not, then the contract falls into some other category; oral, verbal, non-written, whatever.

When you consider the types of contracts - you have written, verbal, quasi (if the court creates one in equity). That's basically it. You'll note that "open" is not one of your choices.

[downwithdogs]

By so doing, and not addressing an Open Account in ' 8.01-246, the legislature thereby considers an Open Account to be distinct from a written contract, oral contract quasi-contract or implied contract.

I think I understand what you are saying.

The burden is on the Defendant to plead statute of limitations.

I don't know a lot but I think this means we can try to plead it but reading the other portions of the document there is not a lot of case law support in the matter and ambiguous.

1.The Supreme Court recognizes that an Open Account is distinct from a contract by providing a choice of AOpen Account@ or AContract@ on a Warrant in Debt.

2.This was an Open Account as there was a situation where there had been running or current dealings between the parties and the account had been kept open with the expectation of further dealings. Blah Blah

But this would be an example for the "answer". Did I understand correctly?

However I did find some more info. It is from another forum and heresay so take it for what it's worth... Some people are claiming to be able to use the TILA "open-end account" for defense but it is being refutted because there is a difference between again "open account" and "open-end account". Here's what one person said...

most judges view bank credit cards as written agreements. You are not going to find many citations (IL being the exception) because these small claims and state court decisons are not published. Someone will have to file an appeal in the state before a published opinion and citation are established. Thus far, I don't know of anyone who has been willing to pony up the cost for what their attorney advises would likely be a loosing battle.

I have been following this closely as I can the last three or four years. I only know of one situation where a local judge agreed that a bank credit card was an open account. It was in VA and was reported to me by the defendant. There was nothing published and I am personally convinced the outcome was the result of a defendant who really had his act together and a plaintiff's counsel who was a total ditz and a judge with a low tolerance for ditz-ness. There is no citation for this decision since it was not published.

[daprez1963]

Read carefully. You'll not find any reference to "open vs. written."

Read the first line of the document you referred to. It says "Is an open account the same as a contract?" It doesn't say anything about open vs. written because there is no legal comparison between the two. This is a misconception.

There is no question that the obligation to pay a credit card debt arises out of a contract between you and the credit card company. In terms of statute of limitations, the question is, "Is the credit card agreement a written contract, or a contract founded upon a written instrument?" If it is not, then the contract falls into some other category; oral, verbal, non-written, whatever.

When you consider the types of contracts - you have written, verbal, quasi (if the court creates one in equity). That's basically it. You'll note that "open" is not one of your choices.

actually....when filing in VA

OPEN ACCOUNT UNDER VIRGINIA LAW

STATUTE OF LIMITATIONS ON AN OPEN ACCOUNT

Is an Open Account the same as a contract? Is the statute of limitations different for the two?

Issues

Determining whether an obligation is based on an Open Account, a contract, or some third category (quasi-contract, oral contract or implied contract) is a daunting task because of an almost complete lack of definition of this term in the Virginia Code and common law.

Yet the Warrant in Debt [Form DC 412] (FORM SUPPLIED WITH MOTION IN BACK) calls for the Plaintiff when filing to state whether the claim is:

“[ ] Open Account [ ] Contract [ ] Note [ ] Other (EXPLAIN).”

The judge needs to know this information to rule on the claim, including the appropriate statute of limitations.

the warrant in debt requires that you select OPEN, CONTRACT, NOTE or OTHER...so they must consider OPEN ACCOUNT to be different than CONTRACT.