Statute of Limitations - WA State

[Amerikaner83]

In reading previous posts (and writing some of my own), it has become confusing in Washington State to define Statute of limitations when talking about collection of credit card / merchant charge card accounts.

There seems to be a lot of confusion over SOL in my state (what can I say, we're "different here"), so I sent an e-mail to the Attorney General's Office...Here it is:

Subject: Statute of Limitations on collection activity of credit card accounts

Dear Sir or Madam;

I have researched Washington State case law and RCW titles for this and I am still not having any luck. I was hoping the AG's office could clear something up for me. When looking at the Statute of Limitations for collection of a consumer debt, there are no specifics regarding credit card accounts and Merchant card accounts (ie: Best Buy Store Credit Card, Macy's Card, etc). I am trying to find out if Washington State has a statute of limitations that applies in this case. I am being threatened by lawsuit on a debt that I believe is past the Statute of Limitations, but there is no clear Statute of limitations for collection of a Merchant Card account in this state.

I believe the Statute of limitations that would apply is the 3-year one as provided under RCW 4.16.080 but there is no specificity. A merchant card account is not a written contract between two parties (as it is not signed by both parties), so I don't believe a 6 year Statute of limitations applies (as outlined in RCW 4.16.040).

I would be greatly humbled and appreciative of any clarification of this issue. I am a private citizen way over my head. Thank you for any information you can provide.

Sincerely,

Me (name deleted for obvious reasons here)

I should have a response soon...but just wondering if anyone KNEW FOR SURE what the SOL is on something like this - I've been told 3 yers, I've been told 6, and so forth. Not sure how long the AG office will take to respond, so I'm in limbo here. An attorney I emailed was also vague. He said there seems to be nothing this exact, but local courts seem to rule it's 6 years (written contract)... I can't send out a FOAD letter to Arrow saying it's out of SOL until I KNOW it is!

What do y'all think?

[wolfhound]

RSB had a post or 12 about this, still no clarity, but it looks like 6 years.

[Amerikaner83]

Yeah - looks like we both had SOL questions written to the AG..guess it's up to them.

[nascar]

see Urban Development, Inc. v. Evergreen Bldg. Products. L.L.C, 14 Wash. App. 639, 59 P.3d 112 (2002). This case gives an exhaustive description of what constitutes a written contract in Washington.

[Amerikaner83]

I didn't find anything about what constitutes a written contract...I just found a bunch of crap about "impied and expressed warranties"....grr

Did i miss it?

[nascar]

I didn't find anything about what constitutes a written contract

Here's part of it. The included cites will take you to cases with more detail.

RCW 4.16.040(1) establishes a six-year limitation period for an “action upon a contract in writing, or liability express or implied arising out of a written agreement.” A written agreement for purposes of this limitation period must contain all the essential elements of the contract, which include the subject matter, parties, terms and conditions, and price or consideration. The question as to R & E and SDS is thus whether a writing existed that contained the essential elements of a contract.

FN27. Bogle & Gates, P.L.L.C. v. Holly Mountain Resources, 108 Wash.App. 557, 560-61, 32 P.3d 1002 (2001).

R & E. R & E submitted a written proposal after work had began. The proposal identifies the subject matter of the contract, the parties, the terms and conditions, and the price. Urban Development argues the proposal contains all essential elements of a contract. R & E contends that because Urban Development did not sign it, the essential element of acceptance is missing. But the inquiry here is not whether Urban Development accepted R & E's offer; it is *651 undisputed that it did, and that a contract was formed. The proper inquiry is whether the writing contains the essential elements for purposes of the six-year statute of limitation.

We conclude it does. Signatures of both parties are not essential elements: “ ‘Ex parte writings are sufficient to bring a contract within the 6-year statute of limitations if the writing contains all of the elements of a contract.’ The proposal is thus not rendered insufficient simply because Urban Development did not sign it. Nor is it insufficient because it was tendered after work under the contract had already started; a memorandum that memorializes an oral agreement between the parties satisfies the writing requirement. The contract between R & E and Urban Development was therefore a written contract governed by the six-year statute of limitation, and the trial court erred by granting summary judgment to R & E on grounds its contract was oral.

FN28. Holly Mountain, 108 Wash.App. at 561, 32 P.3d 1002 (quoting Kloss v. Honeywell, Inc., 77 Wash.App. 294, 890 P.2d 480 (1995)).

FN29. Holly Mountain, 108 Wash.App. at 561-62, 32 P.3d 1002.

[RSB]

Yeah - looks like we both had SOL questions written to the AG..guess it's up to them.

The AG's does not know the answer. They say contact an attorney for legal advice.

A state senator's office did not know the answer. That office also said seek legal advice.

[Amerikaner83]

"A written agreement for purposes of the 6-year statute of limitations must contain all the essential elements of the contract, and if resort to parol

evidence is necessary to establish any essential element, then the

contract is partly oral and the 3-year statute of limitations applies."

Id. at 840-41 (citing Ingalls v. Angell, 76 Wash. 692,

695-96, 137 P. 309 (1913); National Bank of Commerce v. Preston,

16 Wn. App. 678, 679, 558 P.2d 1372 (1977)). The essential elements of a

contract are "`the subject matter of the contract, the parties, the

promise, the terms and conditions, and (in some but not all

jurisdictions) the price or consideration.'" DePhillips v. Zolt

Constr. Co., Inc., 136 Wn.2d 26, 31, 959 P.2d 1104 (1998) (quoting

Family Med. Bldg., Inc. v. D.S.H.S., 104 Wn.2d 105, 108, 702

P.2d 459 (1985)).

Where is the "promise"? The "promise" would be something like (signee agrees to pay in full each month and in return, card company agrees to..... Since the 6 year SOL MUST CONTAIN ALL the elements of a contract (and the promise is one of the requireds...)does this mean that still, I could interpret the 3 year SOL as being the accurate one?

[Amerikaner83]

The AG's does not know the answer. They say contact an attorney for legal advice.

A state senator's office did not know the answer. That office also said seek legal advice.

Damn. So still it's not 100% sure either way?! Darnitalltohell

[RSB]

AND...the WA AG represenative told me the debt's SOL is determined according to where the account was opened and occured. So, if the account was opened in another state, then possibly the other state's SOL will apply.

[vittles49]

Hi, I just went back and forth with the AG's office too. Told the same thing. I sent the AG's office the paragragh from the FTC that said to contact them for the Statute of Limitations.

Anyway, I thought the written contract had more to do with loans and contracts that have a set amount you pay. And that the credit cards were the open-end accounts with the revolving credit and varying amounts due. I thought that the open-end accounts included credit cards, and most of the websites post 3 years for open accounts in Washington State.

But then with this RCW below, what would the once considered open account be after a year?

Does it mean after a year has transpired on an account with no activity, it is no longer considered an open account??? I'm confused.

"RCW 4.16.150 Action on mutual open accounts.

In an action brought to recover a balance due upon a mutual open and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side, but whenever a period of more than one year shall have elapsed between any of a series of items or demands, they are not to be deemed such an account."

[someonesomewhere]

A state senator's office did not know the answer. That office also said seek legal advice.

A state senator can send an official request to the AG, and the AG would then research it and render an opinion.

[nascar]

does this mean that still, I could interpret the 3 year SOL as being the accurate one?

You can interpret it to mean whatever you want. I bet you have a pretty good idea the court wouldn't, though.

[Amerikaner83]

You can interpret it to mean whatever you want. I bet you have a pretty good idea the court wouldn't, though.

Yeah, I'm no longer as hopeful about receiving my reply form the AG. Maybe I should call a lawyer and offer to be the test case for this...? Make it all the way to WA Supreme court...this would at least stall until the 6 year SOL (if it was interpreted that way by the knowledgeable elders in Olympia) has passed *evil grin*

[IHateCAs]

Once a suit is filed, it tolls the SOLC. You can't delay in court for years with appeals then suddenly say "well it's been six years now anyway, so I win".

C'mon.

[Amerikaner83]

I know I know...just wishful thinking on my part.

[RSB]

I think the SOL for credit cards in WA is 3 years.

[nascar]

I think the SOL for credit cards in WA is 3 years.

I don't think the courts would agree with you on that.

[RSB]

I don't think the courts would agree with you on that.

Perhaps the courts will use the TILA information and determine the WA law is too vague.

A JDB told me, SOL for Visa credit cards, in WA, is three years.

[olywa]

Amer...

This is a common question on this and many boards. You're correct that WA law is very vague on this topic and causes a lot of controversy every time someone asks this same ?. Everytime it's the same thing...and you'll hear a multitude of arguments both advocating 3 v. 6 yrs.

A couple issues.

The AG simply prolly won't be able to give you any definitive answer here...and for that matter neither will a private attorney...don't keep wasting your time. I personally have spent over 8 hours researching this exact topic at the state law library in the Washington Practice series and others (and I know what I'm doing) and have found no clear cut answer to this question.

FYI...if you hire an attorney to find you an answer...they will simply look it up in WA Practice also and be unable to give you any 'good' or 'better' answer. Don't waste your money on an attorney for this topic...and no, no attorney will take this case as a 'test.'

The simple fact of all of this is the following: caselaw or no caselaw...precedent or no precedent...3 or 6 years will be decided by the individual judge who hears your case...and the honest truth is that they really don't know either. AND...they aren't gonna do any research to find out the answer...just the way it is.

I'm going to assume this issue comes up as a result of dealing with a bad debt and/or a CA? If so...please list the particulars of the issue...SOL, type of debt, DOLA...and you'll get much farther in your fight than if you waste time dealing with this non-issue.

A couple tips from someone with 'experience.'

First and foremost...if you read the boards you'll find that the only people who actually lose to a CA are the ones that don't show up for court and fight. SHOW UP!!! and agrue: DOLA, interest computation, state licensure, right of assignment, amount being litigated, demand original contracts, receipts, sales contract of the account AND the assignment, etc., etc., etc.

CA's and JDB's want one thing. DEFAULT JUDGMENTS. Put up any type of educated fight and they'll simply drop the case and go away in over 90% of the cases. Call your local district court and ask when their summary judgment docket is. Go watch and learn what I'm telling you is true by watching all the default judgments being issued.

Here's the best part of living in WA state and dealing with a CA. WA has the Collection Agency Act RCW 19.16. Take a look and see if your CA letters are itemized with: the original amount of the assigment, added fees, interest, the rate of interest being charged. I bet they aren't. If they aren't you have em. Why...because they violated the CA act AND the WA Consumer Protection Act...a real death blow to a company. If they have done something like this...report em to the dept of licensing collection agency licensing program...they're real Nazis! You may want to look at their 'disciplinary actions' on the DOL CA board website.

Basically...get past the SOL issue. It's simply just too confusing and ultimately a non-issue in most cases. Good luck and let us know how your situation works out. We all learn from each other here.

OlyWa

[someonesomewhere]

OlyWa,

Correct me if I'm wrong, but attorneys acting as collectors don't have to be licensed by DOL.

RCW 19.16.100 (3)©

"Collection agency" does not mean and does not include ... lawyers ...

http://apps.leg.wa.gov/RCW/default.aspx?cite=19.16.100

[olywa]

Ya...I think you're correct.

I was mostly on a CA tirade...as typically you're dunned by a CA before it goes to an attorney...and the attorney typically suing you is doing so on behalf of a CA.

But ya...you're right on as far as I know.

[RSB]

I am glad you posted your info, olywa.

[mdk003]

OlyWa,

Correct me if I'm wrong, but attorneys acting as collectors don't have to be licensed by DOL.

In addition, junk debt collectors who have purchased the debt do not have to be licensed by the DOL either. This is directly from the DOL program manager:

"All collection agencies that collect debts on behalf of another must be

licensed in Washington State if they are contacting persons in

Washington. If an business buys debts and then collects on those

purchased debts, they do not need a license since they own the debt."

[olywa]

You're correct MDK...

That is the situation many find themselves in with Asset Acceptance in particular...as they almost always own the debts they are collecting.

I think the OP was dealing with Arrow...which I'm certain isn't the creditor.

Good point to bring up though.