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How do I handle Unifund account ?


aatavia23
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Unifund purchased an account from Chase Bank. The date of 1st delinquency was in July 2003. Well, Unifund never contaced me re: the account and have added about 2,000 in interest. My question is does anyone know the SOL in VA? I don't want to stir things up with them if they can possibly sue. I will DV the account if I know they will not pursue a judgement. They were in the wrong because they did not send anything, they only reported to the CRAs.

Does anyone have any suggestions?

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Unifund purchased an account from Chase Bank. The date of 1st delinquency was in July 2003. Well, Unifund never contaced me re: the account and have added about 2,000 in interest. My question is does anyone know the SOL in VA? I don't want to stir things up with them if they can possibly sue. I will DV the account if I know they will not pursue a judgement. They were in the wrong because they did not send anything, they only reported to the CRAs. Does anyone have any suggestions?

Well, if this is considered an "open-ended" account in Virginia, than your SOL is three years according to this sites information. If your state considers it "written" than it's 5 yrs. Most cc's are considered "open-ended" however, it can probably be argued in court.

So, you're saying Unifund never sent you the initial dunning notices of this account and yet they're reporting on your credit? Well gosh, everyone has the right to request validation and it seems like these folks side stepped it by not sending you notice. Perhaps someone else will chime it, but you may want to send them notice via CMRRR that you're seeing that they're reporting on your credit and you want further info. The key is to discover what your state deems this sort of debt to be. But perhaps someone else will have some better ideas...

Elyse

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Well, if this is considered an "open-ended" account in Virginia, than your SOL is three years according to this sites information.

That information is erroneous and should be removed from the site. It is a misinterpretation of the open account terminology and misleads almost everyone who reads it.

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I think there is good caselaw in VA that credit cards are actually considered open accounts. Let me see what I can dig up.

Wow, ihateca's-thanks! So far, this site is the only one I've been able to locate SOL listings for, it'd be nice if it was more easily researched per state...that way we know FOR SURE.

:)

Elyse

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Okay hmm...

VA statutes specify a specific "when the CoA accrues" for open accounts. But at the same time they don't define them in the SOL section of the statutes.

Okay here's what I may have for Virginia.

The Virginia Supreme Court found for the builders, holding that in each instance, the initial credit application served to create an Open Account rather than a continuous contract. In doing so, the Court noted that the applications did not require the builders to purchase materials nor did they obligate the suppliers to provide materials in any definite time.

You can read about a series of those cases here:

http://www.courts.state.va.us/opinions/opnscvtx/1951470.txt

There is also a very nicely written document about asserting an "open account" defense:

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

It's not clear cut, but there are some interesting arguments made.

I'm sure dive and nascar will jump right in and read it.

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The thrust of the VA "open account" argument is that the legislature recognized that that an "open account" is seperate and distinct from other CoAs by specifically defining it in "8.01-249. When cause of action shall be deemed to accrue in certain personal actions."

By doing so, and not listing it under the "8.01-246 Personal actions based on contracts" they are considering an open account to be something OTHER than a contract.

The SOL for any CoA not specifically named in 8.01 is TWO YEARS.

8.01-248. Personal actions for which no other limitation is specified.

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It seems like every time I research this issue I always come around to the Harris case and the discussion on two and three party, or tripartite agreements and the fact that the agreement between the creditor and debtor is an agreement to loan money.

That seems to be what propels these things into written contract status.

Also, with respect to parol evidence; it's admissibility is subject to a determination that the contract is unclear or ambiguous - FIRST.

If one can successfully argue that the terms are clear and unambiguous, parol evidence cannot be considered to determine anything about the contract. If it can't by law be considered, then it can't contribute to a finding that a contract is not written and around and around we go.

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That information is erroneous and should be removed from the site. It is a misinterpretation of the open account terminology and misleads almost everyone who reads it.

I agree here. Too many people come here reading that thinking it's a open and closed case, it's an open account only to find out it's not. Here in VA, i seem to remember that in most cases the courts have ruled it as a written contract and 5 years if the SOL. In either case, IMO, I would not go poking sticks at it until it's at the 5+ mark.

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Please educate me here, I was under the impression that the TIL act defined what open-end credit is. On the surface it looks like reg Z is saying that revolving cc's are open end. Obviously I do not understand all the nuances of the law.

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It seems like every time I research this issue I always come around to the Harris case and the discussion on two and three party, or tripartite agreements and the fact that the agreement between the creditor and debtor is an agreement to loan money.

Determining whether a particular claim is founded upon an

account constituting a single continuing contract or upon

separate and independent contracts is a question of fact, but one

which turns upon a substantive, rather than technical, view of

the situation.Chicago Lumber Company of Omaha v. Horner,

317 N.W.2d 87, 90 (Neb. 1982)

When I first talked to an attorney about all these different theories, her reply was "it's fact specific".

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Please educate me here, I was under the impression that the TIL act defined what open-end credit is. On the surface it looks like reg Z is saying that revolving cc's are open end. Obviously I do not understand all the nuances of the law.

A statute defines a term strictly within the meaning of that statute.

The TILA deals with disclosures to consumers who are extended credit by creditors. For the purpose of the TILA, and various things that you can about under it, open ended debt is defined. That definition is unique to the TILA.

You could have another statute that had the words "open-ended credit" with a slightly different or completely different definition. If you were suing someone under that statute, that definition would apply.

Take debt collector for instance.

FDCPA definition: Anyone who collects debt. Exemption: a business collecting its own debt. Exemption to the exemption: a business collecting its own debt that it purchased after default.

Michigan state law definiton: Anyone who collects debt for another party.

So do you see how debt collector under the FDCPA includes JDBs, but JDBs are not included under Michigan law?

When a OC or JDB sues you, they are not suing you under the TILA. They are suing you under state breach of contract laws. The TILA has nothing to do with it.

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