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Your thoughts on SOL (FL, VA, AZ)


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Florida

Senerio...

Credit card offer, solicited by a mailer to a consumer's residency in AZ in 2001, via a 30 second acceptance form that mentions nothing about terms or rates or interest etc...just a spot to sign and return by a certain date to accept, no application to fill out. (which violates the 6500 - FDIC Consumer Protection CHAPTER 2—CREDIT TRANSACTIONS 127. Open end consumer credit plans (1) DIRECT MAIL APPLICATIONS AND SOLICITATIONS....

(A) INFORMATION IN TABULAR FORMAT.--Any application to open a credit card account for any person under an open end consumer credit plan, or a solicitation to open such an account without requiring an application, that is mailed to consumers shall disclose the following information, subject to subsection (e) and section 122©:

.

Card is used until it has gone into default May 2002 for $1600, which the consumer disputes $1,000 of the charges as being charged due to theft. Consumer stops paying on it and there is nothing done on the account in the months and years to follow...after 3 years 2 months, consumer moves to Florida, not full time until June of 2006.

Creditor files in Oct 2006 in Florida for $2,500 plus interest and fees...a little more than $5,000 total.

Debtor claims that according to Florida Statute 95.10 (Borrowing Statute) Florida can not enforce this debt because the account was barred due to expired SOL in AZ. Arizona Statute 12-543 states that OPEN ACCOUNTS have a 3 year SOL. Open accounts are federally defined as accounts that extend credit where repeated series of transaction will occur.

Also, according to the Terms and Agreement that the plaintiff submits, has a section that says...“Applicable Law; Severability; Assignment.

No matter where you live, this agreement and your Account are governed by Federal Law and by Virginia law.”

Virginia carries a 3 year SOL on OPEN ACCOUNTS as well. On the Warrant in Debt (Form DC 412) a choice needs to be made between OPEN, CONTRACT, NOTE, or OTHER, so the judge knows which is being filed.

VA views credit cards as open accounts (case laws affirm this) since there is no contract on its face as defined unless its is viewed as oral since parol evidence is needed (testimony from the custodian to link all their documents together and not located on a single face or paper).

So...fast forward....

The judge in Florida can not enforce the debt since the borrowing statute bars them from doing so. Both AZ and VA's SOL has expired and this debt, while morally owed, is not enforceable or collectible.

Let the arguments begin......

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VA views credit cards as open accounts (case laws affirm this) since there is no contract on its face as defined unless its is viewed as oral since parol evidence is needed (testimony from the custodian to link all their documents together and not located on a single face or paper).

Ok, this has been a much disputed topic with VA and credit cards. So, if you have the goods (case laws or opinions and such) cough it up! Don't be stingy and please share..... :)++

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Action Barred by the Statute of Limitations

• The Supreme Court of Virginia recognizes that an Open Account is distinct from a contract by providing a choice of an Open Account or a Contract on a Warrant in Debt. (see copy of the Warrant in Debt attached).

• 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.

• The Virginia Legislature carved out a specific accrual time for an Open Account. Code of Virginia (1950) Section 8.01- 249 (see below)

• 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.

• From information and belief, the last charge for goods or services was April 2002.

• From information and belief, the last payment made by the Defendant was May 3, 2002.

• This action is time-barred by the Statute of Limitations § 8.01-246 as it have been longer than 3 years since either the last charge for goods or services or the last payment. Case filed October 16, 2006.

• In actions on an open account, [the accrual period begins] from the later of the (May 3, 2002) last payment or last charge for goods or services rendered on the account.

§ 8.01-246. Personal actions based on contracts.

(4). In actions upon any unwritten contract, express or implied, within three years.

§ 8.01-249.

(8). In actions on an open account, from the later of the last payment or last charge for goods or services rendered on the account.

(Code 1950, §§ 8-13, 8-17, 8-23; 1964, c. 219; 1966, c. 118; 1977, c. 617.)

VA Courts don't ask for an WRITTEN INSTRUMENT, but a WRITTEN CONTRACT. Terms and agreement do not constitute a written contract. Statements don't constitute a written contract. All the elements needed to be viewed as a written contract are missing. Even if they claim that they have all the elements, they are not all found on a single piece of paper, and must resort to paroling the evidence.

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If you are taking this line of argument, you'll need to convince a judge that a loan of money constitutes a sale of goods or services.

Are you prepared to do that?

Credit cards are a line of credit to be used for purchases of goods and services...to a third party. There is no specific vendor agreed on and no amount, aside of the credit limit. Terms/Agreement only engages the responsibility of the debtor and creditor as in regards to the payment of the credit line.

WHAT IS A CONTRACT?

The Fairfax County Circuit Court held that

“In order to constitute a written contract, the essential terms of the agreement must be obvious on the face of the writing without recourse to parole evidence.”

The Virginia Supreme Court has stated that "until all understand alike, there can be no assent, and, therefore, no contract."

An Open Account usually lacks: 1.) Specific mention of the nature and extent of the goods or services (medical treatment, hardware, etc.) to be purchased or performed except in a very general way and; 2.) There is no mention of the nature of charges or the payments required.

Concerning AZ laws....

12-543. Oral debt; stated or open account; relief on ground of fraud or mistake; three year limitation

There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions:

1. For debt where the indebtedness is not evidenced by a contract in writing.

2. Upon stated or open accounts other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents, but no item of a stated or open account shall be barred so long as any item thereof has been incurred within three years immediately prior to the bringing of an action thereon.

3. For relief on the ground of fraud or mistake, which cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

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I wish you luck in this. It would be nice to see someone succeed with this argument. You might want to brush up on Harris Trust v. McCray. The cite escapes me, but you can do a party search to find it. It has a good discussion on tripartite agreements.

ILLINOIS.......Harris Trust & Sav. Bank v McCray (1974) 21 Ill App 3d 605, 316 NE2d 209, 14 UCCRS 1338, 2 ALR4th 671§

It says....

Construing payments made to participating merchants by a bank-credit card

issuer pursuant to an agreement with the cardholder as a loan of money to

the cardholder, the court, in Harris Trust & Sav. Bank v McCray (1974) 21

Ill App 3d 605, 316 NE2d 209, 14 UCCRS 1338, 2 ALR4th 671, held that a

bank's action for the amount of money due on the credit card account was

governed by the 10-year limitation applicable to written contracts,

including promises to pay money, and that the action was not barred by the

4-year statute of limitations governing contracts for the sale of goods

under Uniform Commercial Code § 2-725. Thus, the court affirmed a judgment

in the bank's favor and denying the cardholder's motion to dismiss the

action filed more than 4 years after the cause of action accrued.

And it goes on.....but that case is not what I am arguing. "and that the action was not barred by the

4-year statute of limitations governing contracts for the sale of goods

under Uniform Commercial Code § 2-725." is another matter. I am not using the defense that it is a contract for the sales of good and services with three parties involved. Just the part in the statute that says WRITTEN CONTRACT between the creditor and debtor.

I am only arguing that a credit card is NOT found on a written contract. It will have to be presented to the court in order to view it as a contract. I will be arguing this in FL using VA laws...not Illinois.

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I am only arguing that a credit card is NOT found on a written contract.

If you have time, you might also want to scan through 129 ALR 603 and 111 ALR 984. Good stuff on proof of written contracts as it pertains to determination of applicable SOL.

BTW, don't let the fact that Harris is an Illinois case throw you on this question. It has been cited dozens of times from New York to North Carolina. Most courts tend to follow the reasoning in this opinion.

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In viewing some of the stuff in some of those cases...

they argued that the contracts were in fact the charges made on each purchase. The agreement was just an extension of the credit and not the contract. So, that being said, would they not have to included some signed sale slips to show that their were signed contracts? I mean, the statements are just an accounting tool to show a report of the supposed charges made. Again, all of these documents would have to be paroled.

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Again, all of these documents would have to be paroled.

Not necessarily. Recall that parol evidence is only admissible under certain situations. You're going to argue that the underlying agreement doesn't stand on its own. They will assert that it does.

If the court finds that it does, then parol evidence is inadmissible. If it is ruled inadmissible, then you won't be able to assert your argument that the agreement is not "written" because it required parol evidence to clarify terms.

If parol evidence is inadmissible then it logically follows that the agreement stands on its own. If it stands on its own, then the court will hold that it is written.

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Not necessarily. Recall that parol evidence is only admissible under certain situations. You're going to argue that the underlying agreement doesn't stand on its own. They will assert that it does.

If the court finds that it does, then parol evidence is inadmissible. If it is ruled inadmissible, then you won't be able to assert your argument that the agreement is not "written" because it required parol evidence to clarify terms.

If parol evidence is inadmissible then it logically follows that the agreement stands on its own. If it stands on its own, then the court will hold that it is written.

Lets just for the sake of agrument, that.....

paroling is allowed (since they usually ask for telephonic appearance by both the lawyer and their witnesses).

each of their documents could not stand alone in being looked at as a written contract.

a) terms and agreement...nothing more than how this account will be charged, responsibilities of debtor etc. a general term agreement that everyone gets. nothing specific for said account.

B) signed acceptance...only has a signature and a date. no rates, interests, amount, account number, SSI number etc...

c) monthly statements...just an accounting form to show charges and amount due. account info could be wrong, nothing is said to be factual and 100% accurate. could be disputed.

VA LAW:

§ 8.01-246. Personal actions based on contracts.

(4). In actions upon any unwritten contract, express or implied, within three years.

there is no signed slips, no contractual paper that has everything found on a traditional contract with terms, rates, signature, account number, limit amounts, etc....all on one form.

now, lets say that paroling isn't allowed...than the planitiff would not have much to go on.

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I get the idea that you are hung up on the parol evidence thing. Proving a contract really isn't that difficult, especially regarding credit cards where use of the card constitutes constructive acceptance of the written terms and conditions of the agreement...hence, no signatures required.

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I get the idea that you are hung up on the parol evidence thing. Proving a contract really isn't that difficult, especially regarding credit cards where use of the card constitutes constructive acceptance of the written terms and conditions of the agreement...hence, no signatures required.

why do we sign most of the slips? why do we sign a contract with a car dealership? why don't we just get handed the keys if we just promise to make payments? why do we need rental leases? if we live in the apartment, then we are assumed to be in agreement then. I dont follow what you are getting at. The law says...ANY CONTRACT THAT IS UNWRITTEN CARRIES A 3 YEAR SOL.

plus the following case laws in FL...

• “Further, action is not founded on written instrument where evidence of liability consist partially of written cardholder account and security agreement but writing is incomplete to establish liability–According, contract is regarded as oral for stature of limitations purposes”

Portfolio Recovery Associates, LLC v Paul Fernandez 13 Fla L. Weekly Supp. 560, 561

• “Contract action is not founded upon written instrument for purpose of statue 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 4th DCS 1995), rev den. 666 So2.d 143 (Fla 1995)

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

McGill v Cockrell, 101 So.2d 199 (Fla. 1924) Id at 201.

• Although evidence of liability relied on may be partly written, the transaction may be regarded as an oral one, if the writings are so indefinite or incomplete as to necessitate oral testimony to establish liability on the part of the defendant in terms of the transaction.

Johnson v. Harrison Hardware & Furniture Co. (1934) 119 Fla. 470, 152 So. 708, rehearing denied 119 Fla. 471, 160 So. 878.

I don't make the laws. The wording as stated in these statutes clearly say...CONTRACT.

I am not hung up on the parol part. It's just that in Florida, this has been used in cases to dismiss them as not being found on a written instrument (contract).

In VA,

§ 8.01-246. Personal actions based on contracts.

(4). In actions upon any unwritten contract, express or implied, within three years.

they mention UNWRITTEN CONTRACT...

so...in your opinion, what would the plaintiff use as the written contract?

remember..there is no signed sale slips submitted as evidence.

only a few statements, a signed acceptance of nothing that can be attached to said account, and a money order with a different account (had 3 accounts with them) on it.

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PAYMENT

Promise to Pay

You promise to pay according to the terms and conditions of the Agreement for all: (a) credit we extend on your Account; (B) Finance Charges, late charges, overlimit charges and administrative charges (e.g. for research, returned checks, overdraft protection, if applicable, etc.) provided in the Agreement and © collection costs and attorneys' fees to the extent permitted by applicable law.

The Agreement goes on to explain in detail how payment is to be made, what it is determined upon, what determines finance charges, how your credit limit is determined, how that information will be transmiitted to you, etc.

Further

You and we are bound by this Agreement from the earlier of the time you receive it or from the date of the first transaction, ...

The corporate attorneys who draft these agreements draft them in such a way that they will always be construed as a written contract. A written contract doesn't always have to take form of a promissory note or a mortgage to be construed as a written contract.

The Cardmember Agreement an example of a written contract. It contains an offer (extend credit on your behalf), provides for the manner of acceptance (your use of the card), consideraton (they lend money on your behalf, you pay finance charges and fees), meeting of the minds (the terms or the agreement are clearly written).

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ok....If, arguendo, my unsigned “Cardmember Agreement” pamphlet were to be deemed to be a binding contractual document under which the plaintiff could bring an action, then neither Section 95.11(2)(B)’s five-year period nor Section 95.11(3)(k)’s four-year limitations period would govern. That is because my version of the “Cardmember Agreement” expressly provide that the Agreement will be governed by the laws of the State of Virginia, and the applicable limitations period under Virginia law is only 3 years.

But remember...i said UNSIGNED. There is no connection to say that this agreement was the one we entered into. It is a copy of some agreement and is basically HERESAY and needs testimony from the custodian. It can be striken as not being able to prove that this agreement was in fact, the one used in my case. No name, no acct number, nothing tieing it to mine. It could have been pulled out of a hat. But since they introduced it, they can't withdraw it and add another one.

so...VA laws apply and their wording is different than FL's "instrument"....VA uses the word unwritten "contract".

BTW, I failed to mention....They only included 2 pages of the agreement....So, it is only a partial "contract"...all the elements as you mentioned are not there.

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Be sure to let us know how this turns out.

sure will....

i have hired a court reporter just in case the judge is too eager to wrap this up after a year on the books. if it goes that course, i hope the appeals process looks into it more closely. if i do over-turn a possible loss in small claims in appellate court, i just might have a case law to add to the book...lol

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Florida Rules of Civil Procedure

RULE 1.130 ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS

(a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

Does that mean that when they filed this case, that in the first original summons, their claim had to be supported with all necessary exhibits and evidence at that time and not added 2 months down the line as exhibits? their claim is breach of contract but in the summons, their exhibit A was just a statement they typed out what they were asking for and not any exhibit of evidence. would they be allowed to annex any evidence to support their plead/claim after the first summons?

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Small claims in Florida ... right?

In 1996 the Florida Supreme Court amended Small Claims Rule 7.020 to include Fl.RCP 1.370 which allows you move to compel discovery.

Go get 'em.

yes, small claims...thx...i had that rule and i am applying it in my motion. my trial is oct 5 and i have requested a hearing before that time. i might have to ask for a continuance since they have not answered my discovery yet. i will not be ready without it unless the judge rules in my favor with sanctions as in tossing out evidence or dismissing the case.
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