Looking for KY caselaw- can't find any on SOL

[cuthatcard]

KRS 413.120 is the statute for limitations, however , it is somewhat vauge and I see all the sites states SOL for bank issued cc is 5 yrs. I can't find any case law to back that up and I am currently in litigation with a CA on a 6.5+ yr CC debt.That is since the DOLA. I have answered the CA complaint, and sent them roggs, addmissions, prod. of docs. 33 days ago (CMRR). Haven't heard a word back from them.

Any help?

[flacorps]

On the rogs in many jurisdictions you would need to confer with them first then file a motion to compel.

[Rick9972]

Well good luck and be very careful trying to use SOL as a defense in KY.

Here is a site you can get Ky caselaw.

http://apps.kycourts.net/Supreme/SC_Opinions.shtm

This site has both Supreme and Appeals court opinions on it and you can do a search for both at the same time. I ran the search for 413.120 and it returned 147 cases where this statute was referred too in some manner. *grins* Start reading!!

As far as common practice in KY courts the conversation goes like this:

Debtor: Per 413.120 the SOL for this debt is 5 years.

Plaintiff: Well your Honor, according to our reading we feel the debtor should not be trying to skip out on paying a legitimate debt and feel the SOL per 413.120 should be 15 years.

Judge to the Plaintiff: You are right 15 years sounds good, judgement for Plaintiff entered. We still on for our 4 o'clock tee time?

All jokes aside, if it is a Branded(store) CC you have a small chance of getting 5 years, otherwise it is 15 years. Morah4 can provide alot more info. as she has lost a couple cases over SOL.

She now approaches her Credit Repair as if SOL does not exist and I do the same. *shrugs* We have both asked lawyers for SOL standards for KY and the reply is that it really depends on the judge.

[cuthatcard]

I am not soley relying on SOL as I have asked and not received for proof that the account is mine, nothing. I have, and will deny, this account is mine. I have also raised the "Plaintiff fails to state claim upon which releif can be granted" as they have an attatched exhibit that is a blurred copy of a document that really cannot be read. Also attatched is a computer "Statement of Account", listing ASSIGNEE OF, my name, my address, CA name and account#, Original Lender account#, purchase date, principle & interest & total balance. Interest rate DOLP.

An affidavit from the CA supervisor saying that I owe the amount that the CA purchased from the OC is also attatched.

I also expect, and have thru roggs, Truth In Lending Act - "Open Account" definition and how it and the term 'revolving" applys to credit cards vs. written account.

So, I expect something more than this as anyone could sign an affidavit, list a statement of account and file suit against anyone I wanted to!

I raise the issue of SOL 5 yrs and I would think it would be up to the CA to prove SOL is written and then 15 yrs. A written agreement signed by myself and them is what I'm also relying on as I don't think they can produce. They are used to people just not showing up and getting SJ. Well, I'm gonna stand up.

I have found some old caselaw and was looking for some help finding more recent or something within the 6th Circuit that relates to Credit Card accounts (Bank issued) as open revolving accounts (implied, oral) vs. written contract.

Anything anybody?

I will look through the above cases, all 147 of them.

Also, do I need to contact (call, write) the Atty for the CA and remind them of my request for the items I listed?

Can they just file and wait if I answer? What would they be waiting on? I had 20 days to respond, I gave them 30 days to respond. If I had not responded within the 20 days, I'm positive they would have sought Summary Judgement.

I dunno, just looking for some help as I have looked and read so much and wearing a little....

Thanks

[cuthatcard]

Well good luck and be very careful trying to use SOL as a defense in KY.

Here is a site you can get Ky caselaw.

http://apps.kycourts.net/Supreme/SC_Opinions.shtm

See, e.g., Mills v. McGaffee, 254 S.W.2d 716

(1953)(written instrument must include all its terms, the

consideration for the undertaking, and the identities of the

parties in order to constitute a contract in writing); Gray v.

Int’l a$$’n of Heat and Frost Insulators and Asbestos Workers

Local No. 51, 447 F.2d 1118 (6th Cir. 1971)(contracts partly oral

and partly written or so indefinite as to require parole evidence

are not “contracts in writing” within the fifteen-year statute

limitations).

Thsi was the only 1 close.

This site has both Supreme and Appeals court opinions on it and you can do a search for both at the same time. I ran the search for 413.120 and it returned 147 cases where this statute was referred too in some manner. *grins* Start reading!!

As far as common practice in KY courts the conversation goes like this:

Debtor: Per 413.120 the SOL for this debt is 5 years.

Plaintiff: Well your Honor, according to our reading we feel the debtor should not be trying to skip out on paying a legitimate debt and feel the SOL per 413.120 should be 15 years.

Judge to the Plaintiff: You are right 15 years sounds good, judgement for Plaintiff entered. We still on for our 4 o'clock tee time?

All jokes aside, if it is a Branded(store) CC you have a small chance of getting 5 years, otherwise it is 15 years. Morah4 can provide alot more info. as she has lost a couple cases over SOL.

She now approaches her Credit Repair as if SOL does not exist and I do the same. *shrugs* We have both asked lawyers for SOL standards for KY and the reply is that it really depends on the judge.

I read through all 147 case and not 1 had any issue about the written/oral/implied statute of limitation of Credit Card contract, nor did any have any discussions about any credit card case other than 2 about default judgements that were at issue on cases where default had happened.

Nothing about the SOL on Credit Card contract issue! Now where do I look, or what else to find info on SOL on bank issued Credit cards? This issue is really getting to me as I try to find answers on SOL in my state, written caselaw etc,. Every web site I've looked at for the last year says Ky SOL for CC is 5 yrs, everyone of them! I cannot find 1 caselaw...

[brokeinok]

Everything I could find said open, written and oral were all five years for Kentucky.

If they cannot produce a signed contract, then #1 of the statute would apply.

Actions to be brought within five years. The following actions shall be commenced within five (5) years after the cause of action accrued:

(1) An action upon a contract not in writing, express or implied.

[flacorps]

If I had not responded within the 20 days, I'm positive they would have sought Summary Judgement.

No, that would have been default judgment.

If your answer had basically admitted their case, it would have been "judgment on the pleadings."

And if there had been time for some discovery and it had been done and the facts had appeared to favor them exclusively, it would have been time to move for summary judgment (meaning they would be maintaining that no issues needed trying in court).

[cuthatcard]

No, that would have been default judgment.

If your answer had basically admitted their case, it would have been "judgment on the pleadings."

And if there had been time for some discovery and it had been done and the facts had appeared to favor them exclusively, it would have been time to move for summary judgment (meaning they would be maintaining that no issues needed trying in court).

You're right,,, I meant default... I'm just saying, if I did not respond within the 20 day period, plaintiff would have moved for default judgement and there I'd been. But, I have answered, asked for interoogs., addmissions and production of documents from them over 30 days ago and no answer... from what I've read, I will need to "contact" them and remind them I ask for the items.

If I do not respond in 20-default, no questions- if they don't respond in the 30 I gave them, ? Seems unfair that the plaintiff, who has the burden of proving the claim, does not have to respond to my CMRR items within the time period, whether or not i'm pro se! Most Attys. would tell me, let's give a little more time.....

! I've read the RCP and it seems to along with this as well, the best I can tell. I guess showing the court that you are leiniant as I may need some down the road...

Guess I could move for dismissal at this time since the plaintiff has not produced any docts, no contract(s), and I have denied the accertion that this is my debt I owe them, and all parts of it. Don't know how this motion would fly at this time with the court.

BTW, can I ask for trial by jury at anytime, such as now, pre-trial, etc? I would like the plaintiff to know I want my peers to hear this case? I did not ask for it in my answer..

[flacorps]

Guess I could move for dismissal at this time since the plaintiff has not produced any docts, no contract(s), and I have denied the accertion that this is my debt I owe them, and all parts of it. Don't know how this motion would fly at this time with the court.

No, you need to move to compel, get an order compelling and if they still don't come up with it you can move for a sanction that they can't introduce it and if without it there's no case for them you could move for and get a summary judgment in your favor. In rare cases, you might short circuit that by asking for the sanction of having their pleadings struck, in which case the suit would get dismissed.

[Moriah4]

Their proof of written contract is the sales slip you sign and they will hold you to 15 years for it. Never doubt it. Not for one minute.

You don't belong to the good old boys assoc. and they do what Rick said is exactly what will happen. No doubt about it.

Don't mean to rain on your parade but I hope your other things hold up cause SOL won't you will be Sol with that one if it was all you had. Trust me my friend

Blessings my Friend

Moriah

[cuthatcard]

=KY SOL 5yrs? Look at this own site! Very top of this page, Header! Under Statutes of limitations! Where does this come from? This site, and all others I've seen, state that CC are open accounts and not written, then advertise to consumers/credit repair, etc., seeking help as such! You guys just guide me in the right direction!

BTW, got in the mail today from plaintiffs' Atty. motion to extend time for my requests. Says they have requested it from their "client" but have not received it yet, and they, ATTY., is in the process of following up with the "client" for this information. They are asking for 30 more days. To be heard next week!

Moriah4 Their proof of written contract is the sales slip you sign and they will hold you to 15 years for it. Never doubt it. Not for one minute

Do most JDB keep these records for 15 yrs., IF, there is such a debt?

[montanatim]

This is where it comes from;

TITLE 15 > CHAPTER 41 > SUBCHAPTER I > Part A > § 1602

§ 1602. Definitions and rules of construction(i) The term “open end credit plan” means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time.

This is Federal. The states can and do make their own determinations, you can argue the Federal definition though, may or may not work.

Our adversaries will claim account stated, or written every time if they have a sales slip you signed. Ask for any sales slips with your signature on them in discovery.

[cuthatcard]

This is where it comes from;

TITLE 15 > CHAPTER 41 > SUBCHAPTER I > Part A > § 1602

§ 1602. Definitions and rules of construction(i) The term “open end credit plan” means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time.

This is Federal. The states can and do make their own determinations, you can argue the Federal definition though, may or may not work.

Our adversaries will claim account stated, or written every time if they have a sales slip you signed. Ask for any sales slips with your signature on them in discovery.

I really think KY follows fed. rules on definitions of open-revolving accounts. I think this because this is how I read the statutes.

Still looking for SOL case law for the state of KY........I can't find any in oppossing SOL 5 yrs either. I have asked the "Plaintiff" (JDB) for addmission that SOL is 5 yrs. They asked for more time as they did not answer in 30, judge gave them 30 more, said it was customary!(sp)

Just looking for any help.

Thanks

[flacorps]

You'll be down at the county courthouse's law library looking at their copy of this:

http://west.thomson.com/store/product.aspx?product_id=22112917

and/or

"Kentucky Jurisprudence" under "Limitation of Actions" to find the blurbs about the cases you'll need to look up in West's reporter series.

Bring lots of change for the copy machine...