scumbuster Posted September 18, 2008 Report Share Posted September 18, 2008 I recently lost a case I expected to win.LWT, Inc had sued me in small claims court in Florida for an old debt. The cardholder agreement stated in capital letters that it would be governed by Arizona and Federal laws. I understand that TITLE 15>Chapter 41>Subchapter 1>Part A>Section 1602(I) defines a credit card as an open account. I provided a copy of Arizona's statute of limitations on open accounts, which is three years, and the judge said that I could not consider this an open account unless I had a SIGNED copy of the cardholder agreement, so he ruled that the SOL was 4 years under Florida law. The judge failed to offer any reason for that ruling, or any supporting law. The Plaintiff provided a copy (unsigned) of the cardholder agreement with the complaint.I need case law--either Florida or Federal--recognizing that Section 1602 defines all credit cards as open accounts, and that the SOL that applies here is the one for an open account.LWT is owned by one Hugh Shafritz, and the law firm that represents them is Shafritz and Braten, both of Delray Beach, FL. The address is given as 25 Seabreeze Ave, and S&B is listed as Suite 400, while LWT is Suite 401 (IIRC).In ordinary terms, you would expect them to be across the hall from one another, whereas you might expect them to be adjoining suites. I suspect that they are instead, "Postal" suites--ie, mailboxes at something like the UPS store. If they are using these as their ordinary place of business--which is what they told the corporate registrar of Florida--I suspect they may get into hot water over that. Can anyone in Delray Beach verify what is located at 25 Seabreeze Ave? A photo of the building would be fabulous!If I sue them for malicious prosecution--which I may be able to do--they would have a conflict of interest, though I guess that if Hugh Shafritz agrees to the representation, they might be able to get away with it....Other case law which might help me is regarding the 120-day period for perfecting service. They filed the case initially on 14 Aug 07, while the statute of limitations started on the date of the last payment, which was 7 Dec 03. If the Arizona statute for open accounts can be held to apply, they missed the SOL. OTOH, they failed to perfect service on the initial complaint. they then filed an amended complaint in late January of 08. If there is any supporting case law that the failed perfection of service wipes out the initial filing, and there is no tolling of the SOL caused by the filing in August of 07, and they have to go from 7 Dec 03 until the January 08 refiling, they lose on SOL grounds also!By the way, the judge also had a copy of the final order in favor of their motion for summary judgment already printed up, and he signed it in my presence, which says to me that the case was pre-decided, and nothing I could have said once we got to court would have affected the decision.I need to file the appeal by 3 October 08, so time is of the essence here. Thanks.scumbuster Link to comment Share on other sites More sharing options...
Methuss Posted September 18, 2008 Report Share Posted September 18, 2008 How about law? Regulation Z of the FTC Act defines open-ended accounts.(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. Link to comment Share on other sites More sharing options...
scumbuster Posted September 18, 2008 Author Report Share Posted September 18, 2008 How about law? Regulation Z of the FTC Act defines open-ended accounts.(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.That is precisely the section 1602(i) to which I was referring. I need case law that states that the court should recognize that definition. I already tried to get the judge to accept that, and he refused, so now I need to appeal and to prove that he should have accepted it. Link to comment Share on other sites More sharing options...
Methuss Posted September 18, 2008 Report Share Posted September 18, 2008 You dealing with a State judge? This is the Truth in Lending Act that made the definition. All lending in the USA is subject to its provisions.Well this Judge in Florida determined that credit cards are unwritten agreements.http://www.newyorkconsumerlitigation.com/wp-content/uploads/2008/06/caponevgregorichfladadecounty20080617solinflaissusbstantiveccagrmtnotwrittenkinvirginia.pdfIt's State Circuit court. Lotsa ammo to use in this case. Link to comment Share on other sites More sharing options...
scumbuster Posted September 18, 2008 Author Report Share Posted September 18, 2008 It's not exactly what I wanted, but it does look good. How about the case mentioned in there, with exactly the same Plaintiff? Can you find the case referred to in there as L.W.T., Inc. v. McCorriston, 15 Fla L. weekly Supp. 443a (Fla 13th Jud Cir Nov 19, 2007)?The more stuff I can find that is on point and involves the same Plaintiff, the better chance I have to win a malicious prosecution lawsuit! At minimum, I want a judgment against them for legal fees, but a judgment for malicious prosecution would be even better!thanks.scumbuster Link to comment Share on other sites More sharing options...
merrybucks Posted September 18, 2008 Report Share Posted September 18, 2008 The problem with using Arizona law is that there isn't any case law to back up a 3 year SOL on CC. Most CA's and JDB's use the 6 year written SOL. I won on a 3 year SOL in Arizona only because the JDB lawyer didn't provide any case law supporting a 6 year SOL. Here is the case law I used. http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=284041 Link to comment Share on other sites More sharing options...
Methuss Posted September 18, 2008 Report Share Posted September 18, 2008 Most CA's and JDB's use the 6 year written SOL.That is one of the big pieces of ammo in the link I posted. The judge ruled that a credit card agreement is NOT written because it doesn't spell out the terms of the loan in a fixed manner and isn't signed by either party. So it was considered unwritten/verbal. And the lent money claim was considered unspecified with only a 2 year SoL. Link to comment Share on other sites More sharing options...
nascar Posted September 18, 2008 Report Share Posted September 18, 2008 How about law? Regulation Z of the FTC Act defines open-ended accounts.(i) The term "open end credit plan" means ... An open end credit plan is not the same thing as an open account. People keep pushing this idea and ALWAYS avoid the conflict in terms when it is brought up. Why? Because it shoots the theory down the toilet.Truth is, if you read TILA, you will not find one single reference to the term "open account." Link to comment Share on other sites More sharing options...
mrv121 Posted June 27, 2009 Report Share Posted June 27, 2009 I was wondering if you can help me. I got a summons for a debt that is past the AZ statute of limitations which is 3 years. I have to respond to this summons but I don't know what to write. Link to comment Share on other sites More sharing options...
newryman Posted June 27, 2009 Report Share Posted June 27, 2009 I was wondering if you can help me. I got a summons for a debt that is past the AZ statute of limitations which is 3 years. I have to respond to this summons but I don't know what to write.http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=242744 Link to comment Share on other sites More sharing options...
ditaloca Posted June 27, 2009 Report Share Posted June 27, 2009 (edited) Check out ars title 32 et al and ars title 20 stuff. Www.azleg.state.usWww.azsos.gov/public_services/title_20Links aren't complete use them in search, don't forget to use qoutesAlso google"Arizona case law credit card lawsuit statute of limitationsDeborah walrod flyod bybee dss financial group"South mountain justice courtLower court apeal no. Cc200714554That should be all case law you need.It has other case law sited in it that will help you. As well but that's all you should need!If you can't find the whole case with summary let me know. Edited June 27, 2009 by ditaloca Link to comment Share on other sites More sharing options...
newryman Posted August 18, 2009 Report Share Posted August 18, 2009 Take a look at this casePORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13 Fla. L. Weekly Supp. 560a 2006 Link to comment Share on other sites More sharing options...
Recovering Attorney Posted August 19, 2009 Report Share Posted August 19, 2009 You can find the LWT cases by going to the Florida courts. Or, see if you can buy a day pass at LexisOne and do a name search. But the Gregorich case tells you a lot about how the flroida courts will apply the other laws Link to comment Share on other sites More sharing options...
Recommended Posts