Sued by Attorney of FIA Card Services/Bank of America

[2fightback]

Hi:

This is my second lawsuit I've dealt with regarding old credit cards. The first go around, I hired an attorney, but lost the case. I insisted he use the SOL defense, but it never came up in trial. Anyway, live and learn

I am in the middle of a Pro Se with an attorney representing FIA Card Services, formerly Bank of America.

Long story made short, the original credit card was through Fleet Credit Card Services. My ex probably opened it with me as an authorized user. The last known payment was in Sept. 2003. They improperly served me in Sept. 2008 and had to start over with an alias summons.

In their first set of Supplemental Disclosures, the attorney only attached copies of three credit card statements dated July, August, & September 2003 in Fleet's name, and several others beginning in July 2005 in Bank of America's name. Not sure what happened to 2004, but I'm guessing Fleet sold to BOA in late 2003. However, in their second set of SD's, they attach the same set of credit card statements, but they also throw in one dated 10/28/06 that shows the balance due is $0 and shows a line item under "Payments and Credits" that says "CHARGE-OFF ADJUSTMENT" and credits out the balance of $3680 and shows the payment due is $0. Then they also attached a copy of a Bank of America Credit Card Holder Agreement which is copyrighted in 2003. However, attached to the Alias Summons is a BOA Card Holder Agreement copyrighted 2000. The Amended Complaint states that "Bank of America has consolidated it's credit card program into one bank: FIA Card Services, N.A." There is no proof provided anywhere that shows how BOA ended up with the account from Fleet.

To me, I am assuming the following are in my favor:

1.) The fact that they have no proof of obtaining the debt;

2.) I had requested debt validation from two other law firms in April 2004 and May 2006 and never heard another word from either;

3.) The debt has continually been reported on my credit report despite my requests;

4.) The Cardholder Agreement states the agreement is governed by Arizona and Federal Law.

From what I understand, there are disputes regarding the SOL in CO - some say 3 years, but most say 6 years. I cannot find any CO court decisions that uphold the 3 years and my attorney on the first case didn't think it held ANY merit whatsoever. However, AZ SOL seems to be 3 years. With the recent decision in Florida about the governing law, I think I should try to get them to admit to the AZ provision in the agreement.

I received the 10 Request for Admissions and need to respond to that ASAP. They only refer to the credit card account number (same credit card number is listed on both Fleet & BOA statements) and want me to admit that:

1) it is my credit card, 2) that I received a Customer Agreement and periodic updates, 3) that I used the card, 4) that I received periodic statements (note that only the Fleet statements show my former address....all of the BOA statements show my ex-husbands address, but both names are on the statements), 5) that I never disputed any billing on the credit card statements within 60 days of that statement, 6) that I acquiesced to the terms and conditions by accepting and using the card, 7) that I have defaulted under the terms of the CC agreement, 8) that as of 03/31/2004, the balance was $3680 (why did they not provide statements for 2004?). End.

How do I answer their request for admissions? What else do I need to do to hammer away at this case? Do I have grounds to ask for a dismissal based on lack of proof that BOA owns the debt? And what about the statement in 2006 that shows the balance was charged off by BOA? Does that mean they sold the debt (yet again) to FIA Card Services?

Can I in turn request that they answer request for admissions? If so, can I demand proof of a signed application, actual credit card charges, etc., etc.?

I appreciate any help and comments....I want to make sure I get this right!

[legal_loansharking]

Fleet was actually purchased by Bank of America

Bank of America then purchased MBNA

After the merger of BOA and MBNA they created FIA card services and transferred the data from BOA to MBNA

Do they actually have proof that the debt is valid?

I doubt it, seriously.

In your state has the SOL run out?

[2fightback]

The only "proof" they have disclosed are copies of statements and a card holder agreement.

Last known payment was 09/2003. The complaint was filed the first go-around on April 3, 2008. The alias summons was then served in late June 2008.

On paper, Colorado appears to have a 3 year SOL on open ended agreements under the UCC. However, there is wording that makes it easy to deem it as a written contract with a 6 year SOL. In fact, the attorney for FIA made some smartie comment to that effect during a pre-trial phone conference. I have yet to find someone who has successfully won a case in CO based on the 3 year SOL defense. If anyone here has, please let me know!

During the first pre-trial conference, the Judge had ordered that the Plaintiff (FIA) file a brief with the Court. I then was given 15 days to respond. The Judge was then going to review the briefs and make a determination on the SOL issue. However, that whole thing was vacated because I successfully proved that I was served improperly (summons was found on the neighbor's lawn).

During this second pre-trial conference, none of the above was mentioned and the Judge just set a trial date in January. Should I be filing something that asks for the whole brief thing again? It seems this could all come to an end if I could successfully prove my theory of the 3 year SOL.

[merrybucks]

Arizona has a 6 year SOL. CC's are considered written instruments.

[Recovering Attorney]

I don't believe the UCC applies to credit card contracts, so I would not rely on that.

I have the same fight with BoA right now. I sent you a private message. Let us talk.

[retmar]

The Colorado SOL is only one that applies here. The AZ SOL does not. You are a resident of CO. The only way they can use the AZ is if you return to AZ to live. Then, if the AZ SOL had passed, they can go to court and show your non-residency to move forward. Even under "full faith and credit", the laws of your state of residence takes precendence. Yes, it was decided that the "creditor" can use their state's SOL, but, if I remember right, that only applied to arbitration. You would have to look that up to be sure. It was one of those cases I do not agree with, period.

If it is true you were only an AU, they cannot go after you, even if a community property state. Your name and signature must be on the agreement/contract. Even if by divorce , the court stuck you with the debt, it cannot be enforced. To double check on this, look at your credit report for this account. Usually it is referenced as to being an AU.

In either section 103 or 104 of the TILA, it states that a CC is open end. A way to look at it to not have to always wonder is that an open end is an account that has a rotating balance and rotating payment, while a closed, such as an auto loan, has a set payment for a set period of time, with a balance that decreases, not flucuates.

If it is true this account went delinquent in 2003, they are barred by statute to continue. They have no legal recourse available to them, and, the judge must dismiss with prejudice. You can submit Kimber v Federal Financial to show how the court looks at the filing of a suit on a claim to old to be enforced. And, if the judge where you appear refuses to dismiss for any reason, you must ask the court to continue and move to a higher court, preferably District, where decisions are made based on the laws. Remember, as the judges wrote in Spears v. Brennan, "it does not matter that a debt be valid, what matters is how it is collected" (words along that line).

[retmar]

Recovering Attorney,

The UCC does apply, but, only if the consumer asks/demands their rights, as found in UCC 1-207. This is one reason why you see many people, as well as businesses, write "all rights reserved" somewhere in their verbiage, or dislcaimers. Remember, when you step into Equity Court, your rights under the Constitution do not exist unless you ask for them. You have allowed yourself to be "judged" by just passing through the gate. Equity/Merchant Court is "colorable", not common. Their jurisdiction is under either Roman Civil Law or Admirality Jurisdiction. Why do you think they have the Braided American Flag?

Everyone, to have this work for you, you must know exactly how to address the court, or, the judge will have you for lunch.

One needs to read the history of our courts to understand much of what I'm talking about. This is not taught in law school, but, by taking the time to do your homework. A fair example of this is for you to read, if you can locate, "Swift v Tyson, 1840", and, Erie Railroad v Tompkins, 1938. The short version is both pertain to the same thing, but, Swift was decided at the Common Law, while Erie was decided on commercial Negotiable Instrument. To understand, you would have to begin your venture from June 5, 1933, when FDR suspended the Gold Standard.

[Recovering Attorney]

Seems to me I read Swift vs Tyson and Erie vs Tompkins in law school, but that is the last I ever heard of them.

There is an argument to be made that AZ law would aply in this case, and it is worth making if it helps you. You might seek out a NACA member in your area

[retmar]

I find that interesting they had those two cases available, but, never "talk" of how corrupt our court system is today. It is just amazing to me. To me, this should be a class in itself, just so one would understand and be able to react accordingly.

I wish I could remember that case on a "foreign" state's laws taking precendence, but, cannot remember it. I know we had discussed it either earlier this year, or end of last. It was a good thread. It had to do with arbitration, and related to Delaware's laws, where CC originated, against the consumer's own state, or something like that. If anyone finds it, please share.

[merrybucks]

I would stick with Colorado law. Arizona is a community property state, Colorado isn't.

[2fightback]

Thanks for all of the advice. As I mentioned before, there are lots of discrepancies as to whether the credit card SOL in Colorado is 3 years or 6 years. At any rate, I used it as one of my defenses, but I definitely won't rely on it. I need something more concrete.

It sounds like I should explore the AU defense a little more. I was told by someone that the main card holder is always listed first on the credit card statement. My name appears first, then my ex's. Does that logic really apply? If so, am I doomed trying to go the AU route? And if I go that route, won't I be automatically admitting to using the account?

My main worry right now is responding to their Request for Admissions. I understand that I either admit to the question (I listed all 8 of them in an above post), or object to it. Can someone give me an example of a legitimate objection so that I can take it from there?

What should I be doing next? I assume that I need to request from them something along the lines of a Demand for Interrogatories, Admissions and Production of Documents. I would presume I want them to either cough up the original credit card application, copies of instruments signed by me for purchases, etc., but is there even more I should be asking for?

Thanks again for all the input. I am in a tight bind since there are no attorneys in my area who deal with this type of thing. The last one I hired was a joke and specialized only in family law and DUI's....that's why we lost the case

[retmar]

The TILA will take precedence on the matter regarding the type of account a CC is. Remember, with collections, always look at FDCPA 816, to assist you in determining your avenue of defense. Since most states always cede to federal, unless the law is affording more protection to the consumer, it would be hard pressed for a confusion to prevail. The intent of most laws when written is to try and find a happy medium so as to not lean the decison to one side only, while at the same time causing either side to have to present credible evidence to even come close to prevailing.

Regarding the AU, most often you are correct as to the primary being listed first in address. But, it is not always the same. Some just place the DH's name first as they are most commonly accepted as the "breadwinner", so to speak. Also, who is to say the CA didn't do this to try and get you to pay? Your only way to attack this is for you to know if the account was yours, or, your spouses. Who opened the account? Did you sign the agreement at any time? Even if you have to contact the spouse, do it. Don't push the "blame" to either party. Be diplomatic. If you find you are liable, work for an agreement between you two to resolve.

You need to respond to the request, or, you might as well open your wallet. As to how to respond, think of what you can or cannot recall in regards to this account. By this, let's say the account was your spouse's, and she allowed you to charge on the account, this, in no way, proves liability. As an AU, you had permission to charge on the account. In short, until they can show proof of your signature on the agreement in either the #1 or #2 spot, the account is not yours.

An example would be to respond that you cannot recall this account, therefore, until the plaintiff can show proof by original copy of an agreement bearing your signature, you must deny. No court can hold you liable by association only. They must be able to prove it.

[ILresident06]

The Colorado SOL is only one that applies here. The AZ SOL does not. You are a resident of CO. The only way they can use the AZ is if you return to AZ to live. Then, if the AZ SOL had passed, they can go to court and show your non-residency to move forward. Even under "full faith and credit", the laws of your state of residence takes precendence. Yes, it was decided that the "creditor" can use their state's SOL, but, if I remember right, that only applied to arbitration. You would have to look that up to be sure. It was one of those cases I do not agree with, period.

I've also been trying to figure this out (which state's SOL) but this IS regarding an arbitration.

My fiance received an arbitration claim from CACV who bought up his alleged MBNA credit card debt. Date of last payment was 10/29/04. Illinois' (our state of residence) SOL is 5-10 years. However, the arbitration sites Delaware law in its claims to charge a 16% interest rate and that "Delaware law specifically provides that an attorney fee may be awarded in an amount up to 20% of an unpaid claim."

Can they try to use 1 state's laws to justify their claim amount but then try to use the SOL of another state? Delaware's SOL is only 4 years, so by that standard the SOL on this debt has expired, which greatly improves our defense (although given that the arbitration is to go through NAF, I'm still dubious that that would make them rule in our favor.)

[ILresident06]

Oh, and FI's account was also supposedly a joint account w/ his ex girlfriend. He however doesn't really remember opening the account or what the charges might have been for.

[retmar]

This is the exact case I was referring to. Unfortunately, it is a correct decision. I would really jump for joy if someone could find a way to have this reversed, but, so far, nothing.

We did have a thread on this some time back. I'll try to find it, but, am somewhat tied up today. If anyone can go into my history of posts, please do so and find it to refer back to this one.

[henry1018]

Since the proper jurisdiction is the state where the contract was originated or the state where you currently reside, who determines which one is correct or most corresct??

[ficofightr]

Isn't the statute of limitations for an "open account" (i.e. credit card) 3 years in both CO and AZ?

If you needed to use AZ law here, and your cardholder agreement specifically states AZ law applies, you can see if CO has a borrowing statute, but it looks like SOL for open account is 3 years so you should be fine.

[ficofightr]

I've also been trying to figure this out (which state's SOL) but this IS regarding an arbitration.

My fiance received an arbitration claim from CACV who bought up his alleged MBNA credit card debt. Date of last payment was 10/29/04. Illinois' (our state of residence) SOL is 5-10 years. However, the arbitration sites Delaware law in its claims to charge a 16% interest rate and that "Delaware law specifically provides that an attorney fee may be awarded in an amount up to 20% of an unpaid claim."

Can they try to use 1 state's laws to justify their claim amount but then try to use the SOL of another state? Delaware's SOL is only 4 years, so by that standard the SOL on this debt has expired, which greatly improves our defense (although given that the arbitration is to go through NAF, I'm still dubious that that would make them rule in our favor.)

Look up "borrowing statute" and see if IL has one.

[merrybucks]

Isn't the statute of limitations for an "open account" (i.e. credit card) 3 years in both CO and AZ?

If you needed to use AZ law here, and your cardholder agreement specifically states AZ law applies, you can see if CO has a borrowing statute, but it looks like SOL for open account is 3 years so you should be fine.

Arizona SOL is 6 years. CC are considered written instruments. There isn't any case law to back up a 3 yr SOL.

[legal_loansharking]

[quote name=My fiance received an arbitration claim from CACV who bought up his alleged MBNA credit card debt. Date of last payment was 10/29/04. Illinois' (our state of residence) SOL is 5-10 years. However' date=' the arbitration sites Delaware law in its claims to charge a 16% interest rate and that "Delaware law specifically provides that an attorney fee may be awarded in an amount up to 20% of an unpaid claim."

MBNA was a National Bank based in DE only, did not have branches in any other state than DE. They could use the DE laws you refer to. Your rights in this claim come from your state laws and Federal Law of course. Bank of America bought MBNA in 2006. A good attorney will be able to pick apart the fees from the time BOA bought them.

[retmar]

I found the thread I was referring to. Could not find a way to add it here, so, commented there to bring it up again.

It is in the "Collections" section and titled "Wolpoff & Abramsom, NAF vexing me".

If someone can attach this to the other, please do so. I've got a new security system that bugs me daily and won't allow me to do certain things. In short, I'm still working out the bugs.

[merrybucks]

Here is the link http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=265953 Hope this helps.

[retmar]

Thanks, merrybucks!

Hope this will help those who need it.