A warning about AA if you're being sued

[yaddah39]

ok, i've been dealing with AA and they are A$$backwards. in dec. i filed my complaints with the FTC, AG, BBB...well i got a "response to complaint" email from the bbb they recieved from AA. these idiots sent a fax to the bbb noting that it's a 10 yr. SOL on written agreements and they were well inside the SOL when they sued me for a time barred debt in sep. 07. also stating my orig. date of delinquency was oct. 2000 (that's correct). how stupid are these people do they not know that CC accounts are considered "open accounts"?

now here is the shock part of it all. they even faxed a copy of the orig. credit application from providian bank. it was just one of those congrat. instant approval apps. it has my ssn, phone number and my signature. i didn't think they had this info. the summons they sent me didnt have the orig. CC app. somehow they got it from providian bank. i can't wait to show my attorney this garbage.

So my warning is, if you get sued by AA they may just have the orig. CC application if you go in a say this isn't yours or you don't remember.

[nascar]

how stupid are these people do they not know that CC accounts are considered "open accounts"?

Not stupid at all. You're relying on bad information. Credit cards fall under the 10 year SOL for written agreements in Missouri. ... Sorry.

[yaddah39]

how is it that i'm relying on bad information when it's right here on this site? the SOL on credit cards which is considered open-ended accounts in MO. is 5yrs. where i'm thinking they've got the 10yr. SOL is on judgments. i looked that up and it's 10 yrs. here.

[nascar]

The whole "all credit cards are open accounts" angle is splattered all over the internet. I'm not sure where it started, but it is based on a misinterpretation of a definintion included in one law, incorrectly applied to another.

You'll find that Missouri courts lean toward 516-110 with regard to credit card agreements.

[indeepdodo]

Florida likewise. Treated as written agreements.

[Lecasbas]

so my warning is, if you get sued by AA they may just have the orig. CC application if you go in a say this isn't yours or you don't remember.

This is interesting. I wonder if some of the OC's are starting to send the original signed agreements with the assignments or did AA send after it for a price?

Does AA have proper assignment as well? They cannot collect otherwise - even if the debt is legit.

[yaddah39]

The whole "all credit cards are open accounts" angle is splattered all over the internet. I'm not sure where it started, but it is based on a misinterpretation of a definintion included in one law, incorrectly applied to another.

You'll find that Missouri courts lean toward 516-110 with regard to credit card agreements.

i don't know about that nascar, not saying that you're wrong, but i've talked with a friend of my sister who went to court in a similar situation with a CA and she used the SOL as her defense. also, lots of attorneys that i've talked to including the one i got now says it's a 5 yr. SOL on CC debt.

[yaddah39]

This is interesting. I wonder if some of the OC's are starting to send the original signed agreements with the assignments or did AA send after it for a price?

Does AA have proper assignment as well? They cannot collect otherwise - even if the debt is legit.

answering the first part of your question, i think they are. but when i called the OC to get some information about my old cc they didnt have a record of it. i thougt that was strange. when AA sued me, in the summons all they had was some "terms of agreement" attached to it, not the orig. application. maybe AA got mad because i complained to the bbb and paid to get it from the OC, i dunno nothing would surprise me.

second part of your question, yes they did have proper assignment.

[Focus2069]

why not contact a few consumer attorney's in your state to find out for sure.

A simple phone call should suffice, I dont think a lawyer would charge you for an answer to that question.....well, maybe they wont charge you, lol.

better to find out for sure before going to court.

[nascar]

lots of attorneys that i've talked to including the one i got now says it's a 5 yr. SOL on CC debt.

Here's the thing. If you read the Missouri statutes on SOL, it's either 516-110 or 516-120. Neither one specifically identifies credit cards or uses the word "credit card" anywhere. So, the fact that the debt is a credit card has nothing to do with whether the debt falls under the 5 or 10 year statute.

What does matter is whether the agreement is in writing or not; whether it meets the required elements of a written contract. If the creditor is able to prove it does, then the 10 year statute applies. If the creditor cannot show the existence of a written contract, then the 5 year statute would apply - credit card or not.

In almost every circumstance the creditor, or JDB is going to allege that the contract is written, thus the 10-year statute applies. Unless you can show differently, i.e. proving that one or more of the required elements is missing, you're going to be stuck with the 10 year SOL. If you go into court saying nothing more than "it's 5 years because it's a credit card," you're going to get hammered.

[Lecasbas]

In almost every circumstance the creditor, or JDB is going to allege that the contract is written

This would work in default cases because no one shows up to tell the creditor or JDB to prove it.

This just shows you how underhanded these characters are. Creditors and JDBs know that most of the defendants won't show and later chase after the "judgment debtors" with the judgment the defendants would not protect themselves from.

Kind of like beating yourself with a stick.

[nascar]

Here's a good Missouri case that illustrates what I'm saying.

The company alleged the parties entered into a contract, whereby the company would extend credit to the customer. The company alleged that the customer breached the terms of her contract by failing to pay the amounts for which credit was extended. The customer denied the allegations and asserted the affirmative defense that the action was barred by the statute of limitations. The appellate court ruled that the action was barred by the five year statute of limitations under Mo. Rev. Stat. § 516.120 (2000). The customer made a partial payment on December 2, 1999, and the company's petition was not filed until January 3, 2005. The ten year statute of limitations under Mo. Rev. Stat. § 516.110 was not applicable because the company did not produce a written promise by the customer to pay money.

For the full text version of the opinion, see Capital One Bank v. Creed, 220 S.W.3d 874 (S.D. Mo.2000)

[merrybucks]

Well said Nascar. Judges always look to case law to support a position.

[yaddah39]

Here's the thing. If you read the Missouri statutes on SOL, it's either 516-110 or 516-120. Neither one specifically identifies credit cards or uses the word "credit card" anywhere. So, the fact that the debt is a credit card has nothing to do with whether the debt falls under the 5 or 10 year statute.

What does matter is whether the agreement is in writing or not; whether it meets the required elements of a written contract. If the creditor is able to prove it does, then the 10 year statute applies. If the creditor cannot show the existence of a written contract, then the 5 year statute would apply - credit card or not.

In almost every circumstance the creditor, or JDB is going to allege that the contract is written, thus the 10-year statute applies. Unless you can show differently, i.e. proving that one or more of the required elements is missing, you're going to be stuck with the 10 year SOL. If you go into court saying nothing more than "it's 5 years because it's a credit card," you're going to get hammered.

nascar, i understand what you're saying and AA is wrong for trying to pass this off as a written contract when it's not. it was a small instant approval application that came in the mail. it didn't contain the required elements to be considered as a written contract. no court cases in mo. shows in favor of a JDB winning the 10 yr. SOL argument. furthermore, i cant see any court ruling in favor of a JDB when it was established by the TILA that cc are considered open-ended accounts.

[manOman]

i don't know about that nascar, not saying that you're wrong, but i've talked with a friend of my sister who went to court in a similar situation with a CA and she used the SOL as her defense. also, lots of attorneys that i've talked to including the one i got now says it's a 5 yr. SOL on CC debt.

I was sued by AA in Missouri. The judge told me if they have your signature on a written document that makes it a written contract, which makes it 10 year SOL. So your next line of defense is proof of ownership.

[nascar]

it was established by the TILA that cc are considered open-ended accounts.

That is what I was referring to earlies. TILA has nothing to do with the statute of limitations discussion. The definition of open-end credit plan has been taken out of context and some people attempt to use it interchangeably with the commercial definition of "open account," otherwise known as a "merchant account." The two are completely different.

As I have said before in other posts, if you take the time to actually read TILA, you will see that one of the requirements of an "open-ended" credit plan is that it the agreement between the debtor and creditor must be written. By definition, a properly executed "open-ended" revolving credit plan is a written agreement.

Of all the subjects we discuss, I think this is the one that is the most misunderstood.

[admin]

In some states, credit cards are open accounts, because the open account definition is clearly spelled out. No it doesn't say credit card, but the description of the account makes credit cards the only fit. California is like that.

Where it's vague or nebulous, then case law is all you have.

[nascar]

the open account definition is clearly spelled out.

Isn't Arizona one of those examples?

[admin]

Yes, I believe you are right!

[merrybucks]

Arizona is vague. The revised statutes don't define an open account and there isn't any Arizona case law to support a CC as an open account.

[yaddah39]

In some states, credit cards are open accounts, because the open account definition is clearly spelled out. No it doesn't say credit card, but the description of the account makes credit cards the only fit. California is like that.

Where it's vague or nebulous, then case law is all you have.

i read the capital one v. creed case here in mo. capital one said the cc acct. was a written agreement and they were in the sol when they sued creed. it went to the state supreme court and they upheld the judgment in favor of the debtor that her cc was considered an open account which made the 5 yr. sol apply.