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motion for summary judgement on time barred debt


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i have a capital one credit card debt dating back to June 2002 when the account went into default. i was served a summons in October 2007, received a letter from the law firm who initially claimed to be representing Capital One, however after my initial response to the summons, in which i stated the debt in question had exhausted the nevada statute of limitations, i received a letter from the same law firm, howver this time it stated Capital One/TRAKAMERICA as the client, and yes the letter stated it was from a collection agency, however the amount claimed in the summons was half of what the letter was requesting. the letter also requested i contact the firm to discuss an amicable resolution. as i did not respond i have be served with a motion of summary judgement and requested to appear on June 1st. it is my feeling that this firm has violated the FDCPA and NRS however i cannot find case law to back my position, and i am also afraid that i will not answer correctly and loose my case, although i feel i have the law on my side. can someone help me on Nevada Case Law. i have already searched the sight suggested on the blog, Precydent.com with no luch and i have printed all suggestions to motions, filings, etc. however i have inclined to file a cross motion of summary judgement for the B---s--- this firm has put me through. i have lost countless hours and i could REALLY use some direction.

any help at all.

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You need to double check Nevada law when the "cause of action accrues", to make sure SOL is in play.

If it is, just submit an affidavit testifying to the timeline of events. Include in your affidavit that you admit this is your account, but the statue of limitations has past and the Plaintiff's ability to recover has past.

If I were you, I'd submit a counter summary judgment motion since the other side CAN NEVER recover a debt past SOL. I'd include a motion to recover YOUR costs.

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Is the date of first default or last activity being reported by the plaintiff on your credit reports and/or do you have any sort of documentation that it defaulted in 2002?

Also, are they claiming it is a written contract, which has an SOL of 6 years? If so, they served the summons within SOL if they served you in 2007

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http://www.creditinfocenter.com/rebuild/statuteLimitations.shtml

If they are arguing written contract, they know its over SOL!

Forget about researching cause of action accrual, they are hanging their hat on written contract!

Read the section ABOUT WHAT OPEN ENDED ACCOUNT MEANS UNDER FEDERAL LAW AT LINK ABOVE. Put this in front of the court in triplicate if you have to.

In NV 4 years on credit card!!!!! (Credit cards are ALWAYS open ended account)

This little tidbit of info tipped the other sides hand. They are bluffing and you have a full house.

Good luck at stomping them into the ground.

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http://www.creditinfocenter.com/rebuild/statuteLimitations.shtml

If they are arguing written contract, they know its over SOL!

Forget about researching cause of action accrual, they are hanging their hat on written contract!

Read the section ABOUT WHAT OPEN ENDED ACCOUNT MEANS UNDER FEDERAL LAW AT LINK ABOVE. Put this in front of the court in triplicate if you have to.

In NV 4 years on credit card!!!!! (Credit cards are ALWAYS open ended account)

This little tidbit of info tipped the other sides hand. They are bluffing and you have a full house.

Good luck at stomping them into the ground.

Reading the OP is it not possible the last date of activity (based on +180) could trigger an issue of proceedings just inside the SOL? We know when the OP was served what we dont know is when the summons was issued. :dunno:

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NRS 11.190 Periods of limitation. Except as otherwise provided in NRS 125B.050 and 217.007, actions other than those for the recovery of real property, unless further limited by specific statute, may only be commenced as follows:

1. Within 6 years:

(a) An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States, or the renewal thereof.

(B) An action upon a contract, obligation or liability founded upon an instrument in writing, except those mentioned in the preceding sections of this chapter.

2. Within 4 years:

(a) An action on an open account for goods, wares and merchandise sold and delivered.

(B) An action for any article charged on an account in a store.

© An action upon a contract, obligation or liability not founded upon an instrument in writing.

An open account and an open ended account may not be the same. There have been several discussions on this board concerning the difference between the two.

For Nevada it appears as if NRS 11.190 classifies credit cards as open accounts and subject to a 4 yr. SOL. The OP would be wise to check case law on this statute

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is arguing 6 years under written contract. I think he's aware his cause of action accrued outside the 4 year open ended limitation in Nevada.

There is little question credit cards in NV are 4 year SOL.

The cause of action accrues upon 2 missed payments in WI. About 60 days after last activity.

Does anyone have solid info on when the cause of action accrues in NV?

Irregardless, make the open-ended account SOL argument WITH THE TRUTH IN LENDING FEDERAL LAW ON DEFINING OPEN ENDED ACCOUNTS. Judges are lazy, they will just calculate 4 years from last activity most of the time.

Leave it to debt lawyer to PROVE and argue the cause of action accrued later, it will be tough for him to do it.

******Put your points in an affidavit and submit to court. Do NOT address cause of action. YOUR AFFIDAVIT IS FACT BEFORE THE COURT.******

Debt lawyers rambling about when cause of action accrues is NOT FACTS OR EVIDENCE BEFORE THE COURT. Object if he does! He cannot counter your affidavit without a witness. "Statements of counsel are not sufficient for a motion to dismiss or for summary judgment" He needs a fact based witness from his client to properly testify on when the cause of action accrued.

UNCONTESTED AFFIDAVITS ARE GOSPEL!

If you say you believe the sky was blaze orange red at sunset via affidavit. As far as the court is concerned its blaze orange red. If that affidavit remains uncontested, it does not matter if the sky actually looked a little more grey than orange that day, or even if you are color blind. The lawyer saying he thought the sky was grey does not matter. He cannot witness events he does not have firsthand knowledge of. The only thing that can change that affiant fact before the court is another witness challenging your version of events. Meaning they have to come up with someone to say it was grey that day, or that you are colorblind. Until then, the court can only look at the blaze orange sky as gospel fact.

I hope its clear.

Since you will have the only fact before the court with your affidavit....

Screw him out on procedure rather than laboring about when the cause of action accrued.

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The following definitions from the NRS might help in preparing your opposition to a MSJ.

NRS 97A.050 “Credit card” defined. “Credit card” means any instrument or device, whether known as a credit card, credit plate, or by any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, property, goods, services or anything else of value on credit.

(Added to NRS by 1995, 2597)

NRS 97A.060 “Credit card account” defined. “Credit card account” means an open line of credit offered by an issuer to a cardholder which is accessed by obtaining money, property, goods, services or anything of value by the use of a credit card.

(Added to NRS by 1995, 2598)

Again it appears that credit cards are a 4 year SOL. The opposing counsel will argue that when you signed your CC agreement and/or each charge slip that it became a written contract. "Open account for goods, wares and merchandise sold and delivered" and an "open line of credit offered by an issuer to a cardholder" could be entirely different. Again, the OP would be wise to seek out case law to support his position.

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