when does SOL start?

[malinrott]

Everything I read says the first day of default or when cause of action accrues.

I just received a huge packet from Cap one. They included a statement from Sept 2006 that shows I didn't make a payment and they assessed a late fee.

SOL in AZ is three years.

I was served on Sept 11 2009

Am I past the SOL?

Cap one says SOL starts the day the account was charged off which is stated a Nov 2007

[MG05]

Capital One always says the SOL is the date of the charge off that is why they re-age the charge off date every month and add more and more interest to the principle balance! Capital One never lists the date of last activity on any credit report. They purposely do this to lower your credit score and continue to punish you! Just for the record “I hate Capital One”!

[malinrott]

The agreement says:

“You will be in default of Your Agreement with us if:

(1)you do not make any payment when it is due”

“If you are in default we may take the following actions without notifying you.

(6) Pursue any other action against you that the law allows which includes the filing of a lawsuit against you or requiring arbitration as described in the Arbitration Provision Section.”

[MG05]

I have two word for the Capital One Agreement

"S--K it"!

[malinrott]

should a send a motion to dismiss because the account is time barred?

[Morganna]

When was that Sept payment due? refer to your statement dates ...

Look closely at the first 30 day late -- you paid Aug right? and never made another payment?

You filed your answer timely? Did you cite any Affirmative Defenses ie: SOL?

[malinrott]

When was that Sept payment due? refer to your statement dates ...

Look closely at the first 30 day late -- you paid Aug right? and never made another payment?

You filed your answer timely? Did you cite any Affirmative Defenses ie: SOL?

Sept 13, 2006 payment was not made by that date.

Yes answer was filed and Yes SOL was listed as an affirmative defense.

[Morganna]

IMO they are within SOL for suit --

That Sept pmt was due by 9/13/06 -- the filing on 9/11/09 looks to be within SOL by two days ...

Were you charged a late fee and if so when?

[malinrott]

IMO they are within SOL for suit --

That Sept pmt was due by 9/13/06 -- the filing on 9/11/09 looks to be within SOL by two days ...

Were you charged a late fee and if so when?

I was charged a late fee on 9/13/06 which means I defaulted before that. Aug?

[Morganna]

You were charged a late fee as of 9/13 ...

When was the last payment made on this that had the account current and useable?

[malinrott]

The last payment was made 7/17/06

that makes sense too because it was July 2006 that I was laid off from my job and stopped paying bill except mtg.

So the day of default if 7/18/06 and I am outside of AZ's 3yr SOL right?

Edited November 18, 2009 by malinrott

[malinrott]

I found this doing some research on AZ cases.

****

The appellate court in Cheatam v. Sahuaro Collection Service, Inc. held that “[a] cause of action accrues whenever one person may sue another… [A] party’s failure to assert a cause of action does not mean that the cause of action has not accrued.”2 In Krumtum v. Burton,3 the Arizona Supreme Court addressed the accrual of causes of actions and the statute of limitations in A.R.S. § 12-543 cases specifically. The Krumtum Court found that the services provided by the plaintiff to the defendants had been furnished on an open account.4 The Court defined an open account as “one where there are running or concurrent dealings between the parties, which are kept unclosed with the expectation of further transactions. * * *’ Connor Livestock Co. v. Fisher, 32 Ariz. 80, 85, 255 P. 996, 997 (1927).”5 The statute of limitations for an open account is three years.6 The statute of limitations begins to run on an open account from the date of the last item…7 The defendants in Krumtum had successfully plead the statute of limitations before the trial court in a motion for summary judgment. The plaintiff appealed the trial court’s finding. On review, the Supreme Court held that because the statute of limitations had run on the cause of action on the open account, the grant for summary judgment had been proper.8 (“[T]he last item charged on the open account was more than three years before the action was commenced and the statute of limitations having been pled is a bar to the suit.”)9 In this case, the credit card agreement between the appellant and First USA Bank, (which was subsequently assigned to the appellee) was an open account.

[merrybucks]

I was charged a late fee on 9/13/06 which means I defaulted before that. Aug?

When did the account become delinquent? SOL clock begins to run when the first cause of action accrues. When did you breach the contract? That usually happens when you are 30 days late.

[malinrott]

When did the account become delinquent? SOL clock begins to run when the first cause of action accrues. When did you breach the contract? That usually happens when you are 30 days late.

The last payment was 7/17/06

[Morganna]

Last pmt being 7/16 ---

If you use that date as the last time the account was current and useable and can show no payment for Aug thru present then yes SOL has passed and they filed a debt that could be considered time barred.

The fact you claimed that in your answer as an AD is wonderful --

Read your RCP and research how and when motions are filed ....

MTD or MSJ may be options for you ....

[merrybucks]

The last payment was 7/17/06

That means you probably breached the contract in Aug. of 06. I wouldn't count on the judge being aware of the 3 year SOL ruling. I would file a MTD and include a copy of the decision.

[scardKaren]

That means you probably breached the contract in Aug. of 06. I wouldn't count on the judge being aware of the 3 year SOL ruling. I would file a MTD and include a copy of the decision.

And don't forget July and Aug both have 31 days.

[pcmech]

Sorry to bring up an old post, but how did your SOL defense turn out?