DebtBgone

RE-evaluating SOL in my case

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ok, So just to recap: This is my case.

1. Who is the named plaintiff in the suit?

CAVALRY SPV I LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) McHughes

3. How much are you being sued for?

8000.00

4. Who is the original creditor? (if not the Plaintiff)

Bank of America

5. How do you know you are being sued? (You were served, right?)

Served summons

6. How were you served? (Mail, In person, Notice on door)

certified mail

7. Was the service legal as required by your state?

Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None, I never even knew that they were collecting

9. What state and county do you live in?

Arkansas, sorry I can't give you my county

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

9-2008

11. What is the SOL on the debt? To find out: 3 years

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). see below

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

NO

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

NO

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

30 days

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Affidavit and an illegible copy of a cardmember agreement

I believe this account is past the SOL. Just received a hard copy of my credit report, and it says the last payment was made on 9-2008. In AR the SOL is 3 years per Ark. Code Ann. § 16-56-101 et. seq.

I have already answered the complaint, interogs, and admissions along with POD.

If you need to see all of that I will link it to you. I have also sent off my own POD and ROGs. I asked for the last payment made on the alleged account in it. I also included my own affidavit to in effect have dueling affidavits.

Do I need to go ahead and pursue a MSJ based on the SOL, or do I need to amend my answer to include the SOL?

Thanks for any assistance!

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I also will add I DID NOT use any affirmative defenses, but the time barred, SOL needs to be addressed somewhere. I am just not sure how to address it now.

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I was in Judge Moody's court arguing the SOL but did not have their discovery yet. I told him I was just preserving the argument on the record since it was an affirmative defense and did not want to lose the defense.

He told me I could argue it as part of summary judgement after I got all their discovery since I did not have enough info to be arguing at this time.

Get ready for a fight on the three years. As you probably know, if you call 100 lawyers in Arkansas and ask them what the statute of limitations is on a credit card, 99 are going to tell you five years.

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Yep, I did they ALL said 5 years. I remembered what you told me before, and I started really digging. I am finding a bit of conflicting info though. Is it 3 years from the last payment or 6 months after the last payment?

I found both of these. I looked at the law, and it says:

16-56-105. Actions with limitation of three years.

The following actions shall be commenced within three (3) years after the cause of action accrues:

What is "afther the cause of action accrues"? I just want to make sure I truly understand how to calculate this.

If it is just 3 years from last payment, then that is not a problem. Even if it is 6 months after the last payment I still win because they filed later than that.

So I just want to make sure I am arguing this correctly.

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The cause of action would be the second after the payment was due and it was allegedly not paid. The six months you are thinking is charge off, which is just an accounting term. You were in "default" the second your payment was due and you did not pay. Therefore, triggering a "cause of action"

If you get in a car wreck, the fault of somebody else, your cause of action starts the second they caused the wreck.

Same here, you allegedly wronged them the second you did not pay on time.

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Thanks Coltfan! I am waiting on discovery from them right now, so I will just begin preparing a MSJ in the mean time. Can you point me to the statute that defines credit card debt as open ended? Thanks again!

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Yep, I did they ALL said 5 years. I remembered what you told me before, and I started really digging. I am finding a bit of conflicting info though. Is it 3 years from the last payment or 6 months after the last payment?

I found both of these. I looked at the law, and it says:

16-56-105. Actions with limitation of three years.

The following actions shall be commenced within three (3) years after the cause of action accrues:

What is "afther the cause of action accrues"? I just want to make sure I truly understand how to calculate this.

If it is just 3 years from last payment, then that is not a problem. Even if it is 6 months after the last payment I still win because they filed later than that.

So I just want to make sure I am arguing this correctly.

The 3 year statute to which you're referring mentions a contract not in writing and express or implied. If Arkansas considers a cardmember agreement to be a written contract, that's where you might have a problem. A cc agreement states that use of the card indicates your acceptance of the terms and conditions. If they decided to fight hard, they could subpoena your bank records showing you made payments to the OC. That would be proof of use and acceptance.

Personally, I'd stick with proof of ownership and with the rules of civil procedure such as proper authentication of documents.

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Not sure what Arkansas choice of law is but doesn't BOA have choice of law in the agreements? If so, wouldn't the Delaware SOL of 3 years apply?

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I looked at the law, and it says:

16-56-105. Actions with limitation of three years.

Yep, and get ready for them to argue 16-56-111 and claim a credit card is written contract. If you can hold your arguments and put up with the constant appearance that they are winning this argument, you can paint them in a corner and use their own words to flip this on them in summary judgment.

They are going to argue a credit card is a written contract. That is true, pretty much. However they are not going to provide a contract. Again, that is acceptable. They don't have to provide the contract to prove there was a contract. But what kind of contract????????? Good ole AR law uses the word "other" how nice and how not definitive.

This is where you get your My Cousin Vinny moment when Vinny's girl is on the stand and the district attorney smiles and asks her a trick question and then tries to use that as showing the judge she has no clue. Then when she says, "Would you like me to explain" and Vinny rocks back in his chair, slaps the Karate Kid on the back and says "Watch This"

This is where you simply have to get them to make this argument on the record thinking they are demolishing you, while they are simply just telling you the size of the rope you should buy for them.

You have to sucker them into this. You can't let them just keep arguing over and over the use of the card establishes the contract, because they are 100% right. You have to bait them into making this argument.

"Each time you signed the credit card slips you are signing a new written contract, agreeing to a new five year statute of limitations," a solid and very correct argument, hence they are kicking your tail all over the courtroom.

You can get them to say anything you want if you just act stupid and like you are scared of what you are trying to get them to put on the record. I did this over and over in discovery, get them to give me the answer I wanted by wording the question like I was looking for a certain response that I thought would help me.

I roped them in some more during more production of documents requests and made it look like I was going to use the argument how do you know this is my account and spoon fed them discovery where they argued the use of the card set the "account" And just beat that dead horse. Remember this was all before I pulled the old, right at the last minute, I agree with all your evidence, I just don't owe you. So they are racking up tons of fees.

I wanted them arguing over and over the "use of the card" sets a contract, but by Arkansas law what type of contract. Now you can make the argument without them going the charge slip route but once they make it on the record, their mouth just wrote a check their tail can't cash.

You- Don't have charge slips to prove the account, WTF????? Them- NO!!, we don't need them, we have the statements that show the charges and you used the card, we don't need the slips. Again, they are 10000% right. Your getting your losing right? ;)

Back off the SOL in discovery and start in with getting them to object to everything as irrelevant or even better as not in their possession that will go to proving the written contract. Don't ask for "written contract proof" ask for it appearing you need for another irrelevant reason so they will object to it as irrelevant, because it actually would be irrelevant if you were actually asking for it for the reason they thought. But there they go thinking again, and we know how this is going to turn out, don't we?

:trainwreck:

Get them to use the word account every possible time you can and every time you can use contract (in your arguments, not your requests) NEVER say what kind of contract.

Time to party. Quickly change gears and give them the "Watch This" moment. The charge slips that were indeed correctly argued as not needed to establish the account, are now needed, by their own arguments Your Honor, to establish "what kind of account/agreement" the parties entered. The "account" is now conceded by the use of the card, but not the type of account.

However, they will have objected or failed to produce those charge slips because, again, they correctly state they don't need the charge slips to prove there was ever an agreement or account between the parties.

Yes, Your Honor, I concede defeat on that point, they are right, use of the card sets an agreement, but just like the good ole, "I owe it but not to you" we now have, "I have an account, but what type of account is now the question."

They said the charge slips set a new written contract. So now they are saying they don't need the original contract AND the charge slips THEY have submitted to the Court establishes the specific type of agreement/contract, because they claim a the bottom of the charge slip there is language as to the signature constitutes agreement to the terms and conditions of the contract, and they have just told you it's a written contract that I would have agreed.

However, now, they not only don't want to produce the original contract but now the slips with that alleged verbage at the bottom where I signed, to establish the specific type of agreement.

How can you argue a signature binds somebody to a specific contract and don't produce the contract and don't produce the signature to that specific contract.

Then argue simply use of the card establishes an account and contract. But it establishes a written contract on top of that. You mean the written contract you can't produce, the charge slips with my signature binding me to that written contract?

Come on you can't have it both ways. You can't produce nothing with my signature and say you don't need my signature to bind me to a written contract, when in the next breath you argue my signature on the charge slips is what binds me to the contract, when you just said you don't need my signature. If you don't need my signature why did you just argue my signature is what binds me to a "written" contract. You said it, not me.

Talk about arrogant Your Honor. We don't need your signature, you have a contract with us. But wait, when challenged on that point of law, you have a contract because you used the card.

Okay but what kind of account/contract. How is it a written contract because I signed saying it was every time. Care to show me? No, you used the card. HUH, I know I have an account now, that is conceded, but now explain to me how I can have a written contract with you when I entered into a written contract each time I signed a new charge slip, AND you have just said you don't have those charge slips because you don't need them to prove something I've just concede???

Of course you don't need them to prove something I just conceded. "Try to keep up Pal, we are past that argument, you won that one."

I want to see all this agreement every time nonsense that you say you are basing your legal argument and theory. I don't concede that, so let's start talking apples to apples here. Stop trying to justify your lack of proper evidence, when you sued me, by pointing out you don't need the evidence to prove a point that I have conceded.

Just WOW, Your Honor, incredible.

This is where you just annihilate them on "meeting of the minds" and use their own words, objections, and lack of production of documents, and just shove them right up their a$$ while they stand there with the :shock: on their face. They are now catching on they just got played.

So quickly move to the next argument. We've established an account Your Honor. By default it is now simply an "account" that is allegedly owed, not a "written contract account" and in Arkansas on any other "account" other than a written contract, the limitations is three years under 5-56-105.

So you concede it's an account, but it's an, "other" account. That law you are quoting uses the word any "other" account. Now it's an "other" account.

In closing.....

If you don't have a clear meeting of the minds, it clearly has to be something "other" than what is being argued. It's why the law was written that way Your Honor (well I can only assume) as a "catch all" in the event of no meeting of the minds. We must have two meeting of the minds in this case. One for if there was an account and two what type of account. We have a clear meeting of the minds on number one but no way on number two, so we have an "other" account, by default.

or along the lines of

HOWEVER, where there is no meeting of the minds and where reasonable minds would differ since there is no contract and no charge slips, which they claim sets a new contract after each signature, is a "written" or "other" and since it's obvious it is a least an "other" contract but not obvious it's a written contract, by default it has to be the catch all "other" contract/contract

They are the ones that put us in the position Your Honor by refusing produce the very evidence they relied when making their arguments. If they want to blame somebody for all this confusion, all they have to do is look in the mirror.

Not my fault they made arguments they could not or were not prepared to back if challenged on the matter. It's not my fault they objected to the very evidence that would make this argument moot in about two seconds. It's not my fault they failed to produce evidence, and I even tried to help them out and asked them for it because I'm no lawyer, but I know you argue something and there is physcial evidence to support that argument, the best evidence is that physcial evidence.

Then say, "The uneducated inbred hick from Arkansas with no law degree, rests, Your Honor" :IThankYou:

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The 3 year statute to which you're referring mentions a contract not in writing and express or implied. If Arkansas considers a cardmember agreement to be a written contract, that's where you might have a problem. A cc agreement states that use of the card indicates your acceptance of the terms and conditions. If they decided to fight hard, they could subpoena your bank records showing you made payments to the OC. That would be proof of use and acceptance.

Personally, I'd stick with proof of ownership and with the rules of civil procedure such as proper authentication of documents.

This argument is exactly what I'm talking about. He is right, that is why you need them to go the extra step for you and talk about the new written contract each time you sign.

BV80 is making the exact argument they will most likely make. Fortunately for you, they will probably not be as well versed in the law as he is and will play you for an fool.

You've got to turn this into an "implied" from a "written"

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OH JOY!!! Coltfan, God Bless You!

Boy I wish I had been there to watch them crash and burn!

Ok You said:

Back off the SOL in discovery and start in with getting them to object to everything as irrelevant or even better as not in their possession that will go to proving the written contract. Don't ask for "written contract proof" ask for it appearing you need for another irrelevant reason so they will object to it as irrelevant, because it actually would be irrelevant if you were actually asking for it for the reason they thought. But there they go thinking again, and we know how this is going to turn out, don't we?

So I guess I need a 2nd POD because I did not ask for a written contract from them. I also have not even brought up the SOL defense yet. Should I file an amended answer and use the SOL as an affirmative defense? Or should I wait until I have their discovery back to file an amended answer? According to the ARCP the affirmative defense should be made with the answer to the complaint. Will I waive my right to claim that defense if I wait until I receive their discovery back?

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Bumping for help on my last question and to ask how many times may one amend an answer? I could find nothing about this in the Rules for Civil procedure.

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Well, let's get into use and acceptance. So far, only Delaware and Missouri have this on the books as a law. Otherwise it is an unsupported legal conclusion designed to avoid proving one's case. "You agreed to the terms of the contract when you used the card." But you....didn't SEND me the terms, or the contract. "Shut up and pay us. We said you agreed to the terms of the contract we never formed. We're bigger than you, and we can afford to hire lawyers who are so stupid they can't remember to take their pants off when they go to the bathroom, and you can't. We win." Uh, no, I want you to show me the state staute (my state) that says use and acceptance applies, By the way, don't quote state banking law. "Why not?" Because state banking law does not apply to national banks. Yes or no. "Humna humna, yes." Okay, if it doesn't apply to you, it doesn't apply to me. It doesn't apply to me anyway, because it is a consumer protection statute, not a banking protection statute, next question. "When are you going to send us a check?" As soon as, as Mel Gibson said in Braveheart, your commander presents himself on this field, puts his head between his legs, and kisses his own arse. "We don't want to kiss our own arse." Then you can kiss mine, right after I prove use and acceptance is not a legally supportable theory of litigation. New written contract every time I sign? Who made up this BS? You guys? Show it to me in my state statutes, not yours, because you dummies moved to some hellhole state with 80 inches of snow just so you could try to use their laws against the unsuspecting consumer. Oh yeah, I have the Bill Janklow interview. Too bad you can't export anything but your interest rate. Hello? Are you still there, dopey JDB lawyer? Oh well, he hung up.

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Well, let's get into use and acceptance. So far, only Delaware and Missouri have this on the books as a law. Otherwise it is an unsupported legal conclusion designed to avoid proving one's case. "You agreed to the terms of the contract when you used the card." But you....didn't SEND me the terms, or the contract. "Shut up and pay us. We said you agreed to the terms of the contract we never formed. We're bigger than you, and we can afford to hire lawyers who are so stupid they can't remember to take their pants off when they go to the bathroom, and you can't. We win." Uh, no, I want you to show me the state staute (my state) that says use and acceptance applies, By the way, don't quote state banking law. "Why not?" Because state banking law does not apply to national banks. Yes or no. "Humna humna, yes." Okay, if it doesn't apply to you, it doesn't apply to me. It doesn't apply to me anyway, because it is a consumer protection statute, not a banking protection statute, next question. "When are you going to send us a check?" As soon as, as Mel Gibson said in Braveheart, your commander presents himself on this field, puts his head between his legs, and kisses his own arse. "We don't want to kiss our own arse." Then you can kiss mine, right after I prove use and acceptance is not a legally supportable theory of litigation. New written contract every time I sign? Who made up this BS? You guys? Show it to me in my state statutes, not yours, because you dummies moved to some hellhole state with 80 inches of snow just so you could try to use their laws against the unsuspecting consumer. Oh yeah, I have the Bill Janklow interview. Too bad you can't export anything but your interest rate. Hello? Are you still there, dopey JDB lawyer? Oh well, he hung up.

Ok, I see this even MORE clearly now! Thank you! I am just waiting on my discovery requests now. I will update as soon as I receive their answers and/or documents requested.

I am off to look up some case law for a brief to support a MSJ!

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I'll be following your post as I recently received a "pre-legal" notice from this firm. So I expect I'm on their radar and maybe can learn some of their tactics following your experience.

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Hi LR Knight! I would go down to the Circuit Clerk's office in your county to get an idea of how many cases they file and their stock complaints. I bet there are NONE that have been answered. Just make sure you read, read, read. Have you read the ARCP? Here is a link to it.

Here is a good case I found from the Arkansas supreme Court that is an excellent read on several issues. I was looking for the information on amending your answers, and the Justices basically spell out just how to defend yourself when answering and challenging so-called evidence. There is also other case law cited as well as a number of ARK statutes to take a look at! SETH v. ST EDWARD MERCY MEDICAL CENTER, No.

This case helps one to understand the "when" in Arkansas of asserting certain Affirmative defenses as well as how an amended answer may be looked at by the court. I am only looking at adding SOL as an affirmative defense in my case, and I see that you do not waive the right to do so just because you did not put that in your initial answer.

 Ark. R. Civ. P. 15(a) provides that “a party may amend his pleadings at any time without leave of the court,” with the exception of the defenses listed in Ark. R. Civ. P. 12(h)(1).Those exceptions are:

(h) Waiver or Preservation of Certain Defenses.

(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading. Objection to venue may be made, however, if the action is dismissed or discontinued as to a defendant upon whose presence venue depends.

Sol IS NOT listed!

I hope this helps someone else as well. It is so important to research as much as possible. Doing this yourself definitely helps you understand and grasp the concepts much better. Reading case law helps you understand how those laws are applied to cases. Read the comments from the judges so you understand what the attys did wrong then you can avoid making the same mistakes, or you can see what they did right and copy it!

Edited by DebtBgone

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BofA is FIA Card Services, Delaware law. 3 year SOL and a really interesting interest rate law, chapter 23 of the code. Gotta read that one.

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BofA is FIA Card Services, Delaware law. 3 year SOL and a really interesting interest rate law, chapter 23 of the code. Gotta read that one.

Ok, I will read that. So then when I argue this SOL, I should also use fact that BofA uses or defers to Delaware law on all its cc agreements. I can pull up a copy of their CC agreement online. Thanks a bunch!

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Yes. I recall that DE interest rate law requires a written agreement before they can charge anything they want. If they can't produce one, they've violated the interest law of their home forum state. DE has use and acceptance, but you are not in DE. They cannot export all their crazy laws, just the interest rate. There is no language in 12 USC 85 or any of the opinion letters from the OCC that gives them the authority.

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Ok, JDB just sent out new Requests for admissions with alleged cc statements attached as well as a sheet that has my name on it and a copy of a generic assignment from BofA.

They want me to admit that the above stated items are attached. Then they want me to admit to each and every charge, late charge etc. contained in each. ie Admit that the defendant made a purchase on ______ at Gatren's eatery in the amount of 5.33.

How do I answer these? I can't know that these are even legit!

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Gatren's? Must be a bad place, doesn't even come up in a Google search. I would give them a general denial, you have no obligation to authenticate their hearsay documents by admitting to any facts allegedly contained therein.

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Thanks Bruno. Some of those place look familiar, but I am not sure about these. They never sent anything after my first set of POD, nor did they answer my interrogs. I am sending another set of POD to see what they will send me. Then I will send them my admissions request based on what I get back.

I guess this is their way of answering my requests by sending me request for Admission with alleged cc statements attached. :)

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@coltfan: Could you direct me to any cases including yours where this was successfully argued and won? Thank you!

I am thinking about filing a motion to dismiss after I get the new discovery back based on SOL.

I will be updating this with the actual docs I file when I do it. I am just so tired of all this. I hope to be done soon.

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