sinfulcolors

Being sued by Portfolio Recovery 4 yr. SOL expired

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I'm new here.  I was served by PRA on 4/19, case was filed on 3/27/14 in Florida.  Two counts listed:  Account Stated & Unjust Enrichment.  They submitted page 1 of a credit card statement from Sept 9, 2010 to Oct. 10, 2010 with a min payment due of $1,953.  I don't have any paperwork.  I pulled my CR and the last payment was on 2/24/2010 on both PRA account information and OC.  I am going to file my answers and affirm the SOL defense plus others. My question is, when would I file a motion to dismiss based on the SOL?

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1. Who is the named plaintiff in the suit?  Portfolio Recovery Associates, LLC

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

3. How much are you being sued for?  $6,500 + interest

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

5. How do you know you are being sued? (You were served, right?) Served 4/19

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

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?  Unaware of any correspondence

9. What state and county do you live in?  Florida, Palm Beach

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)   2/24/2010  on CR

11. What is the SOL on the debt? To find out:  4 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).  Suit served

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?
20 calendar days

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  Submitted a statement from OC from 9/9/2010 to 10/10/2010, account numbers whited out, showing a minimum payment due of $1,953.00. A past due amount of $1,686 Late charge billed on 10/04/2010 for $25 and Interest of $175. Days in billing cycle 31. They did not provide a copy of the assignment citing CACV v. DeWolf :  An assignment is not required to be attached to an initial pleading.

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Thank you ArtVandelay!  I just sent her a message. 

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If you're going to use SOL as an affirmative defense, you're going to need proof other than a credit report which isn't admissible in court. You'll need to pull your banking records, most banks keep all that information electronically. Bank of America will email you the records for free, although you have to wait 2 days.

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There are two different statutes of limitations that apply to Credit Card debt in Florida.  It is 4 years if there is no signed written contract, it is 5 years if there is.  Since yours is a credit card debt, and they filed between years 4 and 5, whether or not it is outside the SOL would depend upon whether or not they have a signed written contract.  If they have a signed written contract, then they filed within the statute of limitations. 

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Account Stated falls under 4 years in Florida

 

April 17, 2014 Florida Rules of Civil Procedure 187

 

FORM 1.933.  ACCOUNT STATED COMPLAINT

 

Plaintiff, A. B., sues defendant, C. D., and alleges:

 

This is an action for damages that (insert jurisdictional amount).

 

Before the institution of this action plaintiff and defendant had business transactions between them and on .....(date)....., they agreed to the resulting balance.

 

Plaintiff rendered a statement of it to defendant, a copy being attached, and defendant did not object to the statement.

 

Defendant owes plaintiff $.......... that is due with interest since.....(date)....., on the account.

 

WHEREFORE plaintiff demands judgment for damages against defendant.

 

NOTE: A copy of the account showing items, time of accrual of each, and amount of each must be attached.

 

From my understanding in the Florida Rules of Civil Procedure, they were suppose to attach more than one statement in order to show a history of business transactions.  I also found this case ruling which I am going to use. https://www.nclc.org/images/pdf/unreported/Felicien.pdf%C2'> Florida Credit Research v Felicien

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@sinfulcolors

 

Where is it stated in the FL statutes that an account stated cause of action is 4 years?  The statutes reference written and unwritten contracts.

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Account Stated falls under 4 years in Florida

 

April 17, 2014 Florida Rules of Civil Procedure 187

 

FORM 1.933.  ACCOUNT STATED COMPLAINT

 

Plaintiff, A. B., sues defendant, C. D., and alleges:

 

This is an action for damages that (insert jurisdictional amount).

 

Before the institution of this action plaintiff and defendant had business transactions between them and on .....(date)....., they agreed to the resulting balance.

 

Plaintiff rendered a statement of it to defendant, a copy being attached, and defendant did not object to the statement.

 

Defendant owes plaintiff $.......... that is due with interest since.....(date)....., on the account.

 

WHEREFORE plaintiff demands judgment for damages against defendant.

 

NOTE: A copy of the account showing items, time of accrual of each, and amount of each must be attached.

 

From my understanding in the Florida Rules of Civil Procedure, they were suppose to attach more than one statement in order to show a history of business transactions.  I also found this case ruling which I am going to use. Florida Credit Research v Felicien

 

An account stated can fall under 4 or 5 years depending upon whether or not they have the original signed contract.   These are governed by Florida Statute 95.11 which deal with statutes of limitations.  The 2 involved here are:

 

West's F.S.A. § 95.11
95.11. Limitations other than for the recovery of real property
 
(2) Within five years.--

( b ) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of paragraph (5)(e), s. 255.05(10), s. 337.18(1), or s. 713.23(1)(e), and except for an action for a deficiency judgment governed by paragraph (5)(h).

 

(3) Within four years.--

(k) A legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts.

 

So, as I said, it depends upon whether or not they have a signed written contract.  If they don't, it's 4 years but if they do, it's 5 years.  An account stated is merely a form of proving damages for the breach of a promise to pay on a contract.   The Statute of Limitations still depends on whether or not they possess a written (5 years) or unwritten (4 years) contract.  

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"...action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes."  PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13   Fla. L. Weekly Supp. 560a 2006

 

The claim is not based on a written contract.  Please remember they filed their claim under Account Stated and Unjust Enrichment. 

 

Thus, proof of an express contract between parties defeats a claim for unjust enrichment founded on an implied contract. It, therefore, follows that where a  claimant recovers for breach of the implied covenant of good faith due to the breach of  an express contractual provision, the claimant cannot also recover for unjust enrichment. Diamond “S’’Dev. Corp. v. Mercantile Bank, 989 So. 2d 696, 697 (Fla. 1st DCA 2008); Ocean Communications, Inc. v. Bubeck, 956 So. 2d 1222, 1225 (Fla. 4th DCA 2007).

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An action for unjust enrichment is governed as an action on a contract not founded on a written obligation and must be commenced within four years after accrual.”
Venditti-Siravo, Inc. v. City of Hollywood, Fla., 418 So.2d 1241 (Fla. App. 4 Dist. 1982) Fowler v. Towse, 900 F.Supp. 454 (S.D. Fla. 1995)

 

If they filed their claim based on a written instrument, they had to attach it to the Complaint.

 

RULE 1.130.

ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS

  1. Instruments Attached.All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments

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@sinfulcolors

 

If you haven't answered the complaint, use that case law and file a motion to dismiss based upon the SOL. 

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@graym

 

Those statutes don't say anything about a signature. 

 

This is true.  I just kind of always associate a written agreement as something signed, but you're right. 

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Or you could file a counter claim for suing you on a time barred debt. They would need to answer it, pay you if it is indeed time barred. They may dismiss then, and offer you a few hundred bucks to drop it. You would need to learn your rules if you choose to do this.

You could motion to dismiss based on the sol and file a separate suit for them suing on a time barred debt, or hire a consumer attorney to do it for you on contingency. You have 1 year from the time they filed against you to do this. Funny they get 4 years on an sol, but you get only one for the FDCPA violation.

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I would definitely attack them on the Statute of Limitations.  Any pressure you can put them is leverage for you and it should definitely be taken advantage of, potentially even a counterclaim for an FDCPA violation.  I'm not too sure on how exactly the law works here though. 

 

Why wouldn't they be able to just drop the unjust enrichment portion of the claim and proceed only with the account stated and argue that a Credit Card is a written agreement with a 5 year SOL?   The courts don't exactly seem in unison with Statute of Limitation claims and there has been some funky rulings on it.  Additionally, I'm unfamiliar so maybe someone can chime in, but it would seem to me that just because one aspect of a claim is past the SOL doesn't mean that everything is.  Eventually they would proceed with only one anyway so in this particular case why wouldn't they be able to just proceed on the account stated claim and defend a 5 year SOL to it?

 

However, I think you would still have them dead to rights based on the SOL of the unjust enrichment.  Even if they drop that portion of the claim the fact that they raised it is probably enough for an FDCPA violation.  Is it possible for them to claim a bona fide error defense though?  How clear cut is the paperwork on it being beyond the SOL? 

 

Basically, I'd recommend consulting with an attorney that specializes in FDCPA suits in your area and definitely hammer them on the SOL. 

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@sinfulcolors

 

Are the cases you're citing published?  If not, they're not binding on any court.  If they are published, they would need to be from a court whose ruling would be binding on your court.

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@graym  They don't have it and you need it prove it. Why are you under the impression that account stated is on a written instrument? 

 

@BV80  Yes, all those cases are published and the case I cited from DCA is in my district.  There are some good cases out there proving CC are not written agreements.  Felicien, Pincus, Gelsey, Fernandes and Borak.

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@graym  They don't have it and you need it prove it. Why are you under the impression that account stated is on a written instrument? 

 

I did not state that it is, just that it could be.  There is nothing in an account stated claim that states it can't be based upon a written contract with a 5 year statute of limitations.  American Jurisprudence addresses this very issue here:

 

51 A.L.R.2d 331

American Law Reports ALR2d

 

Limitation of actions as applied to account stated

 

§ 1. Scope and related matters

 

Different limitation periods for actions on written and on oral contracts are sometimes provided, and the question whether an action to enforce an account stated is governed by the one or the other period has sometimes been raised. If the particular transaction alleged as constituting a statement of the account was entirely verbal, then the period for actions on oral contracts is, of course, the one to be applied. But the mere fact that some writing formed a part of such transaction does not necessarily mean that the case will be controlled by the period applicable to actions on written contracts. The precise statutory language involved and the specific facts and circumstances shown will govern the outcome of individual cases.

 

Later on it states this:

The proper period in which suit may be brought may be affected by statutes providing different limitations periods for actions on contracts in writing, and actions on oral contracts, and a written account stated, or a written acknowledgement of indebtedness, may constitute a contract in writing with respect to the statute of limitations applicable to such contracts.

 

------------

 

It is quite possible in your case that the Judge can take the written statement provided to you as an action for account stated based upon a written contract and apply the 5 year statute of limitations.  I'm not saying that he will, just that it's possible.  Basically all I'm saying is don't put all of your eggs in one basket, address everything.  The fact that they only supplied 1 statement for an account stated claim is very attackable, you can probably find case law that would win the case on that point.   I don't see how they can support an account stated claim with a single statement.  The case law you already found definitely supports the 4 year SOL on unjust enrichment and that alone might be enough for an FDCPA counter-claim.   I also definitely would address the SOL on account stated but I would extend that particular argument to include your reasoning as to why the 4 year SOL applies to it.  It might just take a little bit more to explain that a single statement they provided does not constitute a written contract so the 4 year SOL applies and back it up with case law on what constitutes a written contract etc.  If you can find case law that states an account stated claim has a 4 year SOL then definitely use that, I'm just not sure that case law exists and based upon what is stated in American Jurisprudence, I don't believe that's correct so I don't think you will be able to find it.  However, I'd love to be wrong here.   All in all though, with all of the research you've already done and the arguments you've already presented, I would be surprised if you don't come out victorious either through trial, or because they run for the hills. 

 

I'm not an attorney so take what I say with a grain of salt, I'm just trying to help :-)

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I think we are missing the biggest part and that is what makes a written contract a written contract.  I got this from the Florida Bar: 

 

Contract Valid in Florida:

Offer, Acceptance, and Mutual Consent
Every contract must include a specific offer and acceptance, and it must be consented to by both parties of their free will. Neither party can be coerced or forced to sign the contract, and both parties must agree to the same terms.

Consideration
There must be something of value exchanged between the parties. The thing of value may be money or services, but both parties must give something (otherwise, it is a gift, not a contract).

Sound Mind
Both parties must be of "sound mind." This definition requires that neither party be a minor, both must be sober (not under the influence of drugs or alcohol when signing the contract), and neither can be mentally deficient.

Legal Purpose
The contract must be for a legal purpose. It cannot be for something illegal, like a selling drugs or prostitution.

 

Signatures are required on a written contract. Also, I found some this:

 

If evidence of liability is partially in writing but the writings are incomplete to establish liability, then the contract is regarded as oral for statute of limitations purposes. See ARDC Corporation v. Hogan, 656 So. 2d 1371 (Fla. 4th DCA 1995)

 

(“(i)n order that a contract be founded upon a written instrument, the instrument must contain a contract to do the thing for the nonperformance of which the action is brought.”); Ball v. Roney, 112 Fla. 186, 150 So. 240 (1933); Schrank v. Pearlman, 683 So. 2d 559 (Fla. 3d DCA 1996), rev. den. 691 So. 2d 1081 (Fla. 1997).

 

So a statement is missing a few pieces to be considered a written contract:  1. It doesn't include signatures. 2. It doesn't say what will happen if payment is not received. 

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@graym Actually you said "There is nothing in an account stated claim that states it can't be based upon a written contract with a 5 year statute of limitations"

 

This is incorrect, as sin posted above account stated is a NEW contract, the old one does not apply.  When they sue on account stated they try to take away your ability to dispute the debt by saying This was the old balance on this date, and you didn't object to it, therefore it made a new binding contract that you will pay.  Sueing on account stated does not reset the SOL from last payment on account, but it takes out the written contract of an account if there was one.  Unless they sue on several charges, like breach of contract, unjust enrichment, et all, they try to list them all so if they don't win on one account, they win on another. 

 

Credit card accounts in Fl are 4 years.  Now if this were a loan for like a car, or a personal loan for a set amount of money to be paid back in monthly installments over the coarse of a certain peroid, or a prommisary note or something of that nature, it would probably be a 5 year SOL. 

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@graym Actually you said "There is nothing in an account stated claim that states it can't be based upon a written contract with a 5 year statute of limitations"

 

This is incorrect, as sin posted above account stated is a NEW contract, the old one does not apply.  When they sue on account stated they try to take away your ability to dispute the debt by saying This was the old balance on this date, and you didn't object to it, therefore it made a new binding contract that you will pay.  Sueing on account stated does not reset the SOL from last payment on account, but it takes out the written contract of an account if there was one.  Unless they sue on several charges, like breach of contract, unjust enrichment, et all, they try to list them all so if they don't win on one account, they win on another. 

 

Credit card accounts in Fl are 4 years.  Now if this were a loan for like a car, or a personal loan for a set amount of money to be paid back in monthly installments over the coarse of a certain peroid, or a prommisary note or something of that nature, it would probably be a 5 year SOL. 

 

Yes, but nothing you said disputes the fact that the new documentation can be considered a written contract by the court.   As American Jurisprudence said, it completely depends upon the specifics of each case which is why the argument needs to be taken further to prove why, in each specific case, the account stated does not represent a new written contract and thus should be considered 4 years. 

 

Additionally, Credit Card accounts are not only 4 year SOL's in Florida as you stated.   I posted the statutes, it depends upon oral or written as Florida has no specific statutes dealing with Credit Cards.  Each case is different and it is quite possible for a 5 year SOL to apply to Credit Cards in Florida. 

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