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HELP W/ Citi Please

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.wouldn't they have to actually provide a signed contract to claim it's written?  

Check your state laws. In other states, a written contract is if all the information is in one document. The signature wouldn't necessarily be a requirement if it was all done online. Credit cards are usually considered unwritten contracts since they can be changed later on if the card issuer gives you notice and an effective date of the change in terms and conditions. Use the card after that and you agree.

 

Personally, while stating the statute of limitations angle I'd consider using the Rule 1-009 mention. At least more definite pleading on their part. Even if the judge turns it down, you could request those documents later in discovery (application, original terms, all subsequent changes, interest rate setting document if not in the terms, so probably an additional document they'd have to find, etc.).

 

 

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The SOL is an affirmative defense and under NM law, the defendant carries the burden of proof.

 

First, as a general rule, the party alleging an affirmative defense has the burden of proof. See Ortiz v. Overland Express, 2010–NMSC–021, ¶ 30, 148 N.M. 405, 237 P.3d 707; see also Tafoya v. Seay Bros. Corp., 119 N.M. 350, 352, 890 P.2d 803, 805 (1995) (“The party alleging an affirmative defense has the burden of persuasion.”) - See more at: http://caselaw.findlaw.com/nm-supreme-court/1636874.html#sthash.L8X3mF4f.dpuf

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NMSA 1978 §37-1-1 et seq. governs New Mexico’s statute of limitations for the collection of open accounts, written contracts, and judgments entered by the Court. In New Mexico, the statute of limitations for open accounts is four years, while the statute of limitations for written contracts is six years. In New Mexico, if a creditor can provide a signed credit card agreement, the six year statute of limitations applies.

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@debtzapper, could statute of limitations be brought up in a pre-answer combined motion to dismiss in New Mexico as an addition to the lack of documentation (Rule 1-009) reason? NMSA 1978 §37-1-1 was covered in your earlier post #6 but there was mention there of the date based on either last payment or last statement. Any case detail on which would hold more weight? Seems like last statement would be unfair to the defendant if the only entries are interest for many months and no other activity.

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You guys don't know how much I appreciate your help.  I am taking all of this when I go see an attorney on Thursday afternoon.  I'll post the comments and any recommendations when I get back to the office.  

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@debtzapper, could statute of limitations be brought up in a pre-answer combined motion to dismiss in New Mexico as an addition to the lack of documentation (Rule 1-009) reason? NMSA 1978 §37-1-1 was covered in your earlier post #6 but there was mention there of the date based on either last payment or last statement. Any case detail on which would hold more weight? Seems like last statement would be unfair to the defendant if the only entries are interest for many months and no other activity.

 

Usually, when an Answer is filed denying the complaint with an Affirmative Defense,  you also motion the court to dismiss the complaint

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