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Your thoughts on SOL (FL, VA, AZ)

On Lawyer & Legal » bankruptcy & consumer credit

21,658 words with 14 Comments; publish: Mon, 17 Sep 2007 10:41:00 GMT; (800187.50, « »)

The state is: Florida

Senerio...

Credit card offer, solicited by a mailer to a consumer's residency in AZ in 2001, via a 30 second acceptance form that mentions nothing about terms or rates or interest etc...just a spot to sign and return by a certain date to accept, no application to fill out.

(which violates the:

6500 - FDIC Consumer Protection CHAPTER 2_CREDIT TRANSACTIONS 127. Open end consumer credit plans

(1) DIRECT MAIL APPLICATIONS AND SOLICITATIONS....

(A) INFORMATION IN TABULAR FORMAT.--Any application to open a credit card account for any person under an open end consumer credit plan, or a solicitation to open such an account without requiring an application, that is mailed to consumers shall disclose the following information, subject to subsection (e) and section 122(c): omitted all the stuff like rates and interest etc etc.....

Card is used until it has gone into default May 2002 for $1600, which the consumer disputes $1,000 of the charges as being charged due to theft. Consumer stops paying on it and there is nothing done on the account in the months and years to follow...after 3 years 2 months, consumer moves to Florida, not full time until June of 2006.

Creditor files in Oct 2006 in Florida for $2,500 plus interest and fees...a little more than $5,000 total.

Debtor claims that according to Florida Statute 95.10 (Borrowing Statute) Florida can not enforce this debt because the account was barred from being maintained in AZ (expired sol). Arizona Statute 12-543 states that OPEN ACCOUNTS have a 3 year SOL. Open accounts are federally defined as accounts that extend credit where repeated series of transaction will occur.

Also, according to the Terms and Agreement that the plaintiff submits, has a section that says...

Applicable Law; Severability; Assignment.

No matter where you live, this agreement and your Account are governed by Federal Law and by Virginia law.

Virginia carries a 3 year SOL on OPEN ACCOUNTS as well.

8.01-246. Personal actions based on contracts.

(4). In actions upon any unwritten contract, express or implied, within three years.

On the Warrant in Debt (Form DC 412) a choice needs to be made between OPEN, CONTRACT, NOTE, or OTHER, so the judge knows which is being filed.

VA views credit cards as open accounts since there is no contract on its face as defined unless its is viewed as oral since parol evidence is needed (testimony from the custodian to link all their documents together and not located on a single face or paper).

So...fast forward....

The judge in Florida can not enforce the debt since the borrowing statute bars them from doing so. Both AZ and VA's SOL has expired and this debt, while morally owed, is not enforceable or collectible.

Let the arguments begin......

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  • 14 Comments
    • Hiya Gulfstream--I'm hoping you can give me some spcific cases on VA law in which the card holder was considered to be an open account. Or, point me in the right direction. Where is a good place to search. Google isn't much help. Appreciate whatever you can do to help. I need to convince a FL judge soon. Thanks a million.
      #1; Fri, 21 Sep 2007 10:01:00 GMT
    • I just joined and saw your situation which is virtually identical to my own. I need to plead case law to the judge establishing that Virginia considers credit cards to be open accounts-you seem to have already done so, so I am hoping you wouldn't mind sharing what you have already learned. Thanks so much.
      #2; Thu, 20 Sep 2007 10:34:00 GMT
    • Quote:
      === Original Words ===

      Breeze

      We've been down this road before over SOL and the open account/written agreement issue. I don't know why you are re-opening this can of worms since yoiu are not going to agree with the opinions of the posters with many years of experience.

      I wish you the best in your endeavor and am anxious to hear the results.

      Otherwise, I am just too tired to travel that same weary road again and again.

      Reopened? This is a current case that is not over. I am in the process of settling this once and for all. Maybe, just maybe, (hopefully it wont go that far) it might be a case law if it goes to appellate court and is found in my favor...that is, if the local judge sides with the plaintiff. This will be a matter of interpretation. It also has to do with following the law and its facts. Florida's judge has no jurisdiction over a contract that is governed by another state's law. I can not expect the judge here to know the laws of VA. I do expect them to understand the FL Statute 95.10 and if I need to have a higher court point that out to them, then so be it. I won another case because the contract said that NH laws applied and the SOL was 3 years no matter what kind of contract it was. In this one, the statutes read differently (FL..written instrument VA...written contract). I don't expect you to understand the difference since you have blinders on and obviously interpreted the law for your own needs. Until the law is more clearer and not ambiguous, we will be divided.
      #3; Thu, 20 Sep 2007 23:14:00 GMT
    • Quote:
      === Original Words ===

      GB, you are a know-nothing and a fool preaching your snake oil to other fools willing to believe the prattle you hawk. You are not the person to settle this once and for all. And we are not engaging you on the subject because you are not intelligent enough to have a debate with.

      Go play in traffic.

      DC

      lol...looks like someone is condoning bad behavior or violence "play in traffic". You seem to find it offensive to have some stand over your spilled guts laughing at them.

      I wouldn't have expected anything less...."you are not intelligent enough". Once again, you feel the need to place your lil bitty mind up on a pedestal, above everyone else (or mine at least) when you have nothing to back it up, least factual. That is the problem with you clowns. Nothing is based on facts. It is just based on what spins around on that wheel in your head along side with that gerbil. No one invited your response here. If you don't like my preaching, step right on out of the CHURCH OF BELIEVERS and head back to your fiery pit of demon debt collectors. I might be on some sort of crusade, but it's a righteous one and one that I will not falter from.

      #4; Fri, 21 Sep 2007 03:20:00 GMT
    • News Update....

      9/27/2007 ORDER GRANTING MOTION TO COMPEL AND DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME

      it appears the judge agrees with my request for discovery and etc... and denied the plaintiff's request for an extension of time. i will have to call to see what the sanctions are that will be applied. i request exhibits to be tossed and or case dismissed. if they don't do it in the time allowed that is. they requested 30 days, i said 5.

      #5; Tue, 25 Sep 2007 16:49:00 GMT
    • Quote:
      === Original Words ===

      Hiya Gulfstream--I'm hoping you can give me some spcific cases on VA law in which the card holder was considered to be an open account. Or, point me in the right direction. Where is a good place to search. Google isn't much help. Appreciate whatever you can do to help. I need to convince a FL judge soon. Thanks a million.
      Do they have a signed contract from you? Anything that has your sig? Thats because, in VA, the statute governing SOL says:

      8.01-246. Personal actions based on contracts.

      2. In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not;

      4. In actions upon any unwritten contract, express or implied, within three years.

      8.01-248. Personal actions for which no other limitation is specified.

      Every personal action accruing on or after July 1, 1995, for which no limitation is otherwise prescribed, shall be brought within two years after the right to bring such action has accrued.

      So, unless they have something that looks like a contract and is signed by you, it falls under 3 year SOL at best...2 year if it doesn't apply in any of the prescribed statutes mentioned before (catch-all). No contract w/sig, no 5 year. You wont need any case law if that applies and helps.

      #6; Tue, 25 Sep 2007 11:06:00 GMT
    • WOW...You mean this has stumped the great minds here?

      no feedback, no comments, no corrections, no nothing?

      or maybe I am just right finally......

      only time will tell...i bet someone will step in and give their two cents worth.

      #7; Mon, 17 Sep 2007 19:58:00 GMT
    • Quote:
      === Original Words ===

      Hiya Gulfstream--I'm hoping you can give me some spcific cases on VA law in which the card holder was considered to be an open account. Or, point me in the right direction. Where is a good place to search. Google isn't much help. Appreciate whatever you can do to help. I need to convince a FL judge soon. Thanks a million.
      Without taking a lot of space listing them all...here are a couple of examples. I am sure there will be arguments that make these nonapplicable, but these are just a start in pointing you in the right direction. Others can be found on websites that offer case laws in their reference library.

      OPEN ACCOUNT UNDER VIRGINIA LAW

      STATUTE OF LIMITATIONS ON AN OPEN ACCOUNT

      Is an Open Account the same as a contract? Is the statute of limitations different for the two?

      Issues

      Determining whether an obligation is based in contract, Open Account or some third category (quasi-contract, oral contract or implied contract) is a daunting task because of an almost complete lack of definition of this term in the Virginia Code and common law.

      Yet the Warrant in Debt [Form DC 412] calls for the Plaintiff to state whether the claim is:

      [ ]Open Account[ ]Contract[ ] Note[ ]Other(EXPLAIN).

      The Court needs to know this information to rule on the claim, including the appropriate statute of limitations.

      WHAT IS A CONTRACT?

      The Fairfax County Circuit Court held that _In order to constitute a written contract, the essential terms of the agreement must be obvious on the face of the writing without recourse to parole evidence._ The Virginia Supreme Court has stated that "until all understand alike, there can be no assent, and, therefore, no contract."

      Virginia courts have further discussed _service_ contracts and have found _certainty and completeness_ as essential elements of that type of contract. The essential elements include the:

      1. nature and extent of the services to be performed,

      2. person to whom the services will be rendered, and

      3. compensation to be paid for the service.

      An Open Account usually lacks:

      1.) Specific mention of the nature and extent of the goods or services (medical treatment, hardware, etc.) to be purchased or performed except in a very general way and;

      2.) There is no mention of the nature of charges or the payments required.

      Open Accounts usually lack certainty and completeness. For instance, many give the beginning time but there is no contemplated ending date, simply because the agreement is open-ended; many specify the goods or services only in the most general terms; many may be signed by only one of the parties; and some make no mention of a contract but like in some medical treatment documents, may refer only to a a policy regarding financial responsibility.

      Virginia common law, as well as the common law of other states, has drawn a distinction between contracts and Open Accounts. Whereas a contract envisions a single, defined interaction between parties, an Open Account is essentially a relationship in which a Aseries of individual but related transactions take place between the offeror and offeree.

      The Supreme Court of Virginia settled the matter of first impression by distinguishing between running accounts that operate under a single continuing contract and Open Accounts. The plaintiff-suppliers asserted that the builder_s initial application for credit constituted a single contract between the supplier and builder that encompassed all subsequent orders and deliveries of building materials. Under this view, the supplier could file a mechanic's lien against any property that benefited from the material supplied in the orders placed by the builder, as long as the lien was filed within the statutory period of ninety days after the last delivery.

      The defendant-builders, however, maintained that the initial credit application served to create an Open Account. Pursuant to this legal theory, there was no single continuous contract formed between the supplier and builder. Rather, each order and delivery of supplies constituted a separate contract. Therefore, the ninety-day statutory period to file a lien would begin to accrue upon the breach of each delivery contract.

      The Virginia Supreme Court found for the builders, holding that in each instance, the initial credit application served to create an Open Account rather than a continuous contract. In doing so, the Court noted that the applications did not require the builders to purchase materials nor did they obligate the suppliers to provide materials in any definite time.

      In a case of real Open Account, an agreement would not obligate a vendor to provide goods or services or a purchaser to seek goods or services from that vendor. Further, there would be an understanding that some type of line of credit was being extended to the purchaser for the purchase(s).

      OPEN ACCOUNTS FOR MEDICAL SERVICES

      A number of states classify a patient=s relationship with a physician as an Open Account. Perhaps the most prominent is Louisiana that has statutorily defined an Open Account to "include debts incurred for professional services, including, but not limited to legal and medical services." Common law in Louisiana has further defined Open Accounts as existing in "a situation where there had been running or current dealings between the parties and the account had been kept open with the expectation of further dealings."

      In determining whether a relationship may be classified as an Open Account, Louisiana courts consider whether:

      - there are other business transactions between the parties;

      - a line of credit was extended to one party;

      - there are "running or current" dealings; and

      - there are expectations of future dealings.

      A decision by the Circuit Court of Richmond is illustrative of how Open Accounts may be established in the context of medical services in Virginia. In this case, Chippenham Hospital sought to recover for medical fees and hospital charges incurred by Mr. Shelton when he remained in the hospital for ten days past the twenty-one day period covered by Medicaid.

      In finding for the hospital, the Richmond Circuit Court stated that by presenting himself to the emergency room at the Hospital, Mr. Shelton Aimpliedly agreed that if medical treatment was rendered, he would pay for it. Using this reasoning, the court found an implied contract. Therefore, as to Mr. Shelton, the patient, we have a contract to pay for medical treatment on an open account, and, of course, the three-year statute of limitations applies to him.

      There are clear distinctions between written contract, oral contract, quasi-contract or implied contract and Open Accounts but since some of the definitions are not specified in the Code of Virginia, it is up to the individual to research the operative case law to make these distinctions.

      STATUTE OF LIMITATIONS

      There may be a significant difference in the appropriate Statute of Limitations applied to different types of documents. If a document is an Open Account, as differentiated from a traditional written contract, a Plaintiff cannot avail itself of the five-year statute of limitations under the Code of Virginia (1950) Section 8.01-246(2)

      The statute of limitations for an Open Account requires a reading of three Virginia Code Sections.

      First, the Code of Virginia (1950) Section 8.01- 249(8.) states that:

      _ In actions on an open account, the accrual period begins from the later of the last payment or last charge for goods or services rendered on the account.

      The legislature carved out a specific accrual time for an Open Account thereby giving plaintiffs a major time advantage in pursuing their claim. By so doing, and not addressing an Open Account in ' 8.01-246, the legislature thereby considers an Open Account to be distinct from a written contract, oral contract quasi-contract or implied contract. To bolster this position, the Supreme Court recognizes (as stated above) that an Open Account is distinct from a contract by providing a choice of an Open Account or a Contract on a Warrant in Debt.

      Therefore, one can argue that you look to the limitation a catchall statute, ' 8.01-248, and use the two-year limitations period.

      #8; Fri, 21 Sep 2007 10:30:00 GMT
    • Breeze

      We've been down this road before over SOL and the open account/written agreement issue. I don't know why you are re-opening this can of worms since yoiu are not going to agree with the opinions of the posters with many years of experience.

      I wish you the best in your endeavor and am anxious to hear the results.

      Otherwise, I am just too tired to travel that same weary road again and again.

      #9; Thu, 20 Sep 2007 22:01:00 GMT
    • filed a motion to compel on my request for discovery etc.....the court clerk just informed me that they have until oct 2 to answer all my filed questions or the judge will disallow all their exhibits and evidence. while a certain person here said my "discovery" was a joke, it appears that the plaintiff will not be laughing when he finds out that the judge agrees with me on my "joke"....lol
      #10; Fri, 28 Sep 2007 09:11:00 GMT
    • Quote:
      === Original Words ===

      I just joined and saw your situation which is virtually identical to my own. I need to plead case law to the judge establishing that Virginia considers credit cards to be open accounts-you seem to have already done so, so I am hoping you wouldn't mind sharing what you have already learned. Thanks so much.
      I have filed a motion to compel because the firm has denied discovery and have asked the judge for sanctions (tossing out all evidence) and am waiting hearing on that motion before my trial. i will let you know what happens.
      #11; Thu, 20 Sep 2007 18:25:00 GMT
    • GB, you are a know-nothing and a fool preaching your snake oil to other fools willing to believe the prattle you hawk. You are not the person to settle this once and for all. And we are not engaging you on the subject because you are not intelligent enough to have a debate with.

      Go play in traffic.

      DC

      #12; Fri, 21 Sep 2007 02:52:00 GMT
    • Well...I hate to spoil Chiens and DC's party but....

      I just had my final hearing and guess what......

      The judge tossed every bit of their evidence for failing to answer my so-called "poor and lame" discovery request. It appears that my questions were enough to rattle their cage and by failing to answer them, the judge simply tossed them to the curb. I will have her final decision on Monday and from the way the hearing went, she was not very impressed with the law firm for the planitiff. She made every indication that I would prevail based on all my defenses. So while DC and Chien may think they know the law and some of us "pro se" don't, it appears they failed to correctly call it on this case. I was well prepared with over a year's preparation and had several case laws and statutes...so many, even the judge said she was overwhelmed with it all.

      Just remember...some one us know a little about the law and with everyones help, I was able to defeat CRAP1 and their hired guns with all their years of law practice against my internet education of the law. Lots of people helped me and some more than others. I thank them all....I just stiffed Crap1 for $5K and it feels so good.....

      #13; Fri, 05 Oct 2007 13:54:00 GMT
    • Quote:
      === Original Words ===

      Let the arguments begin......
      Interesting story/narrative. Was there a question?
      #14; Fri, 21 Sep 2007 10:13:00 GMT