Ask Me Help Desk

Ask Me Help Desk (https://www.askmehelpdesk.com/forum.php)
-   Other Law (https://www.askmehelpdesk.com/forumdisplay.php?f=190)
-   -   Is credit card debt open account debt or a written agreement debt? (https://www.askmehelpdesk.com/showthread.php?t=85482)

  • Apr 23, 2007, 01:09 PM
    nickramon
    Is credit card debt open account debt or a written agreement debt?
    I am currently fighting a credit card debt action filed against me by Unifund. The issue is whether credit card debt is open account debt subject to 3 year SOL in the State of Washington or a written agreement debt subject to 6 years. I asked the same question on another forum and received an answer from a person calling it a written agreement debt subject to 6 years SOL. However, on various webistes on the internet, they list credit card debt as open ended debt and not a written agreement debt. Does anybody has a bonafide confirmed answer to this question?

    Furthermore, to assert their claim that the subject debt is a written agreement debt, Unifund has attached a standard preprinted "Retail Installment Credit Agreement" stamped signed by some authorized officer and dated 1994. The agreement does not have my signatures on it. It acutally does not even have my name on it anywhere. I also don't recall ever receiving this agreement. My credit card was issued to me in 1987 and this agreement is dated 1994. My questions regarding this agreement are:

    ! Can they use this agreement to prove that the debt is a written agreement debt subject to 6 years SOL even though I never signed the agreement, it does not have a principal amount, interest rate or an expiration date?

    2. Can they use this agreement eventhouhg it is dated several years after the card was issued?

    3. Is this agreement admissible because it is a preprinted standard agreement without my signatures? It actually looks like preprinted standard terms and conditions they probably send to every card holder.

    4. Does anybody know if they started this practice of sending these agreements in and after 1994? I never received one in 1987 when the card was issued to me.

    It should also be noted that Unifund never verified the debt by providing me a copy of a signed application or any other instrument bearing my signatures. I asked them to do so within 30 days after receiving a collection letter from them.

    The debt incurred during my recovery period (almost a year) in 2002 after a bad accident. After recovering from my injuriest, in 2003, I tried to pay on the credit card but Key Bank would not accept any payments because they had written off the debt. I wrote them certified letters (with return receipts) imploring them to accept payment or work something out, they never respodned. In October 2006, Unifund through their attorneys served me the papers

    Any help or advice will be greatly appreciated.
  • May 3, 2007, 02:58 PM
    Mike30328
    A credit card debt is an open account. I just went to court 2 weeks ago because Wolpoff & Abramson sued me over a $4,500 credit card debt from 5 years ago. The statute of limitations in Georgia is 4 years for an open account and 6 years for a written contract. The lawyer that showed up on behalf of the law firm suing me tried to B.S. me into paying by saying the SOL was 6 years. I refused to pay her anything and told her I would take my chances in front of the judge. When we went back in to the courtroom, she promptly withdrew the lawsuit against me because she knew that she wouldn't win. Don't pay those scumbags a penny. They can't collect against you and they know it. They are trying to B.S. you. Tell them to piss off. According to the Truth-In-Lending Act, credit cards are always open accounts.
  • May 4, 2007, 08:29 PM
    nickramon
    Quote:

    Originally Posted by Mike30328
    A credit card debt is an open account. I just went to court 2 weeks ago because Wolpoff & Abramson sued me over a $4,500 credit card debt from 5 years ago. The statute of limitations in Georgia is 4 years for an open account and 6 years for a written contract. The lawyer that showed up on behalf of the law firm suing me tried to B.S. me into paying by saying the SOL was 6 years. I refused to pay her anything and told her I would take my chances in front of the judge. When we went back in to the courtroom, she promptly withdrew the lawsuit against me because she knew that she wouldn't win. Don't pay those scumbags a penny. They can't collect against you and they know it. They are trying to B.S. you. Tell them to piss off. According to the Truth-In-Lending Act, credit cards are always open accounts.

    Congratulations on your win! Can you tell me what is the code no. from Truth in Lending Act that governs credit card debt and or defines it as open account?
  • May 4, 2007, 08:32 PM
    nickramon
    What is the code no. from Truth in Lending Act that governs or defines credit card as open account?
  • May 5, 2007, 10:35 AM
    Mike30328
    I don't know the code from Truth In Lending Act (TILA) (if I can find it I will post it for you but my previous searches for it were fruitless) and I didn't cite it. What I did cite was Georgia code regarding Open Accounts (9-3-25 I believe it was). What I would do if I were you is this: try to find out the TILA code if you can that specifies credit cards being open accounts. You may want to try a website called BCSalliance.com: Credit and Debt Solutions

    If you can't find that information, proceed under the assumption that it is correct and try to find the Washington code that stipulates Open Accounts being a 3 year statute of limitations and cite that code number. The bcsalliance.com website may actually have the statute number for you. If not you'll have to try and comb through Washington code yourself and find it. It should be available on the internet for you if you Google search it. That is what I did. Keep in mind that if you can't find the code, you can still say in your answer to the lawsuit that the statute of limitations has expired for the open account and when you present your case in front of the judge, he/she should research this before rendering a decision. Quite frankly, I think when you show up in court and refuse to negotiate beforehand with the scumbag lawyer, I feel that they will back down. That's exactly what happened in my case.

    Good luck with your case. Let me know how it goes.
  • May 23, 2007, 06:20 PM
    Davesgirl0701
    I am posed with the same issue, and according to the Truth in Lending Act, it is open end. However, the attorney who bought the debt from Cap one has filed a Motion for summary judgment, as well as asked the court to dismiss my motion to dismiss based on the Statute of limitations for the card. They quote a case Davis v. Discover Bank, that was appealed in GA, but ruled on in Oregon. I am going to try to provide enough eveidence as far as definitions go to show the difference between open and written contracts. Written contracts provide specifics, i.e. date of maturity, amount of payments, terms of contract, and this is signed by the consumer. Community, please feel free to comment or add insight!:confused:
  • May 25, 2007, 08:50 PM
    Mike30328
    Davesgirl0701,

    I think your strategy is perfect. I had information on the differences b/t open and written contracts ready to go myself. I think the lawyer is trying to intimiate you. The only way I can imagine that he would be granted summary judgement would be if you failed to file your answer to their lawsuit within the time limits required by law (typically 30 days after you've been served paperwork). With that being said, I can't imagine him getting summary judgement. I think you should win this case assuming the lawyer doesn't withdraw it before it ever is heard by the judge. Good luck and let me know how it goes.
  • Jul 28, 2007, 11:35 AM
    rlbexp
    Hi,
    I just found this site and I think it is great! We are facing the same thing with an old debt that is now is being pursued by an atty. A twist in this case that I haven't seen posted (yet) is that the atty is asking for a pretrial conference soon. The document he sent us is asking us to basically provide our strategy and defense, and that our SOL defense is invalid.

    We are not sure if we are to respond to the atty AND file the answer with the court, or just file the answer with the court. Are there any suggestions on this?

    I too began looking for the differences between open accounts and written agreements.
    Davesgirl0701, would you share those difference here?

    Also nickramon, if you haven't found it already, the TILA statute is:
    TITLE 15 > CHAPTER 41 > SUBCHAPTER I > Part A > § 1602
    § 1602. Definitions and rules of construction(I) The term “open end credit plan” means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time.


    Thanks for this great forum! :)
  • Jul 31, 2007, 07:19 PM
    Seiticorta
    I too have just been contacted by a collection agency working for Capital One regarding a charged off debt that I have disputed repeatedly over the last five years. In fact no action has been taken on this debt since my last dispute letter in July 02. Now out of the blue some junk debt buy decides to contact me and demands payment. When I mentioned that the SOL had expired on this debt in WA state, I was told that no, it hadn't. That in fact there is no law in WA state pertaining to Open Ended Accounts and that my account was a written account any ways. I just sent a letter to the AGO asking for their opinion. I doubt they will respond, the AGO doesn't like to offer legal advice.

    Quote:

    I was just recently contacted by a collection company regarding a charged off visa card debt from over five years ago. I believe this debt is out of the Statute of Limitations RCW 4.16.080 but the collection company says that there is no SOL for credit cards in WA. The TILA statute is:
    TITLE 15 > CHAPTER 41 > SUB CHAPTER I > Part A > § 1602 and it calls all Credit Cards "Open Ended Accounts." My question is, does RCW 4.16.080 apply to open ended accounts or not? I have disputed this debt as I do not believe I owe it, and regardless I also believe it to be out of SOL. Can you provide any definition on how WA state views Open Ended Accounts?
    I hope they do respond.
  • Aug 24, 2007, 07:51 PM
    girlfromga
    I am being sued By Hanna and his firm for a capital one debt of 3000.00 by the time they finished it's over 5000.00 They did get a summary judgment againist me and I used the above TILA statue in my defence. Along with other document. I have a call of the court calendar the first week in Sept. I'm going to take all my stuff and try again. They are saying it is a written statue. They have given me nothing but were I applied for a credit card as evidence. I'm so tired of looking for stuff and can find nothing in Georgia law that say what credit card debt is. I last paid on this debt 4/2001 they sued me 11/2006.
  • Aug 24, 2007, 08:46 PM
    Seiticorta
    I called them and recorded the entire conversation and even got them to admit that the statute of limitation had expired and they admitted that they could not sue me. If they try to now, it will be viewed unfavorably by the court. Good luck with your court date...
  • Nov 2, 2007, 08:53 PM
    Suse50
    I am being sued by Unifund for a credit card debt with a credit card I never had and that is not on my credit report. They have a reputation of filing in a different city than where you live in hopes of winning a default judgement. Answer their summons. I received some good information on this site and went to the courthouse and found out today that I can contest them appearing telephonically. I just hope the judge denies them the right to appear telephonically. They win default judgements because some people cannot travel to the courts where the suit is filed and don't answer the bogus claims. I want them forced to face me in person. Good luck against Unifund!
  • Nov 3, 2007, 07:14 AM
    K_2
    Go to www. Fico. Com There is a lot of resources there to help people deal with collection agencies and companies who sue after SOL. Debt and Credit is what that site is about. It list how to proceed when a company is suing past SOL and where to file complaints and get accurate information. I believe SOL can be reset depending on the different circumstances.
  • Nov 21, 2007, 03:06 AM
    cocoarena
    Quote:

    Originally Posted by nickramon
    Congratulations on your win! Can you tell me what is the code no. from Truth in Lending Act that governs credit card debt and or defines it as open account?


    Oh my GOD their suing me too!
    I'll get back with more later.. but this is such a coincidence.
  • Jan 14, 2010, 11:24 AM
    salvador58
    You have to file a motion to dismiss before the courts place judgment, in Ohio you have to quote
    2305.06 ORC. And I imagine you have to find the Revised Code in your state. It has to be there, just Google and you will find it
    The truth in lending act and the Federal Trade Commission support us on this matter about a credit card being and open end account, but you have to file the motion just as soon as they take it to court, because once judgment is passed you are out of luck. You also have to watch about judges, magistrates and attornies scratch each others backs. You can get a credit card over the internet or by phone without even a signature
  • Jan 14, 2010, 11:46 AM
    JudyKayTee

    You have reopened a post from 2007 - please keep an eye on the dates when you answer. The OP has not been back.
  • Jan 14, 2010, 12:26 PM
    salvador58
    Well;
    Sorry;
    The answer still applies today, and I can tell you that I helped my grown up boy to defend himself against a situation about a couple of credit cards that the instituions actually came to his college and they gave to him and others about 9 years ago the ORC is actually 2305.07, so I do need to make that correction

  • All times are GMT -7. The time now is 12:46 PM.