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sbooker · Aug 8, 2008, 09:31 AM

I received a summons from Javitch, Block & Rathbone LLP for a Sears account I had when I was 19. This account was open in 1995 and I believe wrote off by Sears in 1996. I know that I was young and stupid with the credit card, However, I do recall settling this with Sears. I don't have any bank records from that far back though. I have wrote a letter to the court stating I do not believe I owe this debt. I have also wrote a letter to Mr. Peterson who is the attorney representing the plaintiff for original documents.

Every thing I have read states an oral contract in Ohio is six years however a written contract which is what Mr. Peterson is stating his is is 15 years.

What should I expect to happen? Is the burden of proof on me or them? In Ohio is credit card debt an oral or written contract?

Please Help!

ScottGem · Aug 8, 2008, 11:36 AM

If you filled out an application and signed it, it's a written contract. The burden is on them to produce this contract and a record of charges.

That the account may have been chargerd off has no bearing. It has nothing to do with you or your obligation to pay.

Lowtax4eva · Aug 8, 2008, 12:54 PM

From fair-debt-collection.com I found the information below, it would depend if your credit card was considered an "account" or a "contract". You may wasn't to consult a lawyer, they may just be trying to get you to validate the debt or they may be correct if a credit account with Sears can be called a "contract"

Up Ohio Statutes of Limitation

Written or oral account: 6 years, (O.R.C. §2305.07).

Written contract: 15 years, (O.R.C. §2305.06).

sbooker · Aug 8, 2008, 01:21 PM

Originally Posted by sbooker

I received a summons from Javitch, Block & Rathbone LLP for a Sears account I had when I was 19. This account was open in 1995 and I believe wrote off by Sears in 1996. I know that I was young and stupid with the credit card, However, I do recall settling this with Sears. I don't have any bank records from that far back though. I have wrote a letter to the court stating I do not believe I owe this debt. I have also wrote a letter to Mr. Peterson who is the attorney representing the plaintiff for original documents.

Every thing I have read states an oral contract in Ohio is six years however a written contract which is what Mr. Peterson is stating his is is 15 years.

What should I expect to happen? Is the burden of proof on me or them? In Ohio is credit card debt an oral or written contract?

Please Help!

Thank you for that information Lowtax4eva and ScottGem. That was informative.

What in your opinion do you think will be the outcome of the summons? Another question I have is I thought a credit card was always an account and a contract would be more like buying a car or house.

Do you think the burden of proof that I paid is laid on me more than the burden of proof of the original signed contract on the plaintiff?

farmgirlmo · Aug 8, 2008, 06:07 PM

A CC is considered a open account. SOL is 6 years.

Capital One recently tried sueing under the written contract SOL in Missouri and the defendant won.

Check state caselaw and see if this issue has ever occurred.

The burden of proof is on them, they must prove you owe the debt and you are legally obligated to pay it.
Yes, you may have signed an agreement with the CC issuer, however it is considered an open account.

Open-End Credit Accounts - Financial Web

sbooker · Aug 12, 2008, 05:40 AM

Thank you farmgirlmo. I am thinking that you are corrected. In the summons I received the "exhibit A" and B look like the insert you would find with a billing. When reading they state that this is an account on more than one occasion. So I am confused as to why the lawyer would included such a thing with his law suit. His own proof states that what he is suiting for is an account not a contract. Very interesting.

sbooker · Aug 12, 2008, 06:19 AM

I have another question regarding this situation. I contacted the court today and ask when and if the law firm that is summoning me is required to send me documentation regarding this claim. I had written a letter by registered mail requesting original documentation regarding the debt. The personnal told me I would have to subpoena the information from the lawyers. Is that really the case?

ScottGem · Aug 12, 2008, 06:39 AM

Yes and no. If they refuse to provide it upon request then you would need to subpeona it. However, they have to produce the documentation at the hearing.

Since you have proof you requested the info, if they don't produce it at the hearing you can move for a dismissal.

sbooker · Aug 12, 2008, 09:12 AM

Thank you ScottGem. In your opinion should I draft a letter to the attorney requesting the information again with a time deadline? I did not include a dead line in the first letter I sent them. My bad now that I think about it.

ScottGem · Aug 12, 2008, 09:44 AM

You can send a follow-up, with a copy to the court.

sbooker · Aug 18, 2008, 06:24 AM

I have mailed the letter of discovery to the lawyer and cc the court about a week ago. I received a notice from the court stating a court date has been set. What should I expect when going to court. How should I prepare. I am a bit nervous. Any help would be greatly appreciated.

ScottGem · Aug 18, 2008, 06:27 AM

Be prepared with the law on SOL. Have copies of all correspondence.

If you don't get documentation prior to the hearing date, that's the first thing you ask for.

sbooker · Sep 15, 2008, 12:23 PM

Just a quick update. I received in the mail a letter from Javitch, Block & Rathbone LLP stating the case has been dismissed without prejudice. I do understand they will probably just sell this account to some other debt grave digger but for now I am relieved it is over. Thank you to all that help give me advice regarding this very unsettling process.