Written vs. Open-Ended (SOL)

What is the name of your state? Arkansas

What is the rule of thumb regarding credit cards? Are they considered written contracts if you fill out an application, or are they considered Open-Ended? I see this being a pressing issue in my defense. I am asking for Statute of Limitation reasons (3 vs. 5 years). Thanks for any replies.

What exactly are you talking about? A few facts to help people help you might be warranted don't you think?

[JETX]

What is the rule of thumb regarding credit cards?

If it is larger than your thumb, it could be a credit card.

Are they considered written contracts if you fill out an application, or are they considered Open-Ended?

All credit card debts (aka revolving accounts) are 'open-ended' debts. That is set by the 'Truth-in-Lending Act' (15 USC 1602 (, which defines 'Open end credit' to include credit arrangements like revolving credit cards, where the "borrower" (that is the credit card holder) is not required to pay off the principal amount by any particular point in time. Rather, the borrower is simply charged interest periodically and is usually required only to make some minimum payment.

Here is a link to the applicable Code (15 USC 1602(i)):
"(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."
Source: [url]http://www4.law.cornell.edu/uscode/15/1602.html[/url]

I see this being a pressing issue in my defense. I am asking for Statute of Limitation reasons (3 vs. 5 years).

In your state (Arkansas) the applicable SOL's are:
Open Acct.: 3 years
Written Contract: 5 years.

[bigun]

Here's some Federal case law.

[url]http://laws.lp.findlaw.com/7th/972769.html[/url]

An open-end credit plan, the category that includes legitimate credit-card credit and revolving credit more broadly, is a financing plan under which the creditor "reasonably contemplates repeated transactions." 15 U.S.C. sec. 1602(i). The Federal Reserve Board, which has the statutory power to make regulations particularizing the obligations of creditors under the Act, 15 U.S.C. sec. 1604(a); see also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559-60 (1980); Mourning v. Family Publications Service, Inc., 411 U.S. 356, 365-66 (1973); Gibson v. Bob Watson Chevrolet-Geo, Inc., 112 F.3d 283, 285 (7th Cir. 1997); Consumers Union of the U.S., Inc. v. Federal Reserve Board, 938 F.2d 266, 269 (D.C. Cir. 1991), has in its Regulation Z merely (so far as relevant here) repeated the statutory definition of open-end credit that we just quoted. 12 C.F.R. sec. 226.2(a)(20)(i). The Board's Official Staff Commentary on this section of Regulation Z, 12 C.F.R. pt. 226.2(a)(20)(3), supp. I, which also has the status of a regulation, Ford Motor Credit Co. v. Milhollin, supra, 444 U.S. at 565 -70; McGee v. Kerr-Hickman Chrysler Plymouth, Inc., 93 F.3d 380, 383 (7th Cir. 1996); Cades v. H & R Block, Inc., 43 F.3d 869, 875 (4th Cir. 1994), is more expansive, but adds little of substance to Regulation Z beyond a reminder that the criterion is what is reasonably contemplated rather than what actually occurs, so that the fact that a particular customer uses a credit card only once does not convert the credit plan from open end to closed end. "[T]he creditor must reasonably contemplate repeated transactions. This means that the credit plan must be usable from time to time and the creditor must legitimately expect that there will be repeat business rather than a one-time credit extension. . . . The fact that a particular consumer does not return for further credit extensions does not prevent a plan from having been properly characterized as open- end." Nowhere does the statute, regulation, or staff commentary specify a minimum number of repeat purchases that must either be contemplated or occur.

[bigun]

Couple of other suggestions. This site has some info on responding to a SOL lawsuit.

[url]http://community-2.webtv.net/YCHANGE/STORAGE/page2.html[/url]

Also, filing a time-bared lawsuit violates the Fair Debt Collection Pratices Act. Consider filing your own lawsuit. Here's the case that courts site as the precedent. It's too long to cut and paste so just scroll the link. It's long but, well thought out. Notice the judge ruled that both the collection agency and, the lawyer were liable. The case is Kimber vs Federal Financial Corp.

[url]http://www.creditboards.com/phpBB2/viewtopic.php?p=179243#179243[/url]

Thanks for the replies. Maybe I can be a bit clearer. I received a summons for an old credit card last activity 8/99. Arkansas SOL 3-year Open / 5-year written. The only piece of paper I signed with the Credit Card Company was the application. Evidently, they are claiming this as a written contract. So, I'm stuck between a rock and a hard place. I do not have a copy of the application, so I have no firepower. So here are my questions: Can I request what the plaintiff has prior to court? Is this worth fighting? (Yes it is a substantial amount - more than attorney fees) or should I try to settle? I'm afraid, if I just let this go and pay, they are illegally collecting. Any advice would be appreciated. Thanks again. (P.S. I have an attorney who thinks I should settle).

[bigun]

Reread Jetx's post. They can claim anything they like but arguing with Reg Z of the TILA is gonna be tough sledding. Also, reread the case I linked. A federal judge feel the same way.
Sure, demand any documents you like in discovery. It'd be a hell of a note if they don't even have a copy of the contract either!
Also, check and see if the collection agency is operating legally in Ark.

[url]http://www.lawdog.com/states/ar/st1c.htm[/url]

Thanks Bigun.

Forgot, in case anyone is still willing to give advice. The collection agency suing me, purchased the debt almost a full year after the 3-year SOL, which throws up a red flag in my book, that they have something other than my original app to extend the SOL. Could they just be that stupid? Thanks for any opinions

[bigun]

Out of statute debt changes hands for a fraction of a penny on the dollar. Collectors buy these accounts in batches of the thousands and hope people don't know there rights.

That's what I'm afraid of Bigun. Thanks for the reply. Is it possible, for attorneys that work with Collection companies often, to push for settlements? That would be unethical right?

[Ladynred]

The CA knows damn well the debt is out of statute, but they will ALWAYS try to collect the full amount plus whatever they can tack on. Do NOT let them win, the law is on your side. Use what has already been posted here against them and you should win your case.

Is this ASS-et Acceptance by any chance ?