Credit Card SOL Illinois

[irishfire]

What is the name of your state? Illinois
I am in the process of trying to get a credit card debt suite dismissed based off of Credit cards being an unwritten contract. (5 year SOL) This is 735 ILCS 5/13-205

The Plantiff response to this motion to dismiss is that: credit card agreements are written contracts and are 10 years SOL based off of Harris Trust and Savings Bank v McCray, ILL App 3d 605, 316 N.E. 2d 209 (1st Dist.,1974)

However the 3rd party collection agency does not have a copy of the credit card agreement or any reciepts of credit card charges.

How can I respond to this motion. I only have a few days left to submit my response.

Thank You

[Kanchazi]

Even though this is from florida laws it might help you in understanding more on written contracts In order for plaintiff to use written contract SOL they have to have evidence to proove its written.


The SoL is based on wether it is founded on a written instrument. They need to have proof (like a signed contract) for the 5 year SoL to apply.

If they have to resort to "parol evidence" to prove libility you can argue that the 4 year SoL applies. A Sears (store) card is always 4 years even if it is founded on a written instrument.

Review this case law:

a. "...action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes." PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13 Fla. L. Weekly Supp. 560a 2006

b. “Where resort to oral testimony was compelled to make complete the showing of any legal liability incurred by defendant arising out of letter concerning sale of plaintiff's stock, timeliness of plaintiff's action to recover for breach of contract to sell the shares and remit proceeds to him was governed by Florida's three-year limitation period governing actions on oral contracts, rather than the five-year period governing actions on written contracts."
Klein v. Frank, 534 F.2d 1104. C.A.5 1976.


c. “Contract action is not founded upon written instrument, for purpose of statute of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff’s claim.” ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.


d. “Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete in applying the statue of limitation it must be treated as an oral contract.” McGill v ****rell, 101 So.2d 199 (Fla. 1924) Id at 201.
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I am not a lawyer. It would not be wise to use anything I say as legal advise. Check for yourself.

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[Chien]

Based on a strict reading of your post, you may lose the battle but win the war. While Kanchazi’s citations are informative, generally applicable regardless of the state and worth remembering, they pertain to evidence that is apparently not yet before the Court for the purpose of your motion.
In other words, you are arguing only about which SOL applies, and there is apparently ILL case law that says credit card agreements are regarded as written contracts with a 10-year SOL. Does anyone but you and possibly plaintiff’s attorney know that no written agreement can be found? At this point, it won’t be relevant for the Court and, if you’re confident that it can’t/won’t be found, you’re probably no worse off if plaintiff prevails. If they have no evidence to prove a written agreement, you may even be better off. Their argument will be a part of the Court’s record, but they can’t meet their burden of proof.
Assuming they prevail, you need an attorney who can do the discovery that requires them to produce evidence of the written agreement and then do a Motion for Summary Judgment, when they can’t produce it.
With due respect, if you think you can do that yourself, you’ll need to learn more than your post reflects and do it fast.

[Betty]

I agree with Chien re the SOL that applies & that is 10 yrs. for a credit card (written contract) in Il. Also, do not confuse store cards (which are actually charge cards) with credit cards. Some people do.

[CC53]

New caselaw, 5 years.

[url]http://www.state.il.us/court/Opinions/AppellateCourt/2009/1stDistrict/May/1073004.pdf[/url]

[ecmst12]

Doesn't help OP whose case was in court TWO YEARS AGO!!!

[CC53]

Originally Posted by ecmst12

Doesn't help OP whose case was in court TWO YEARS AGO!!!

Yeah, I know. I thought maybe the collector types that are so adament on the 10 year written contract SOL, might take more notice this way.

[CC53]

My apologies if there's a rule about reviving old threads here.

[ecmst12]

It's frowned upon.

[debtcollector`]

Originally Posted by CC53

Yeah, I know. I thought maybe the collector types that are so adament on the 10 year written contract SOL, might take more notice this way.

That ruling doesn't claim that the SOL isn't 10 years for suit on a defaulted credit card. It says that the 5 year SOL applies if the contract cannot be presented to the court.

If the debt owner has proper docs .... you lose.

What's the problem?

DC

[eli4192]

How would a collection agency have a copy of a written contract if you applied for the credit card via the computer and the original cc company charged off the debt over 4 years ago. What are the chances they would have anything outside of what debt was owed?

[ecmst12]

Electronic application means electronic record - it's still written and NOT verbal. I'd say a collection agency is a lot more likely to have access to electronic record then paper ones.