Going to Court Soon

[KCCHIEFSFAN]

A local attorney is sueing me on behalf of Discover Card, in Missouri. I have never lived anywhere else. The deliquency of the date goes back to at least Feb'2000. I believe it goes back further but the credit report doesn't go back past Feb 2000. SOL, on open accounts, in Missouri is 5 years. Lawsuit was filed Feb 2006. That should be at least 1 year past the allowed SOL.

I contacted the attorney sueing me and he just said, "Its not true what you said about the SOL and get an attorney."

I've read that in some states judges may be considering credit cards "written contracts"? SOL is 10 years on written contracts in my State.

When we go to court, I plan to bring a copy of my credit report showing Dec'2000 as the oldest date of the deliquent debt, paperwork citing the Missouri statue that defines SOL on open acounts as 5 years, a copy of an FTC opinion that defines the start of deliquency as the time of the first missed payment.

What else can I do to make sure this debt is view as an Open Account and not written?

Thanks.

P.S. The paperwork I was served just showed a balance due from several years ago, a paper from Discover turning the case over to a local attorney, and then a copy of the Discover card agreement with general consumer information about what to do if you buy something defective, contacting Discover for help, etc. No information about debt collection or their rights to sue or any such thing.

[seniorjudge]

Originally Posted by KCCHIEFSFAN

A local attorney is sueing me on behalf of Discover Card, in Missouri. I have never lived anywhere else. The deliquency of the date goes back to at least Feb'2000. I believe it goes back further but the credit report doesn't go back past Feb 2000. SOL, on open accounts, in Missouri is 5 years. Lawsuit was filed Feb 2006. That should be at least 1 year past the allowed SOL.

I contacted the attorney sueing me and he just said, "Its not true what you said about the SOL and get an attorney."

I've read that in some states judges may be considering credit cards "written contracts"? SOL is 10 years on written contracts in my State.

When we go to court, I plan to bring a copy of my credit report showing Dec'2000 as the oldest date of the deliquent debt, paperwork citing the Missouri statue that defines SOL on open acounts as 5 years, a copy of an FTC opinion that defines the start of deliquency as the time of the first missed payment.

What else can I do to make sure this debt is view as an Open Account and not written?

Thanks.

P.S. The paperwork I was served just showed a balance due from several years ago, a paper from Discover turning the case over to a local attorney, and then a copy of the Discover card agreement with general consumer information about what to do if you buy something defective, contacting Discover for help, etc. No information about debt collection or their rights to sue or any such thing.

Q: What else can I do to make sure this debt is view as an Open Account and not written?

A: Sounds like you have it covered. Make sure you have copies for the judge and the other side. Post back with results.

[Ladynred]

I contacted the attorney sueing me and he just said, "Its not true what you said about the SOL and get an attorney."

And that, of course, is a LIE ! The attorney no doubt believes that he can push the 10 year SOL for written contracts, very typical.

Your credit report may not be enough to prove the expiration of the 5 year SOL.

You should take a copy of the Truth in Lending Act, the definitions section clearly defines credit cards as open-ended, NOT written contracts.

[seniorjudge]

Originally Posted by Ladynred

And that, of course, is a LIE ! The attorney no doubt believes that he can push the 10 year SOL for written contracts, very typical.

Your credit report may not be enough to prove the expiration of the 5 year SOL.

You should take a copy of the Truth in Lending Act, the definitions section clearly defines credit cards as open-ended, NOT written contracts.

Do you have a case cite that upholds your position?

I agree with you and after a fleeting attempt to find a case that holds this, I could not do it.

Thanks.

[Ladynred]

There may not be any case law available. Most of these kinds of cases happen in small claims court and not a court of record, so there is rarely any case law.

Most of these collection lawyers rely on getting a default judgment because consumers won't show up in court to fight them and most people have no clue at all that an SOL even exists ! If you raise the expired SOL in court or in your Answer as your affirmative defense, then you'll have to be armed with some proof and the lawyer will have to prove that its NOT past the SOL. They will almost always try to say a credit card is a written contract.

You might want to read thru this info: [url]http://whychat.5u.com/States/state-miso.html[/url]

[seniorjudge]

A recent decision (not on point here) said this about the ten year statute, which generated my question:

...

In his first point on appeal, Armistead argues that the trial court erred in dismissing Count III (breach of contract) and Count IV (punitive damages) of his petition by invoking the five-year statute of limitations in Section 516.120.1. Armistead argues instead that the ten-year statute of limitations set forth in Section 516.110.1 applies. We agree.

The trial court premised its holding on the theory that Section 516.110.1 is inapplicable because the Agreement "does not contain a promise to pay money which is an acknowledgment of a then present indebtedness." This is an incorrect statement of the law governing the applicability of Section 516.110.1. Section 516.110.1 provides that "an action upon any writing, whether sealed or unsealed, for the payment of money or property" shall be brought within ten years. The plain language of the statute imposes no requirement of "then present indebtedness." Therefore, as recognized by the Supreme Court in Hughes Development Co. v. Omega Realty, Co., 951 S.W.2d 615 (Mo.banc 1997), Section 516.110.1 applies to "every breach of contract action in which the plaintiff seeks a judgment from the defendant for the payment of money the defendant agreed to pay in a written contract." Id. at 617 (emphasis added). The Hughes Court further noted that this interpretation of the statute is "admittedly quite broad" but is nonetheless required by the plain language of the statute. Id.
....

[url]http://www.courts.mo.gov/courts/pubopinions.nsf/ccd96539c3fb13ce8625661f004bc7da/615635679bc5a54786256adc0066dd54?OpenDocument&Highlight=0,516.110%20[/url]

[KCCHIEFSFAN]

I've contacted 3 attorney's offices to see if they have reason for me to believe their services are needed. One said, "$1000.000" Another said, "$1500.00 on the front end." I told them my situation and details about the credit report, open vs written accounts. They were all very vague and said they would "have to see my paperwork." None of them would even comment when I said, "It should be straight forward case law whether or not a credit card account is an open account."

I think they are not willing to say, "Yeah, you could probably beat this with the info you have," because they just want the case even if it is not appropriate. Am I missing something here? I'm very much for having appropriate legal counsel but it seems as though these lawyers are deliberately vague hoping I will fear the "big unknown legal system" and want to ease those fears by hiring an "expert."

AM I WRONG HERE THAT IT SHOULD BE LONG SINCE SETTLED CASE LAW THAT CREDIT CARDS ARE OPEN ACCOUNTS?!! This country has been using credit cards for about half a century or more.... geez!

[seniorjudge]

Originally Posted by KCCHIEFSFAN

I've contacted 3 attorney's offices to see if they have reason for me to believe their services are needed. One said, "$1000.000" Another said, "$1500.00 on the front end." I told them my situation and details about the credit report, open vs written accounts. They were all very vague and said they would "have to see my paperwork." None of them would even comment when I said, "It should be straight forward case law whether or not a credit card account is an open account."

I think they are not willing to say, "Yeah, you could probably beat this with the info you have," because they just want the case even if it is not appropriate. Am I missing something here? I'm very much for having appropriate legal counsel but it seems as though these lawyers are deliberately vague hoping I will fear the "big unknown legal system" and want to ease those fears by hiring an "expert."

AM I WRONG HERE THAT IT SHOULD BE LONG SINCE SETTLED CASE LAW THAT CREDIT CARDS ARE OPEN ACCOUNTS?!! This country has been using credit cards for about half a century or more.... geez!

Q: AM I WRONG HERE THAT IT SHOULD BE LONG SINCE SETTLED CASE LAW THAT CREDIT CARDS ARE OPEN ACCOUNTS?!!

A: It's not settled in Missouri.

[Debt Guy]

Note to LNR re your comment: "You should take a copy of the Truth in Lending Act, the definitions section clearly defines credit cards as open-ended, NOT written contracts."

The Truth in Lending Act seems to be the common catalyst for people’s belief that a credit card is an open account. The TILA does not mention "open accounts", and its applicability to such would to me be very questionable. What it does refer to is "open end" credit. An "open end" and an "open account" are not the same. Unfortunately, because of similar names and the word "open" being included in both, most people assume they mean the same thing; they don't. While credit cards are "open end" accounts, they are rarely considered "open accounts." However, some charge cards can be considered open accounts, but a "charge" card is different than a "credit" card.

There is little law on this subject and it is not entirely clear which statute of limitations should apply to a credit card debt. In situations in which the financing is provided by the merchant, then the “open account” statute of limitations should apply because the transaction is one for the sale of goods and the financing aspect is merely a portion of that arrangement. However, if a third party provides the financing (like a bank credit card, for example), then the suit is one based on the written contract to provide credit.

More and more it seems that judges in a number of states are persuaded by the argument that a bank credit card is not the same as a store charge card. As a result, judges seem to be taking the view that credit cards are written agreements.