Being sued on older credit card debt

[GoingGrey]

What is the name of your state? COLORADO

I’m kind of “thinking out-loud here,” so I apologize if the following is a bit rambling. But I really do need some advice.

I used to have a credit card with Providian. In early 2004, I contracted a long-term illness that interfered with my ability to earn money, much less pay debt (still in medical care). In May, 2004, I paid $35 on my Providian account and have not paid a penny, since. The balance on the account was a bit over $1,000. In 2005, I received a letter from Portfolio Recovery Associates, LLC that they had purchased this debt. In November 2007, I was served with papers suing me for a bit over $4,000. I appeared in court in December, 2007, and filed my answer claiming that the statute of limitations had expired under Colorado Statute 13-80-101. I believe that this credit card account, which is an “open account,” is covered under the Colorado Consumer Code, and 13-80-101 limits actions under the Consumer Code to 3 years. The court set a pre-trial conference for January 17th, 2008. Today I received copy of “Motion for Judgment on the Pleadings” from Silverman Law Firm, which surprised me because I didn’t think that a motion for judgment could be filed until my answer was heard and answered by the court on the 17th. Anyway, in this Motion, attorney states “According to CRS 13-80-103.5(1) The following actions shall be commenced within six years after the cause of action accrues, and not thereafter:” - it ends there, he does not state which “actions” he is claiming that the six year statute of limitation applies. 13-80-103.5(1) applies, as far as I know, to written contracts and liquidated debt (BTW, he is now seeking more than $8,700 in damages - over double the initial filing!) I don’t know if the plaintiff is arguing for the six year statute of limitations based on the debt being a written contract or it being a liquidated debt? How am I supposed to respond to this?

Here’s how I’m figuring things, how I plan to answer at the pre-trial conference.
PLEASE, someone help me figure out if my logic is correct:

1. The debt is for a credit card account. Credit card accounts, as per the Federal Truth in Lending Act, are open accounts,

2. Open accounts fall under Colorado’s Uniform Consumer Credit Code statutes,

3. CRS 13-80-101(g) limits actions under the Uniform Consumer Credit Code to three years,

4. Therefore, the statute of limitations has expired and the judgment should not be granted.

Is my logic correct?

Now, I’m assuming that lawyer is going to claim one of the following: (a) The debt is a WRITTEN contract, or (b) it is a Liquidated Debt.

I’m fairly certain that any argument that the debt is a written contract will fail, because there is no contract with a SET interest rate and SET monthly payment for a SET total time period that contains BOTH of our signature, which is basically the definition of written contract in Colorado as I understand it...but I am likely wrong on some legal technicality thingie.

Now, the argument that this is a liquidated debt is harder to argue against, depending upon the legal definition of “liquidated debt.” Colorado’s statutes fail to (clearly) define what determines/defines a “liquidated debt.” If this is considered a liquidated debt, then under 13-80-103.5 the limit would be 6 years, right?

But WHAT determines if something is a liquidated debt - what is the legal definition? And couldn’t I argue that it can’t be a liquidated debt because that would mean a DRASTIC change to the original agreement, a drastic change I never agreed to, and that such a change in the nature of the original agreement results in an un-agreed-upon change in my rights/responsibilities under the law, so therefore, they can’t change the nature of this debt from open account to liquidated debt? Gosh, I know that is really rambling and not very clear but it’s where my head is at - trying to figure out how to respond to this Motion and what to say/write for the pre-trial conference!

Ideas? Suggestions? Advice? Am I on the right track or just delaying the inevitable?

Thanks!

 

[GoingGrey]

Additional information - wrong copy of agreement?

While going through all my paperwork for the case I wrote about immediately above, I realized something:

The attorney, in the Complaint, included what I thought was a copy of the cardholder agreement. What it is is TWO copies, of TWO different cardholder agreements, and BOTH of them DO NOT MATCH the copy of the agreement that I have. They are different!

Can I use this somehow as a way to have the judge dismiss the case? If so, what is the legal words I need to use - lack of evidence? Improper affidavit or what?

Please respond/help - thanks!

 

[TiredOfAbuse]

I have read through your posts, and referenced the materials and laws, and it looks like you are in the right. The plaintif's attorney is argueing (even though their verbage is incomplete) that your CC was a written agreement. I am surprised they are, as what you had stated "CRS 13-80-101(g)" does declare that in CO actions that fall within 3 years include the Truth In Lending act, hence Credit Cards.

I would file a motion to have the suit dismissed WITH prejudice (means they cannot sue you again on this debt), explaining that since it is beyond the SOL they have no course of action. In your motion you can bring up the sections of law that pertain to your request, including the TILA.

Definately show up to the pre-trial hearing!

I'd be interested to hear how it goes down for you. If you lose you can always appeal, an d I hear appellate judges are a bit smarter about the law.

Does either contract they have presented as evidence have your signature? If not I can't see where the plaintif is going with it due to CO law being so clear on the issue.

TiredOfAbuse

If you get no further help on here, try looking Credit Info Center as well. They have a great consumer forums as well.

 

[GoingGrey]

Nope...

Nope, neither contract has my signature. However, the credit card was either applied for online, with one of those "click here to sign" kinda buttons, if I remember correctly, OR, the credit card was applied for over the phone. I honestly do not remember - it was probably phone. Regardless, by signing the back of the credit card and actually using it, I am, as far as I know, "agreeing" to the contract as if I had physically signed it.

Regardless, it's not a "contract," per se, but an "agreement," and the legal difference can be significant.

I've gone through the copies of the two contracts he attached to the original complaint thoroughly. One of them is for a completely different bank/credit card, one I've never had, and the other is a Providian agreement, but is differs in several significant ways, including but not limited to rates, fees, etc., and has several additional paragraphs my original agreement has, and is missing a few paragraphs. I believe it is significantly different enough to warrant dismissing the case based on that simple fact alone: His suit is based on a contract that DOES NOT APPLY to me

It is interesting to note that in his complaint, he SPECIFICALLY claims "breach of contract" as the basis of the suit. That would firmly put the suit under the 3 year statute of limitations, since that rules all contract claims! Sloppy, sloppy, sloppy...

I must admit, my rough draft answer/response/motion thingie is getting longer and longer...but hey, it's MY future that is at stake here! Should I lose, I *will* appeal because I do think I'm on target and RIGHT.

I will keep ya'll updated, because if I win, this could help a lot of other people!

Thanks so much for your input - it gave me a boost to know that someone else reading this can follow my logic and find it may be a good argument. That means a lot!

 

[TiredOfAbuse]

Regardless, by signing the back of the credit card and actually using it, I am, as far as I know, "agreeing" to the contract as if I had physically signed it.

It can also be argued that by signing each credit slip you agreed to a contract using a written instrument. That is the main arguement they use in my state of WA.

I've gone through the copies of the two contracts he attached to the original complaint thoroughly. One of them is for a completely different bank/credit card, one I've never had, and the other is a Providian agreement, but is differs in several significant ways, including but not limited to rates, fees, etc., and has several additional paragraphs my original agreement has, and is missing a few paragraphs. I believe it is significantly different enough to warrant dismissing the case based on that simple fact alone: His suit is based on a contract that DOES NOT APPLY to me

I'm not sure how a judge would see this. Technically through the life of the credit card and agreement they can and do send you ammendments to the agreement. What they have may be a recent one, or one as recent to when the card defaulted. In which case it wouldn't match your original. That would be a tough one to argue IF the CO lawbooks weren't so clear about the TILA CC definitions.

Thanks so much for your input - it gave me a boost to know that someone else reading this can follow my logic and find it may be a good argument. That means a lot!

You are welcome, but don't rest easy just yet. This hasn't survived court yet, and you have to successfully argue your point in court.

I do wish you luck! If it helps you, please do a little reading.

http://www.coloradolegalservices.org/co/index.cfm

TiredOfAbuse

 

[JETX]

Simple answer....
Get a local attorney.

You are clearly fighting what they are making a complex legal issue (and have an attorney to support it) and specific legal 'tactics' (even if incorrect from 'tired'), is not what this forum is about. Contact your county bar association and ask if they have a referral program to a free- or low-cost attorney referral.

From your several posts on this subject, you are clearly smart enough to articulate your issues... do so to an attorney and get legally ACCURATE advice on this issue.

 

[TiredOfAbuse]

(even if incorrect from 'tired')

Thank you JETX for making this observation! Now if you would kindly elaborate. You've posted quite a bit, so I am sure I do not have to explain how to use the "quote" function of the forums.

Also note, that each time I ask for elaboration from anyone when they point out "TOA is wrong" in a blanket statement, I hardly ever get a response. Mostly I take this to mean I'm not and that my advice and opinion still stands.

I expect a non-response here too. If not, I will gladly accept any and all constructive corrections. Attacks and beratement are not required nor wanted. Thank you.

Contact your county bar association and ask if they have a referral program to a free- or low-cost attorney referral.

I agree and would take a few more steps. I would investigate hiring an attorney that knows this field of law. Not all attorneys (or Judges for that matter) are learned in this area.

Along with your local bar association, check out this website.

www.naca.net

Let us know how it goes!

TiredOfAbuse

 

[GoingGrey]

Lawyers

Have called six lawyers so far but none have called me back. Two are on the NACA website. While I could afford $50 or $100 to get some advice - and would willingly pay it - I can't afford anything else. I've been unemployed since October, when, thanks to Colorado's new smoking ban, the company I've worked for the last 8 years shut down. (It was a bar, and like 96 others, the smoking ban killed their business).

I live in a VERY small town in rural Colorado, and there simply isn't much in the way of jobs here. The nearest major town is Colorado Springs, where the court is actually, and that is 42 miles away. I've applied to numerous jobs in the Springs (spending about $8 in gas a pop!) but so far, I've had no luck.

I do believe I have at least 1, possibly 3, different FDCPA violations on this guy, and plan to include them, and am hoping that if one of these lawyers calls me back, he'd be willing to represent me and I'd let them have whatever fines are awarded, if any, in lieu of payment. I'd be willing to work off any legal fees - I'm good at research, (many others skills, too) and I type more than 120 words a minute!

But that's neither here nor there... all I can do is hope someone calls me on Monday, because no one's returned my calls at all the entirety of last week, and pretrial is on Thursday.

I have thought that if I feel pretrial doesn't go well, I'll ask for a continuance using the argument that I am still trying to get legal representation for the basis of the continuance. It's in Civil court, NOT small claims court, so I can bring a lawyer.

Ultimately, this forum like any forum is for advice, support, brainstorming, etc., and that is appreciated. It is neither my intention nor desire to start any sort of flame war, and hope that the bit of animosity I sense above is simply being mis-read on my part

Thanks so much, EVERYONE, I will keep you posted!

GoingGrey

 

[GoingGrey]

I'm not sure how a judge would see this. Technically through the life of the credit card and agreement they can and do send you ammendments to the agreement. What they have may be a recent one, or one as recent to when the card defaulted. In which case it wouldn't match your original. That would be a tough one to argue IF the CO lawbooks weren't so clear about the TILA CC definitions.

In a way, I'm lucky on this point. At the bottom of the back of the copy of the agreement the lawyer is suing based on, is a 'revision' date, which dates to about 5 months BEFORE I opened the account. The other one, being from a completely different company, simply can't apply.

It's like he had a copy of SOME agreement from SOMEWHERE and simply attached it, without caring or checking if it was the REAL agreement. From what I've read, bulk-buyers of debt like Portfolio Recovery Associates tend to use "sample" agreements.

I can't help but think this can only help me.

Thanks again!

 

[BHammer]

Providian CC debt also BUT...

In the state of Colorado.
My girlfriend was served papers in the begginning of this month for a Providian credit card debt but hers was from 2000!
She never owned a Credit card from them....
Never made any such CC purchases!

In May 2000 she had filed Bankruptcy and this month through her Credit report we found that the bank CC was issued in Dec 2000?

Colorado Statutes of Limitation
All contract actions, including personal contracts and actions under the UCC: 3 years (C.R.S. 13-80-101), except as otherwise provided in 13-80-103.5; All claims under the Uniform Consumer Credit Code, except sections 5-5-201(5); All actions to recover, detain or convert goods or chattels, except as otherwise provided in section 13 -80-103.5.

I agree - SOL to me is 3 years!
Her scheduled court date is Feb 13.
I'm in process of getting her Bankruptcy papers and waitng on a Complete Credit Report to file our dis-agreement.
SOL is way past 3 or 6 year limit! Don't know what they are thinking unless they are hoping on a EZ Offer payment to re-activate the SOL???

(My girlfriend has MS and this has her all stressd out.)

We are in the Spirngs
Waiting to hear on your out come.



[/FONT]

 

[IrishNodak]

The other one, being from a completely different company, simply can't apply.

Providian was "bought out" by WAMU. Was the other contract possibly that? In that case, it might apply. Providian customers were told about the "change in terms" when WAMU took over.

I hope you do well and I would call some of those attorneys back or try some others. Instead of waiting for a phone call, see if you can just schedule a free consult.

 

[GoingGrey]

Trying to find a lawyer that will defend a debtor is remarkably difficult! Since my last post, I did finally get to talk to several - none of whom will take my case, at least not at this point in time! The bottom line from them all: "You can argue ANYTHING, but whether or not the judge will buy it is a different story." Couldn't get any of them to even haphazard a guess as to what the judge will "buy." One lawyer said that my argument for the three year limitation "seems to have some merit based on the clear-language of the law..." and another lawyer "hypothetically" (his word) said that the "specific" 101(g) might take precedence over the "general" 103.5 code...which sent me on an hour-long search for what was already right in front of me in the annotations: Specific limitations do take precedence over the general, and there is case law right there in the annotations. So I'm using that as my secondary evidence.

There really isn't any obvious, clear consensus on the Colorado Statute of Limitations. I even called the Attorney General's office, and got the following answer from a very nice lady in the Collections department (after being transferred only five times): "I think it is six years, but I guess it could be three years, too, honestly, it's not something that I've had to deal with before."

One kinda cool thing I learned is that my contract is "controlled" by New Hampshire law. New Hampshire's statute of limitations is CLEARLY three years. I may be able to use that also

"CRS 5-12-107 (7) A commercial credit plan established by a creditor and the extensions of credit made pursuant thereto shall be governed by Colorado law. Unless the agreement governing the commercial credit plan expressly states that it is subject to another law of this state, a commercial credit plan shall be governed exclusively by this section and shall not be subject to any other law of this state that otherwise would apply to the commercial credit plan including, but not limited to, laws limiting the amount or duration of credit or the rate or amount of interest or other charges that may be charged, taken, collected, received, or reserved."

Highlights are mine. Read that closely: This is part of how they can charge interest rates above Colorado's Usary limits. My thinking is this would support using New Hampshire three-year statute of limitations should I not be able to successfully argue Colorado's three-year statute of limitations

If they absolutely insist that Colorado's statute of limitations applies, then I think that Colorado's interest rates should apply...which, after recalculating my entire account, would mean they owe me about $740 Can't have it both ways, I figure!

One other thing I did learn from the lawyers: The contract is an "evidentiary" issue. The plaintiff will have to prove that the contract they are suing under is the contract that controlled my account. Since the contract is materially different - using that contract would result in a markedly different ending balance (in my favor, actually!) it cannot be the same contract.

IrishNodak: I wasn't a Providian customer anymore when Wamu took over. Fortunately, I've learned over the years to save EVERYTHING, FOREVER, so I do happen to have every single notice they ever sent me.

They attached TWO separate contracts - one of which is from a completely different company, "Direct Merchants Credit Card Bank," of whom I've never done business with. Should they claim that is my contract, I have copies of my credit reports going back nine years showing I've never had an account with them.

BHammer: I'm no lawyer, but your case seems really cut-and-dried to me. It seems absolutely true that the account is time-barred. It is well over 6 years, so not only should you be able to get the case dismissed on that alone, you may have a counter-claim against them.

This is important: Look at her bankruptcy papers! Was the Providian debt discharged in the bankruptcy? If it was, then you have a second defense!

Not only that, I'm almost 100% positive you can file a counter-claim under both the Federal and Colorado Fair Debt Collections Practices Act for knowingly filing a time-barred suit, and very likely, you can also counter-claim under the Fair Debt laws for pursuing collections on a bankruptcy-discharged debt. The amount you can sue for is $1,000 per violation (although sometimes they will view it as a single combined violation). Either way, BE SURE to put this in the counter-claim section of the Answer.

Try calling one or both of the following lawyers: Kenton Kinard on your case as a whole, and David M. Larson on the Fair Debt Collection Practices Acts possible violations. I talked with Shawn at Kenton Kinard's office, and he was very, very helpful. David M. Larson's office deals exclusively with FDCPA issues, and I think your FDCPA issues are far clearer than mine. Try calling them both! Also, Legal Aid

BE SURE YOU GO TO COURT!! Bring the bankruptcy discharge - in your case, most likely, that will stop it cold right there.

I can't help but feel, after I've done so much research these last few weeks, that there is a class action lawsuit in all of this. I wish there was a lawyer out there willing to pursue that!

I will keep you posted! Ya'll keep your fingers crossed for me!

 

[GoingGrey]

BHammer!

In the state of Colorado.
My girlfriend was served papers in the begginning of this month for a Providian credit card debt but hers was from 2000!
She never owned a Credit card from them....
Never made any such CC purchases!

In May 2000 she had filed Bankruptcy and this month through her Credit report we found that the bank CC was issued in Dec 2000?

Colorado Statutes of Limitation
All contract actions, including personal contracts and actions under the UCC: 3 years (C.R.S. 13-80-101), except as otherwise provided in 13-80-103.5; All claims under the Uniform Consumer Credit Code, except sections 5-5-201(5); All actions to recover, detain or convert goods or chattels, except as otherwise provided in section 13 -80-103.5.

I agree - SOL to me is 3 years!
Her scheduled court date is Feb 13.
I'm in process of getting her Bankruptcy papers and waitng on a Complete Credit Report to file our dis-agreement.
SOL is way past 3 or 6 year limit! Don't know what they are thinking unless they are hoping on a EZ Offer payment to re-activate the SOL???

(My girlfriend has MS and this has her all stressd out.)

We are in the Spirngs
Waiting to hear on your out come.



[/FONT]

BHammer, I forgot to mention in my prior post, you can get copies of her credit report for free at http://www.freeannualreport.com - also, suing you for an account she never had is another possible FDCPA violation. When you get a chance, change your account HERE so I can private message you, or private message me with your email address. I would like to talk with you directly if you wouldn't mind!

 

[CollectionGuru]

I know this is going to sound radical. But have you ever thought of calling the opposing attorney and working out an agreement to pay back the money that you stole from Providian?

 

[annajosie]

collection guru, the O/P didn't STEAL THE MONEY. What did he do, go into Providian with a gun and say "stick 'em up"????!!!!

he can't pay it back. he had illness. there are a million reasons why a debtor can't pay back a creditor. that does not mean that they STOLE the money.

debt collectors with your mindset are the reason that debtors will NOT pay.

You make an assumption, you make a judgement and you don't even know what the story is. BOTTOM FEEDERS DO NOT WIN!!!!!