Being sued on older credit card debt

[GoingGrey]

It's a small break, but one that will make a huge difference. I'm not entirely sure what they will offer, but based on the conversation yesterday, I figure the mortgage company is either going to offer to knock 2 or 3% off or move me to a fixed rate product. They've made about $49,000 in interest (profit) from me over the last five years... I think they can afford to do so

Actually, the NACA web site is where I found this lawyer. I first contacted him when I was served with the Portfolio Recovery complaint/lawsuit, but was told he doesn't represent consumers in debt cases, only FDCPA cases. Called him back when I realized there were numerous and significant FDCPA issues, but was told doesn't handle ongoing suits in County court, but when my Counterclaim got moved to District court, to call him. So I filed my answer/counterclaim on my own. When I realized what was going on with Capital One and how it affected my mortgage, called again, this time, talked for over an hour and see him on Monday.

It's understandable why so few people fight these JDB suits. It's almost impossible to find a lawyer. I called 89! I found two lawyers in all of Colorado Springs, only five throughout the entire state of Colorado who do these kind of cases, and none of them take on simple debt complaints/judgment cases unless there is significant money at stake, and usually not even then. Not worth the time...not enough money (profit) ...

I love your suggestion of bringing the lawyer into the mortgage renegotiation! I am going to ask/suggest that to him on Monday. A friend who owed me $1000 from five years ago just paid me back today, in full (yet another break for me!) so I am going to set that money aside to use as my war chest If I have to, I'll offer to pay him a few hundred for a few letters/phone calls even.

Got a question maybe ya'll can answer. In the Pretrial Conference Order from the Plaintiff, they list their witnesses/evidence. They list witnesses simply as "authorized representative from Portfolio Recovery" and "Authorized representative from Providian." No names/addresses. They list ME as a witness for THEM. They also state they "reserve the right to produce new witnesses/evidence up to 15 days before trial."

I know how to respond to the lack of names/addresses on the witnesses - file a motion to compel or a motion to strike - not sure which is best approach yet, still plotting that The question right now is do I motion on these issues now before the mediation or after mediation but before trial? (Likely trial date is end of March).

My BIG question is: Can they call me as a witness for them like this? I thought I can't be compelled to testify against myself... Granted, since I'm pro-se, in a way, they will be cross-examining me, my evidence, and testimony all along the way... something about this is just striking me as wrong.. any ideas/suggestions?

Debt Collector: Thanks for pointing out about FTC involvement. I called them today regarding Capital One, and after being transfered about 17 times, talked with someone who gave me some great advice (albeit a bit confusing!). Need to file complaint first with FTC. I swear, she actually said "I'd love to see them rot" Will discuss with lawyer prior to filing a complaint though.

I'll keep ya'll posted!

 

[Debt Guy]

You know, I have never met anyone who liked Capital One. Seems I recall some sort of issue a couple of years ago where the regulators where trying to shift their position and some Senator told the feds to lay off. But, that is the ways of politics.

I'm not a lawyer so I can't give you advice on the legal questions. I suggest a PM to chien and dcatz -- both are lawyers and very helpful.

So far as I know you can be called as a witness for the other side in a civil case. In criminal court, no. I suspect all they are trying to do is rattle you -- but you don't sound like a person easily rattled. My advice to anyone in deposition or in direct testimony is to answer the question in simple and direct fashion and then shut up. Don't leave anything out and don't add things. It is when you rattle on that you will say something you regret.

You're on a roll, kiddo!

 

[GoingGrey]

I suspect all they are trying to do is rattle you -- but you don't sound like a person easily rattled. My advice to anyone in deposition or in direct testimony is to answer the question in simple and direct fashion and then shut up. Don't leave anything out and don't add things. It is when you rattle on that you will say something you regret.
You're on a roll, kiddo!

That's outstanding advice, DG! Thanks! And it SO applies to me...I have a tendency to share/give too much information, to over-explain things I'm not easily rattled - honestly, not much freaks me out anymore... unless you consider getting up on a soap-box 'rattled'! One thing is for sure: Once someone gets me into fightin' mode, gets me up on my soap-box, I'm relentless and cannot stop until there is no where else to go.

Even though we are scheduled for mediation, even though I fully expect some sort of settlement offer somewhere along the line, I'm still preparing for trial. One never knows! I will take your advice to heart and think I'll shanghai some friends to play 'cross examination' with me and help me practice answering the question, and ONLY the question

Thanks once again!

 

[GoingGrey]

Lawyers...sigh...

Saw the lawyer today, bottom line was he just can't help me at this point in time. Doesn't handle issues at county court level, and - no joke, he actually said this - my FDCPA issues were "over his head." He spent about an hour calling and talking to other lawyers, trying to find someone who could help me, but no go.

No one wants to deal with county court level cases...defending debtors...no money in it. The fact that my case is already on-going - that I've already filed an answer - is another issue. Just too "cost prohibitive" to catch up on everything I've already done. This I knew, and expected.

The issue with Capital One is something I need to find a FCRA expert on, and he gave me the name of a guy in Virginia and another in Oregon to contact. Even though I'm in Colorado

However, if my CRA disputes come back with Capital One *STILL* not reporting my credit limits, he can help me with that, with a quick FDCPA district court case.

The issue with my mortgage is an issue of "predatory lending" - told me to check the NACA website for someone who handles that, but also said it would be very difficult to find someone, as it's not an area that many lawyers handle. Wasn't even remotely interested in helping me renegotiate my loan - not his area - and I understand that.

No comment at all on the filing false documents issue. Brushed aside...but that is becoming a huge can of worms, so I can understand a lawyer not wanting to get involved in a possible case of misconduct of another lawyer. Good ole' boys club, after all!

But it wasn't a total bust. It was NICE, REALLY NICE, to finally have at least one lawyer spend time to talk with me, to read my answer, to LISTEN to my point of view on everything. And most importantly, it was BEYOND nice to have someone take me seriously. You've got to understand, I've called 89 lawyers and emailed dozens more, trying to find someone to take on this case right from the beginning, right from when I was first served. My inability to find a lawyer led to my having to go forward on my own, and file answer etc. myself. Which, of course, is now being used as a reason to say "no" to representing me.

Despite it all, I would recommend this lawyer! And, in fact, if my current CRA disputes fail to correct errors on my CR, I will use him. He really did treat me like I mattered, like what I had to say was worth listening to, and made me feel like the issues at hand were valid and legitimate issues. That means a lot! And although he doesn't deal with issues at the county court level, was able to give me a bit of advice on how to deal with responding to PRA's lack of detail on their discovery (no names/addresses of their supposed witnesses).

Said looked like I was in pretty good shape, to just go ahead and go forward, and see what the judge does. Said to let him know how things work out - would be very interested to know.

So. I'm on my own. Still. Well, not exactly on my own - got everyone here and on the entire internet as my best resource. And I'm going forward, fightin' on

 

[e5280]

Same issues except it is with Capitol One

Going through the same battle and centering on the SOL. Their counsel stretches to liquidated damages as a challange to my reasoning. My last motion asked that the judge recuse himself because he first ruled that the liquidated issue was a matter of law for the jury (it is a jury trial) to deside and a year later ruled that it was his ruling instead and it was a liquidated issue and therefore the SOL was 3 years. During that pre-trial (one of many) he advised that he was being replaced by another judge and it was no longer his problem. We all know the argument of liquidated as a fixed amount v. open end without a undetermined amount. I would like to see case law extrapulating the merits of fixed v. open and how it applied to other cc cases and SOL of 3 and 6 years**************...thanks

 

[GoingGrey]

My Colorado 3-year SOL argument...

Going through the same battle and centering on the SOL. Their counsel stretches to liquidated damages as a challange to my reasoning. My last motion asked that the judge recuse himself because he first ruled that the liquidated issue was a matter of law for the jury (it is a jury trial) to deside and a year later ruled that it was his ruling instead and it was a liquidated issue and therefore the SOL was 3 years. During that pre-trial (one of many) he advised that he was being replaced by another judge and it was no longer his problem. We all know the argument of liquidated as a fixed amount v. open end without a undetermined amount. I would like to see case law extrapulating the merits of fixed v. open and how it applied to other cc cases and SOL of 3 and 6 years**************...thanks

The problem, in Colorado, is that there is no absolutely on-point case law for the 3-year SOL. I am posting below the argument I use for the 3-year statute of limitations on credit card debt in Colorado. BE AWARE THAT THIS HAS *NEVER* actually been before a judge (well, it's in front of one now in my current case, but has not been ruled on yet.) Every time in the past, until this current case, I put forward this argument in my answer and opposing counsel has chosen to voluntarily dismiss their complaint, or, in one case, agreed to a very favorable settlement with me.

AGAIN: This has NOT been ruled on by a judge. There are probably problems with my argument/logic/citations/whatever. I don't know. I advise AGAINST using this as anything but an example to give you some ideas for research/ways to approach your own argument. I do not know the legal validity of this argument. I am not a lawyer. But this is the way I've researched and approached the SOL issue, in Colorado:

If anyone has any suggestions on how to improve this, can find flaws in it, whatever, PLEASE, let me know!
-----

1. Under Colorado law, this complaint is time-barred.

2. The account referenced by the Plaintiff is a credit card account, also known as an "open account" or "revolving account." Credit card accounts are clearly regulated under Colorado Revised Statutes Title 5, the Colorado Uniform Consumer Credit Code.

3. Colorado's legal definition of what constitutes a credit card is found at CRS 5-2-213(1), the Colorado Uniform Consumer Credit Code, which states in whole: "For purposes of this section, "credit card bank or financial institution" means a commercial bank, industrial bank, credit union, thrift, savings and loan association, savings bank, or other state or federally supervised institution in this state that issues credit cards and may export rates and fees pursuant to the "National Bank Act", 12 U.S.C. sec. 85, "Depository Institutions Deregulation and Monetary Control Act of 1980", 12 U.S.C. secs. 1463, 1785, and 1831d, "Federal Credit Union Act", 12 U.S.C. sec. 1757, or "Alternative Mortgage Transaction Parity Act of 1982", 12 U.S.C. secs. 3801 to 3805, and any regulations thereunder."

4. The Federal Truth in Lending Act defines credit cards as "open account." See Title 15, Chapter 41, Subchapter I, Part A, § 1602(i).

5. Additionally, the Colorado Uniform Consumer Credit Code, CRS 5-12-107(7) states, in part, "…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…"

6. The clear plain language of CRS 13-80-101, the three year statute of limitation, states that all actions under the Uniform Consumer Credit Code are subject to a three-year statute of limitations. 13-80-101(g): "All claims under the "Uniform Consumer Credit Code", except section 5-5-201 (5), C.R.S."

7. Specific statute of limitations take precedence over general statutes of limitations. 13-80-101(g) is clearly a specific statute of limitations. See Mohawk Green Apartments v. Kramer, 709 P.2d 955 (Colo. App. 1985), citing Firstbank of North Longmont v. Banking Board, 648 P.2d 684 (1982 Colo. App.): "A statute of limitations drafted to relate to special cases controls over a general statute of limitations" (Exhibit 15) and also Glenn v. Mitchell, 71 Colo. 394, 207 P. 84 (1922); Wyatt v. Burnett, 95 Colo. 414, 36 P.2d 768 (1934), "A statute of limitations is applied only to cases clearly within its provisions."

8. The Plaintiff's own complaint states "breach of contract" as basis for his claim. "Breach of contract" is generally covered under 13-80-101, the three-year statute of limitations. Regardless, the Plaintiff's failure to attach true and accurate copies of the controlling agreement to their complaint - their failure to provide an accurate copy of the alledged "contract" - means the Plaintiff has failed to provide "documentary evidence from which contract damages could reliably be determined." This negates any claim that Plaintiff's action falls under 13-80-103.5, the 6-year statute of limitations. See Interbank Investments, LLC v Vail Valley Consolidated Water District, 99CA0477 Colorado Court of Appeals, September 14, 2000 (Exhibit 16).

9. CRS 13-80-103.5 is a general statute of limitation. 13-80-101 is also a general statute of limitation, however, 13-80-101(g) is a more specific statute of limitation, especially considering the plain language of the statute,. A statute that deals with "liquidated or unliquidated" debt is referring to a far larger potential class of actions than a statute that deals specifically with actions limited to those based firmly in the Colorado Uniform Consumer Credit Code. Therefore, 13-80-101(g) is more specific than 13-80-103.5 so 13-80-101(g) applies. See again Mohawk Green Apartments v. Kramer, 709 P.2d 955 (Colo. App. 1985), in which the more "limited in scope" statute of limitation, which also "specifically relates to the situation here" is applicable. This is analogous. Exhibit 15.

10. Section 13-80-103.5 applies only when there is a contract between the parties. See Curtis v. Counce, ___ P.3d ___ (Colo. App. No. 99CA1958, Mar. 1, 2001) "As no contract exists between plaintiff and defendant Fletter, we determine that the district court properly applied the three-year statute of limitations." See also, by analogy, from Curtis: "no Colorado appellate court has construed that portion of §13-80-103.5(1)(a) to pertain to §13-80-101(1)(h). See, e.g., Green Tree Financial Servicing Corp. v. Short, 10 P.3d 721 (Colo. App. 2000) (in replevin action to recover property encumbered under instrument securing debt, court implicitly relied on remaining two phrases of §13-80-103.5(1)(a))" and "In light of the legislative history of §13-80-103.5, and in the absence of a contrary appellate interpretation, we hold that the reference in §13-80-101(1)(h) to §13-80-103.5 does not pertain to the phrase "[a]ll actions to recover a liquidated debt or an unliquidated, determinable amount of money due to the person bringing the action."

11. Finally, in Chuchuru v. Chutchurru, 185 F 2d 62 (10th Cir. 1950) the Court ruled that statutes of limitations are "…to be construed liberally. It is the settled law in Colorado that courts look with favor upon statutes of limitation and construe them liberally."

12. Since specific limitations control over general limitations and all actions under the Colorado Uniform Consumer Code are controlled by the specific three-year statute of limitations in 13-80-101(g), the three year statute of limitations clearly applies. Therefore, the Plaintiff's complaint is time-barred. The Plaintiff's complaint should be dismissed.

 

[GoingGrey]

Capital One Credit Limit Issue Update

As I've discussed in previous post, I've had a problem with Capital One reporting my credit limits. Currently, all four CapOne cards I've had are in a default state, and have been for more than 3 years.

All four NEVER reported my credit limits.

Starting in early January, CapOne reported my credit limit on 2 of the defaulted cards.

I figured it didn't really matter, since they were defaulted and had been in a negative status for more than 3 years. But, what the heck, go ahead and dispute the two tradelines that are NOT reporting my limits.

Well, I got the results back of my dispute. On ONE of the two, they reported my limit. On the other one, they made no changes.

My credit score jumped up 20 points. From JUST THAT ONE change. CapOne's reporting my limit on a DEFAULTED for more than 3 years tradeline, that has a past-due balance, my score went UP 20 points.

I cannot imagine how much my score would have risen if they had reported my limits when my accounts were in good standing.

Gives me food for thought...

 

[e5280]

The problem, in Colorado, is that there is no absolutely on-point case law for the 3-year SOL. I am posting below the argument I use for the 3-year statute of limitations on credit card debt in Colorado. BE AWARE THAT THIS HAS *NEVER* actually been before a judge (well, it's in front of one now in my current case, but has not been ruled on yet.) Every time in the past, until this current case, I put forward this argument in my answer and opposing counsel has chosen to voluntarily dismiss their complaint, or, in one case, agreed to a very favorable settlement with me.

AGAIN: This has NOT been ruled on by a judge. There are probably problems with my argument/logic/citations/whatever. I don't know. I advise AGAINST using this as anything but an example to give you some ideas for research/ways to approach your own argument. I do not know the legal validity of this argument. I am not a lawyer. But this is the way I've researched and approached the SOL issue, in Colorado:

If anyone has any suggestions on how to improve this, can find flaws in it, whatever, PLEASE, let me know!
-----

1. Under Colorado law, this complaint is time-barred.

2. The account referenced by the Plaintiff is a credit card account, also known as an "open account" or "revolving account." Credit card accounts are clearly regulated under Colorado Revised Statutes Title 5, the Colorado Uniform Consumer Credit Code.

3. Colorado's legal definition of what constitutes a credit card is found at CRS 5-2-213(1), the Colorado Uniform Consumer Credit Code, which states in whole: "For purposes of this section, "credit card bank or financial institution" means a commercial bank, industrial bank, credit union, thrift, savings and loan association, savings bank, or other state or federally supervised institution in this state that issues credit cards and may export rates and fees pursuant to the "National Bank Act", 12 U.S.C. sec. 85, "Depository Institutions Deregulation and Monetary Control Act of 1980", 12 U.S.C. secs. 1463, 1785, and 1831d, "Federal Credit Union Act", 12 U.S.C. sec. 1757, or "Alternative Mortgage Transaction Parity Act of 1982", 12 U.S.C. secs. 3801 to 3805, and any regulations thereunder."

4. The Federal Truth in Lending Act defines credit cards as "open account." See Title 15, Chapter 41, Subchapter I, Part A, § 1602(i).

5. Additionally, the Colorado Uniform Consumer Credit Code, CRS 5-12-107(7) states, in part, "…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…"

6. The clear plain language of CRS 13-80-101, the three year statute of limitation, states that all actions under the Uniform Consumer Credit Code are subject to a three-year statute of limitations. 13-80-101(g): "All claims under the "Uniform Consumer Credit Code", except section 5-5-201 (5), C.R.S."

7. Specific statute of limitations take precedence over general statutes of limitations. 13-80-101(g) is clearly a specific statute of limitations. See Mohawk Green Apartments v. Kramer, 709 P.2d 955 (Colo. App. 1985), citing Firstbank of North Longmont v. Banking Board, 648 P.2d 684 (1982 Colo. App.): "A statute of limitations drafted to relate to special cases controls over a general statute of limitations" (Exhibit 15) and also Glenn v. Mitchell, 71 Colo. 394, 207 P. 84 (1922); Wyatt v. Burnett, 95 Colo. 414, 36 P.2d 768 (1934), "A statute of limitations is applied only to cases clearly within its provisions."

8. The Plaintiff's own complaint states "breach of contract" as basis for his claim. "Breach of contract" is generally covered under 13-80-101, the three-year statute of limitations. Regardless, the Plaintiff's failure to attach true and accurate copies of the controlling agreement to their complaint - their failure to provide an accurate copy of the alledged "contract" - means the Plaintiff has failed to provide "documentary evidence from which contract damages could reliably be determined." This negates any claim that Plaintiff's action falls under 13-80-103.5, the 6-year statute of limitations. See Interbank Investments, LLC v Vail Valley Consolidated Water District, 99CA0477 Colorado Court of Appeals, September 14, 2000 (Exhibit 16).

9. CRS 13-80-103.5 is a general statute of limitation. 13-80-101 is also a general statute of limitation, however, 13-80-101(g) is a more specific statute of limitation, especially considering the plain language of the statute,. A statute that deals with "liquidated or unliquidated" debt is referring to a far larger potential class of actions than a statute that deals specifically with actions limited to those based firmly in the Colorado Uniform Consumer Credit Code. Therefore, 13-80-101(g) is more specific than 13-80-103.5 so 13-80-101(g) applies. See again Mohawk Green Apartments v. Kramer, 709 P.2d 955 (Colo. App. 1985), in which the more "limited in scope" statute of limitation, which also "specifically relates to the situation here" is applicable. This is analogous. Exhibit 15.

10. Section 13-80-103.5 applies only when there is a contract between the parties. See Curtis v. Counce, ___ P.3d ___ (Colo. App. No. 99CA1958, Mar. 1, 2001) "As no contract exists between plaintiff and defendant Fletter, we determine that the district court properly applied the three-year statute of limitations." See also, by analogy, from Curtis: "no Colorado appellate court has construed that portion of §13-80-103.5(1)(a) to pertain to §13-80-101(1)(h). See, e.g., Green Tree Financial Servicing Corp. v. Short, 10 P.3d 721 (Colo. App. 2000) (in replevin action to recover property encumbered under instrument securing debt, court implicitly relied on remaining two phrases of §13-80-103.5(1)(a))" and "In light of the legislative history of §13-80-103.5, and in the absence of a contrary appellate interpretation, we hold that the reference in §13-80-101(1)(h) to §13-80-103.5 does not pertain to the phrase "[a]ll actions to recover a liquidated debt or an unliquidated, determinable amount of money due to the person bringing the action."

11. Finally, in Chuchuru v. Chutchurru, 185 F 2d 62 (10th Cir. 1950) the Court ruled that statutes of limitations are "…to be construed liberally. It is the settled law in Colorado that courts look with favor upon statutes of limitation and construe them liberally."

12. Since specific limitations control over general limitations and all actions under the Colorado Uniform Consumer Code are controlled by the specific three-year statute of limitations in 13-80-101(g), the three year statute of limitations clearly applies. Therefore, the Plaintiff's complaint is time-barred. The Plaintiff's complaint should be dismissed.

Hey Gray,

Thank you for the well tought and well structured reply, you helped clear some of the fog. I appear again for 2/25/08 for yet another pre-trail that was to be the actual trial by jury. Now it's a new judge and I am going to fight for SOL and save the energy on other contested points. We need to get some case law on the books and take them down a few notches. I too, am running at this pro se whic always puts us in the corner forcing us to come out fighting hard. I will keep you posted as to out come and the direction I went, the use of your suggestions and the system in general.

Thanks again, good forum****************************lets stick to gether

 

[sburgen97]

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?

THIS IS A HORRIBLE AND IGNORANT COMMENT. Of course, there are 'losers' out there, but for the most part, there are unforseen circumstances in most everyone's lives that cause life changes. Some are able to climb out, mostly with the assistance of family if they have it, but some are not. Although the commission-hungry creditors like to say "I have heard this all before", the fact of the matter is that everyone IS a unique snowflake, and human beings fall in crisis. If this has not happened to you, then you cannot possibly understand, and you should consider yourself quite lucky. You may not know what it is like not to have enough money to buy the special foods and expensive milk that your sick toddler needs. Possibly, you have some inheritance from a family member, or well-to-do parents that have helped pull you up by your boot straps to give you a financial boost in life, or paid for your college so you were able to obtain a well paying job, or married into money because of your looks and big dick. You may not know what it is like to be totally on your own as a teenager, and have to get fake ID to get an apartment, then work 3 jobs to pay for food and rent. That's not a real good start which sets you up in life for financial success. For the real world inhabitants, we WORK FOR EVERYTHING. The loss of a business, the death of a spouse, or a personal illness of oneself or child, are all valid reasons that change people's lives forever and devastate. Unless we are speaking of irresponsible 'kids' here, the average adult DOES NOT get credit cards with the intent of 'stealing' anything. They mostly have good or even great credit when given the credit cards/loans and have paid faithfully on them for years; until of course, the unthinkable happens. So unless you have walked in those shoes, you should be ashamed of yourself for making these kinds of comments. Do not condem those when you know not what you say.

 

[GoingGrey]

I'm still looking for similar cases that are least within the same Federal district area, but haven't found any. I have found, however, a case in Florida which is SO on point it is almost scary. Read it, it will give you some ideas on how to argue the point re: 3 year SOL. I'm posting the entire text. Remember, this case is in FLORIDA!! But the LOGIC of it applies remarkably well to Colorado

Here is the text of the case, in the next post... too big for this post...:

 

[GoingGrey]

Remember: This case is in FLORIDA, NOT COLORADO, but the logic applies.

NOTE: I am posting this in two separate posts, this is the first half.... board won't let me post more than 10k characters ProSe Defendant! REMEMBER: THIS CASE IS IN FLORIDA, NOT COLORADO. But the same LOGIC applies!
----------
PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v. PAUL FERNANDES, ...t, 15th Judicial Circuit (Appellate) in and for Palm Beach County.
13 Fla. L. Weekly Supp. 560a
Contracts -- Credit agreement -- Limitation of actions -- No error in dismissal of statement of
claim for breach of contract, account stated, and unjust enrichment for debt incurred on credit
card based on expiration of four-year statute of limitations -- Construction of conflicting statutory
provisions establishing five-year limitations period to recover on contract founded on written
instrument and four-year limitations period to recover on liability not founded on written
instrument and on store accounts requires that store accounts be subject to four-year statute of
limitations whether or not founded on written instrument -- Further, 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, Appellee. Circuit
Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County. Case No.
502005AP000032XXXXMB, Division ‘AY'. March 6, 2006. Appeal from County Court, in and for
Palm Beach County, Judge Nancy Perez. Counsel: Leslie Mark Schneider, Hayt, Hayt & Landau,
Miami, for Appellant. Paul Fernandes, Boca Raton, pro se.

(PER CURIAM.) Appellant, Portfolio Recovery Associates, LLC (“Portfolio”), sued Appellee, Paul
Fernandes, as the alleged assignee of a debt incurred by Fernandes to Sears National Bank on a Sears
credit card. Portfolio filed a statement of claim under the Small Claims Rules for breach of contract
(Count 1), account stated (Count 2), and unjust enrichment (Count 3), claiming $3,201.06 in damages.
Fernandes orally moved to dismiss the claims as outside the statute of limitations at the pretrial
conference. See Rule 7.090©, Fla. Sm. Cl. R. Portfolio argued that Florida Statute §95.11(2)(cool.gif, which
provides for a five year statute of limitations, governed because the statement of claim alleged a cause of
action to recover on a contract founded on a written instrument. Fernandes argued that Florida Statute
§95.11(3)(k), which provides for a four year statute of limitations, governed because the action was not
founded on a written instrument or was on a store account. The trial court dismissed the case based on
its finding that the credit card account was an open account subject to the four year statute of
limitations.
1
Portfolio argues that the trial court erred when it dismissed the statement of claim based on a finding that
the claim was barred by the four year statute of limitations. We disagree.
2
An order dismissing a complaint is reviewed de novo. See City of Hollywood v. Petrosino, 864 So.2d
1175 (Fla. 4th DCA 2004). The claim must be taken as true and considered in the light most favorable to
the plaintiff, subject to the trial court's ability to summarily dispose of small claims actions if no triable
issue exists. See Bryant v. Adventist Health Systems Sunbelt, Inc., 869 So.2d 681 (Fla. 5th DCA 2004);
Rule 7.135, Fla. Sm. Cl. R.

PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v. PAUL FERNANDES, ...t, 15th Judicial Circuit (Appellate) in and for Palm Beach County.
The nature of the claim, and not the specific form of action selected by a plaintiff to assert it, determines
the applicable statute of limitations. See 20 Am. Jur. 2d, Credit Cards, §46 (2005). In Count 1, Portfolio
alleged that Fernandes “by execution of the application and/or by use of the credit card, accepted the
terms and conditions of the credit card holder agreement” attached as Exhibit A. Attached as Exhibit A
was a copy of a document entitled “Sears Credit Card Account Sears Premium Card Account Cardholder
Account and Security Agreement.”

Section 95.11(2)(cool.gif, Fla. Stat., provides that the statute of limitations on actions to recover on a contract
founded on a written instrument is five years. Conversely, section 95.11(3)(k), Fla. Stat., provides that
the statute of limitations to recover on a contract, obligation or liability not founded on a written
instrument and on store accounts is four years.

When construing statutes, the specific controls over the general. See Northwest v. Balkany, 727 So. 2d
382 (Fla. 5th DCA 1999). Thus, if a claim arguably falls within two contradictory subsections of the
statute, the more specific controls. Even if Count 1 could be deemed an action founded on a written
instrument, it can also be deemed an action on a store account. See 20 Am. Jur. 2d, Credit Cards, §46
(2005); Carte Blanche Corporation v. Pappas, 216 So. 2d 917 (La. 2d Cir. 1968).

Store accounts have
been subject to a separate statute of limitations since 1872. Laws of Florida 1872, c. 1869, §10;
McClellan's Digest, §10, p. 733. “The provision is for the benefit of those who have stores, and keep
goods therein for sale, and sell them, keeping accounts against the purchasers and relying upon their
books of accounts in which the articles are charged as evidence in case of controversy,” and applies
whether there is an express or implied agreement covering the charges. Saloman v. The Pioneer Co-
operative Company, 21 Fla. 374, 385, 1885 WL 1777 (Fla. 1885). The current grammatical structure,
which provides for the limitations period on actions “upon a contract . . . not founded upon an
instrument of writing, including an action for goods, wares and merchandise sold and delivered, and on
store accounts,” has been used since 1919. (emphasis supplied). Laws of Florida 1919, c. 7838, §10,
subd.9. “. . . ©lauses separated by commas are nonrestrictive clauses intended to introduce independent
concepts.” Amendments to the Florida Rules of Appellate Procedure, 696 So. 2d 1103, 1108, footnote 6
(Fla. 1996) (Anstead concurring) (quoting brief); see, also, The Elements of Style, Struck and White, 3rd
Ed., p. 5 (“(p)lace a comma before a conjunction introducing an independent clause”). Thus store
accounts are subject to a four year statute of limitations whether or not founded on a written instrument.
See Saloman, supra; Wagner v. Botts, 88 So. 2d 611, 613 (Fla. 1956) (“(h)istorically, parliamentary
enactments originally were not punctuated at all. However, the Legislatures of our country have
consistently attempted to follow the rules dictated by grammar books with the result that statutes are
now punctuated prior to enactment. The better rule now seems to be that punctuation is a part of the Act
and that it may be considered in the interpretation of the Act but may not be used to create doubt or to
distort or defeat the intention of the Legislature . . . We deem it proper to adhere to what now appears to
be the better rule which is to treat the rules of punctuation on a parity with other rules of
interpretation.”); Broward Builders Exchange, Inc. v. Goehring, 231 So. 3d 513, 515 (Fla. 1970) (“(i)t
cannot now be assumed that the Legislature was unfamiliar with this simple rule of punctuation . . .”).
Store accounts, of course, as a species of open accounts, may be based on either a written or oral
agreement. See Robert W. Gottfried v. Cole, 454 So. 2d 695 (Fla. 4th DCA 1984); Hawkins v. Barnes,

PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v. PAUL FERNANDES, ...t, 15th Judicial Circuit (Appellate) in and for Palm Beach County.
661 So. 2d 1271 (Fla. 5th DCA 1995).
Count 1 alleges that Fernandes bound himself to the terms of the Cardholder Account and Security
Agreement either when he executed an application for a Sears card or when he used a Sears card. If the
Cardholder Account and Security Agreement alone were introduced into evidence at trial, though, it
would not be sufficient to establish Fernandes' liability. See Colorado National Bank of Denver v. Story,
261 Mont. 375, 862 P. 2d 1120 (Mont. 1993). By itself, it created no liability for Fernandes.

Instead, it
addressed the manner in which a liability which might be later created should be discharged.

 

[GoingGrey]

2nd half of Florida case

If
evidence of liability is partially in writing but the writings are incomplete to establish liability, then the
contract is regarded as oral for statute of limitations purposes. See ARDC Corporation v. Hogan, 656 So.
2d 1371 (Fla. 4th DCA 1995), rev. den. 666 So. 2d 143 (Fla. 1995); Multi-Line Claims Service, Inc. v.
Cumis Insurance Society, Inc., 739 So. 2d 144 (Fla. 3d DCA 1999) (four years statute of limitations for
breach of oral contract applied to action on oral contract for adjusting services, though parties agreed to
compensation based on a written fee schedule); Johnson v. Harrison Heardware Furniture Co., 119 Fla.
479, 472, 160 So. 878 (1935) (“(t)he writings attached to, relied on, and made a part of, the second
amendment to plaintiff's replication do not on their face constitute a contractual acknowledgment of the
loan of any money by plaintiff to defendant, which is the thing sued for, therefore such writings per se
can avail nothing to plaintiff as a sufficient preclusion of the bar of the three-year statute of limitations
[applicable to actions not founded upon an instrument in writing.] . . .”); Gulf Life Inc. Co. v.
Hillsborough County, 129 Fla. 98, 104, 176 So. 72 (1937) (“(i)n order that a contract be founded upon a
written instrument, the instrument must contain a contract to do the thing for the nonperformance of
which the action is brought.”); Ball v. Roney, 112 Fla. 186, 150 So. 240 (1933); Schrank v. Pearlman,
683 So. 2d 559 (Fla. 3d DCA 1996), rev. den. 691 So. 2d 1081 (Fla. 1997).

The action is not founded
on a written instrument for statute of limitations purposes.

The legislative scheme makes sense. See Bush v. International Fidelity Ins. Co., 834 So. 2d 212 (Fla. 4th
DCA 2002), rev. den. 847 So. 2d 976 (Fla. 2003) (statutory provisions to be given reasonable and
logical construction). “. . . (S)tatutes of limitations are designed to prevent undue delay in bringing suit
on claims and to suppress fraudulent and stale claims from being asserted, to the surprise of parties or
their representatives, when all the proper vouchers and evidence are lost, or the facts have become
obscure from the lapse of time or the defective memory or death or removal of [a] witness.” Foremost
Properties, Inc. v. Gladman, 100 So. 2d 669, 672 (Fla. 1st DCA 1958), cert. den. 102 So. 2d 728 (Fla.
1958) (citation omitted). A review of the statute shows, consistent with common sense, that those
actions on which proof is less likely to deteriorate over time are subject to longer limitations periods;
those actions on which proof is more likely to deteriorate because of faulty memory or otherwise are
subject to shorter limitations periods. Unlike a written contract containing all the terms sued on, proof of
the balance due under a store credit card depends on the correctness of the store's books. We know,
though, that record keepers come and go; purchased items are returned or exchanged; and partial
payments are made. Proof of the amount due under a store credit card is simply not as secure as proof of
the amount due on, for example, a promissory note that contains in writing all the terms of the parties'
undertakings. See Nardone v. Reynolds, 333 So. 2d 25, 36 (Fla. 1976), mod. on other grds., Tanner v.
Hartog, 618 So. 2d 177 (Fla. 1993) (unfair to allow one who has slept on his rights to sue a party “ ‘. . .

PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v. PAUL FERNANDES, ...t, 15th Judicial Circuit (Appellate) in and for Palm Beach County.
who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced
or discarded records, and missing or deceased witnesses' ”); Allie v. Ionata, 503 So. 2d 1237 (Fla. 1987).
Because Count 1 alleges a claim on a store account; because it does not allege a claim to recover on a
contract founded on a written instrument; because under the Small Claims Rules the trial court properly
inquired into undisputed facts at the pre-trial conference that would be dispositive of the claims; and
because the trial court properly found that the claims raised in Counts 2 and 3 of the statement of claim
were likewise subject to a four year limitations period, which Portfolio does not dispute, it is
ORDERED AND ADJUDGED that the trial court's judgment is AFFIRMED. (SMITH, MAASS and
STERN, JJ., concur.)
__________________
Footnotes:

1
Apparently the trial court summarily disposed of the statement of claim on being apprised of the last
payment date. See Rule 7.135, Fla. Sm. Cl. R.
2
On appeal from an order of dismissal an appellate court may consider only issues presented to the trial
judge. See Sparta State Bank v. Pape, 477 So. 2d 3 (Fla. 5th DCA 1985). This Court agrees with the trial
court's decision to dismiss Counts 2 and 3 of the statement of claim. Neither party has taken issue with
the trial court's decision to dismiss those counts. Portfolio concedes its claims are precluded if subject to
the four year limitations period.
3
Portfolio alleges it is the assignee of Sears National Bank, an affiliate of Sears, Roebuck and Co. See
preamble to Cardholder Account and Security Agreement; 12 U.S.C. § 1841(k) (“. . .the term ‘affiliate'
means any company that controls, is controlled by, or is under common control with another company.”)
Under the Competitive Equality Banking Act of 1987, Sears could own a credit card bank without
violating the Bank Holding Company Act of 1956 and thus charge a nationwide uniform rate of interest
on credit card sales. See, also, Marquette Nat'l Bank v. First Omaha Serv. Corp., 439 U.S. 299, 99 S. Ct.
540 (1978).
4
Portfolio implicitly recognized this when it incorporated elements of a claim for account stated in
Count 1. See Paragraphs 8, 9, statement of claim; Merrill-Stevens Dry Dock Co. v. “Corniche Express”,
400 So. 2d 1286 (Fla. 3d DCA 1981).
5
No statement of account was attached to the statement of claim.
6
The cited cases are distinguishable from those where the written instrument obligated the debtor to
purchase defined goods or services and pay for them at a contemporaneously determined or
determinable rate. Compare, e.g., McGill v. ****rell, 88 Fla. 54, 101 So. 199 (1924); Mercy Hospital,
http://www.floridalawweekly.com/newsystem/.*****vol13/560a.htm (4 of 5)6/2/2006 10:34:35 PM
Page 5
PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v. PAUL FERNANDES, ...t, 15th Judicial Circuit (Appellate) in and for Palm Beach County.
Inc. v. Carr, 297 So. 2d 598 (Fla. 3d DCA 1974), cert. den. 307 So. 2d 448 (Fla. 1974).
7
For example, assume Smith agrees in writing with Jones that if Jones loans him money Smith will
repay it with 10% interest. If Jones later sues Smith claiming Smith borrowed money and did not repay
it, whether Smith is liable to Jones is dependent on whether and how much he borrowed. Suit to recover
the money loaned is not founded on a written instrument. See Johnson v. Harrison Hardware &
Furniture Co., supra.
* * *

 

[chrisjoy10]

update?

GoingGray,

I just found this board and have read your entire battle and journey from the very beginning through to the end of this thread. Now I'm at the very last post, and I'm thinking...what the heck happened next?? What happened at your mediation with Portfolio Recovery Associates and the outcome of your case? Did I miss this posted somewhere else? I'm hoping at least that this part of the story turned out favorably for you. Would love to hear an update. I was rooting for you the entire way. Way to stand your ground and give a balls out fight.

Also, how did things go regarding the issue with CapOne and their non-reporting of credit limit? If it gives you any comfort, know that the time you've spent typing and telling your story about this has made a difference. You talk about "just that one person"...well, it's me. And to whomever else who reads this thread, I'm sure I'm not alone. It actually opened my eyes regarding my own credit report and similar errors I am finding therein.

So for that, I thank you.

 

[GoingGrey]

Update!

Sorry about not posting the latest sooner ya'll... "real life" gets in the way sometimes!

Anyway... here's the latest. I went to mediation on the 29th. We were put into two separate rooms, and the mediator went back and forth, talking with me, asking me questions, then going to the other room and I assume talking with the lawyer...could have been talking about golf and the whole thing just an act for me for all I know! But anyway... it was somewhat obvious the mediator had already figured out the best outcome, in his opinion, for this case, for both sides, and that he was going to push me towards accepting that outcome. Gently push, but push. And I did feel a little pushed, a little pressured, towards accepting his viewpoint.

Which was for us both to agree to signing a stipulated motion to dismiss with prejudice. They dismiss their complaint with prejudice, I dismiss my counterclaim with prejudice, we call it even and over. I countered that I would agree to that if they would agree to remove it from my credit report. Mediator goes back to the lawyer, comes back to me, says, no need to agree to remove it, because once it is dismissed with prejudice, they can't collect anyway, so just send the dismissal to the credit reporting agencies and ask for it to be removed.

I wanted SOMETHING for all the crap they've done, but as I thought about it, I decided there was certain advantages to agreeing to this. With their claim dismissed with prejudice, and NO non-disclosure agreement, I can talk freely and openly about everything I went through, researched, discovered, and learned. They can never sue me again. I should be able to get their tradeline removed from my credit report easily ... but most importantly, IT IS OVER. DONE.

So I agreed. The case has been dismissed with prejudice. Got the judge's signature and a certified copy of the signed stipulation. Done. And although it might not be the best possible outcome, I thought a lot about it, I knew it was a strong possibility going into mediation, and even a possibility if I'd pursued a trial. I'm happy enough with the dismissal. It's a good outcome.

Of course, things are never so easy.... the JDB is refusing to remove the tradeline from my credit report. Despite the dismissal with prejudice. So I'm now battling with the credit reporting agencies - I'm on letter-writing-round-two with them on this. If they once again refuse, I will take them to court. All three of the CRAs and the JDB for violations of the FCRA. This time, I've got a lawyer - which is SO COOL! No lawyer would touch my prior case, but this one, as the lawyer says, "is easy," so if they refuse to remove the TL once again, then he'll file in the district court for me. The basis of this is simple: Under the FCRA, a collection agency (and the JDB *IS* a collection agency!!!) cannot report a debt they cannot anymore legally collect on. Simple.

Of course, the JDB will argue that they CAN continue to collect, they just can't SUE. Which makes for an interesting argument...

Meanwhile, I am working on sending complaints with everything I found to all the various agencies I can. I am sending complaints to the Colorado Supreme Court's Attorney Review Board, the FTC, the Colorado Collection Agency Board, the BBB, and anyone else I can. The basis of the complaints isn't so much MY case, but all the OTHER cases I found.

I am also trying to get someone in the media involved. This is a good story that needs to be reported. I thought I had my local newspaper hooked, but it seems like they have lost interest, as they haven't gotten back to me in two weeks now. 5-car-accidents on the highway take precedence over long-term attorney, collection agency, and possibly judge & court misconduct....

So that's where things are at right now! Hopefully I'll get some agency somewhere to follow up on this, or better yet, some media involvement!

 

[TigerD]

Verifying a tradeline as correct is a var cry from actively collecting. I think you won what your were going to win on this one. Congrats on that, but it may be time to cut bait.

DC