SOL defense rejected

[howens12]

What is the name of your state? Florida
I just got back from a pretrial conference and used SOL as my defense. Here is some back ground. Had an AMEX card was charged of and DOLA was 12/1996. started to pay a ca in 1998 until 5/2004. I was told by the judge that i may have tolled the statutes by making payments, however when i read the fla. statutes 95.051 When limitations tolled (f) the payment of any part of the principle or interest of any obligation or liability founded on a written instrument. Now in my reading of the statutes cc are open accounts. can someone clear this up for me. The judge held this over for trial for other reason that i will be asking the panel later.

 

[seniorjudge]

I am NOT a creditor/debtor lawyer. From your statement of facts, if you made a payment in May of last year, then the SOL would run four years from then. Just a guess....

http://www.fair-debt-collection.com/SOL-by-State.html#10

Florida Statutes of Limitation

Contract or written instrument and for mortgage foreclosure: 5 years. F.S. 95.11.

Libel, slander, or unpaid wages: 2 years.

Judgments: 20 years total and to be a lien on any real property, it has to be re-recorded for a second time at 10 years.

The limitations period begins from the date the last element of the cause of action occurred, (95.051). NOTE: The limitation period is tolled (stopped) for any period during which the debtor is absent from the state and each time a voluntary payment is made on a debt arising from a written instrument.

Almost all other actions fall under the 4-year catch-all limitations period, (F.S. 95.11(3)(p)).

 

[Ladynred]

I would have to agree, you put a stop (tolled) the SOL in 1998 when you started making payments up until 2004. The SOL would start running again when you stopped paying in 2004... sorry

 

[seniorjudge]

I would have to agree, you put a stop (tolled) the SOL in 1998 when you started making payments up until 2004. The SOL would start running again when you stopped paying in 2004... sorry

We bill collectors must stick together!

 

[howens12]

so what i'm getting is that a credit card is a written instrument. because as i quoted the fla statutes 95.051 when limitation tolled it says that the payment of any part of the principle or interestof any obligation or liability founded on a WRITTEN INSTRUMENT. sorry

 

[Ladynred]

No, credit cards are open-ended agreements, and they are defined that way in the Truth in Lending Act.

You might want to read here:
http://community-2.webtv.net/Y-Chat/WhyChatsCredit/page10.htm

Unfortunately, the judges in FL, according to many, many accounts from Floridians, are deciding that credit cards ARE written contracts, and they proceed under that decision.

 

[seniorjudge]

so what i'm getting is that a credit card is a written instrument. because as i quoted the fla statutes 95.051 when limitation tolled it says that the payment of any part of the principle or interestof any obligation or liability founded on a WRITTEN INSTRUMENT. sorry

Almost all other actions fall under the 4-year catch-all limitations period, (F.S. 95.11(3)(p)).

Please read the posts....