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Your thoughts on SOL (FL, VA, AZ)

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Uncas72

Junior Member
Congrats, Gulfstream

Nice job!!

I, too, just prevailed over Capital One and I wanted to take a minute to thank you for your assistance and to tell the rest of the forum what I learned and how I managed to beat them.

This debt is no longer owned by Cap One. It was purchased several times over the past 3 years, most recently by a Miami firm. What they try to do is intimidate you and get you to settle, but I pushed back. The amount of the suit was in the neighborhood of $4500. Plaintiff argued that since they had a written contract, the SOL in Virginia was five years. I requested documentation. They sent a mountain of forms and records. I read everything. In doing so, I realized that most of what they sent was superfluous to the case. What I noticed was that what they sent me was not meant to enlighten but rather to conceal. What they didn't send was anything resembling a written contract. I opened this account in 1998 from a mail solicitation. In it, they provided something they called a "Guaranteed Acceptance Certificate," which I signed. On its face, it referred to "the terms on the reverse." In my mind, this document could not be complete, unless we had access to the reverse side of it. I made that point in my second hearing and the judge ordered them to produce it. What I got in the mail was a three page "Customer Agreement." I read it and realized this could not possibly be the reverse side of the aforementioned Certificate as that was only about a half page in size and if they condensed all these terms onto it, it would not be readable. Then, I noticed the clincher: on the last line, it read copyright 2002. They had attempted to represent their 2002 customer as the one that would have been applicable to my opening the account in 1998. This cut and paste job was not well-received. Case dismissed.

The lesson I learned in all of this was, if you are going to defend yourself, you must be diligent. The plaintiffs in my case alledged repeatedly that they had a signed contract. I made them prove it and they couldn't. Who knows why they didn't simply photocopy both sides of the Certificate. But, it either didn't comply with the law (which is my guess) or they continually overlooked it. In any event, I won; they lost. Victory is sweet.:)
 


bupringdaddy

Junior Member
Nice job!!

I, too, just prevailed over Capital One and I wanted to take a minute to thank you for your assistance and to tell the rest of the forum what I learned and how I managed to beat them.

This debt is no longer owned by Cap One. It was purchased several times over the past 3 years, most recently by a Miami firm. What they try to do is intimidate you and get you to settle, but I pushed back. The amount of the suit was in the neighborhood of $4500. Plaintiff argued that since they had a written contract, the SOL in Virginia was five years. I requested documentation. They sent a mountain of forms and records. I read everything. In doing so, I realized that most of what they sent was superfluous to the case. What I noticed was that what they sent me was not meant to enlighten but rather to conceal. What they didn't send was anything resembling a written contract. I opened this account in 1998 from a mail solicitation. In it, they provided something they called a "Guaranteed Acceptance Certificate," which I signed. On its face, it referred to "the terms on the reverse." In my mind, this document could not be complete, unless we had access to the reverse side of it. I made that point in my second hearing and the judge ordered them to produce it. What I got in the mail was a three page "Customer Agreement." I read it and realized this could not possibly be the reverse side of the aforementioned Certificate as that was only about a half page in size and if they condensed all these terms onto it, it would not be readable. Then, I noticed the clincher: on the last line, it read copyright 2002. They had attempted to represent their 2002 customer as the one that would have been applicable to my opening the account in 1998. This cut and paste job was not well-received. Case dismissed.

The lesson I learned in all of this was, if you are going to defend yourself, you must be diligent. The plaintiffs in my case alledged repeatedly that they had a signed contract. I made them prove it and they couldn't. Who knows why they didn't simply photocopy both sides of the Certificate. But, it either didn't comply with the law (which is my guess) or they continually overlooked it. In any event, I won; they lost. Victory is sweet.:)
Good job! I'm paying for the cheapest lawyer myself, but doing my own homwork too. I've already indicated new laws they ('many' different) lawyers were not aware of initially. Keep up the good work and share knowledge on the web. That's all the cut-throat collectors are doing, is doing all the 'free' law they can. So if a 'real' lawyer is needed, it is beyond their cost break even analysis (which is anything other than their time or telephone books of copies shipped to conceal the truth).

Yeah for the good guys (non-creditors or non-collection agencies)!
 

Shay-Pari'e

Senior Member
What is the name of your state? Florida

Senerio...

Credit card offer, solicited by a mailer to a consumer's residency in AZ in 2001, via a 30 second acceptance form that mentions nothing about terms or rates or interest etc...just a spot to sign and return by a certain date to accept, no application to fill out.

(which violates the:
6500 - FDIC Consumer Protection CHAPTER 2_CREDIT TRANSACTIONS 127. Open end consumer credit plans

(1) DIRECT MAIL APPLICATIONS AND SOLICITATIONS....

(A) INFORMATION IN TABULAR FORMAT.--Any application to open a credit card account for any person under an open end consumer credit plan, or a solicitation to open such an account without requiring an application, that is mailed to consumers shall disclose the following information, subject to subsection (e) and section 122(c): omitted all the stuff like rates and interest etc etc.....

Card is used until it has gone into default May 2002 for $1600, which the consumer disputes $1,000 of the charges as being charged due to theft. Consumer stops paying on it and there is nothing done on the account in the months and years to follow...after 3 years 2 months, consumer moves to Florida, not full time until June of 2006.

Creditor files in Oct 2006 in Florida for $2,500 plus interest and fees...a little more than $5,000 total.

Debtor claims that according to Florida Statute 95.10 (Borrowing Statute) Florida can not enforce this debt because the account was barred from being maintained in AZ (expired sol). Arizona Statute 12-543 states that OPEN ACCOUNTS have a 3 year SOL. Open accounts are federally defined as accounts that extend credit where repeated series of transaction will occur.

Also, according to the Terms and Agreement that the plaintiff submits, has a section that says...

Applicable Law; Severability; Assignment.
No matter where you live, this agreement and your Account are governed by Federal Law and by Virginia law.

Virginia carries a 3 year SOL on OPEN ACCOUNTS as well.

§ 8.01-246. Personal actions based on contracts.
(4). In actions upon any unwritten contract, express or implied, within three years.


On the Warrant in Debt (Form DC 412) a choice needs to be made between OPEN, CONTRACT, NOTE, or OTHER, so the judge knows which is being filed.

VA views credit cards as open accounts since there is no contract on its face as defined unless its is viewed as oral since parol evidence is needed (testimony from the custodian to link all their documents together and not located on a single face or paper).

So...fast forward....

The judge in Florida can not enforce the debt since the borrowing statute bars them from doing so. Both AZ and VA's SOL has expired and this debt, while morally owed, is not enforceable or collectible.

Let the arguments begin......;)
To bad, so sad,**************.....Credit is ruined. My advice? Don't have any credit cards except the debit /credit one from your bank. If you do not have the cash, you do not buy. If you are dumb enough to get into a loan you cannot afford, don't do it.

For example**************.... I live in the Bay area and have we have weathered the storm . We were able to buy a new home, (Played hard ball for a year), got our's rented out as an investment.

What I will do with this big house, I don't know, but you can't beat the builders paying the mortgage on your other house for 2 years, 50 grand to buy down the loan to a fixed 4.99 % for 15 years, paying off the equity line on the other house, and the builders paid the 1st 10% down and that loan is forgiven. We had the cash for the other 10 %.

My advice?

Work. Work as hard as you can to establish good credit. My father taught me well, and my hubby doesn't buy a thing he cannot aford.

It is our code of ethics, not every one though.

We pay taxes out the ass because we are in such a high tax bracket.

Not all can, but they can still strive to do so by simple means.
 

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