Hello!

I live in Colorado, on Sunday recived the Summons for and old credit card debt. The Attorny has field it on May 22, I hav not get the debt validation, and to request it not enough time I hav to ansfer by the Julay 10. All I have on the account just an old credit report, that, is showing the account was in Charge Off from June 2006 to August 2007, I know thet the last payment was made not les then 6 month befor. I need to get proof of the last payment date on the account, or somthing to proof thet the account is past statu of limitation.

Can any one sujast somthink in this case.
I have contacted an attorny on JustAnswer nad get sujaction that i can file an ansfer with raise affirmative defenses. but how can i do this, i found the ansfer on another board just cannot post a link (dont have enought points) that could work for the case, just if i had the proof of the last payment date. Sinc i don't hav the proof i realy dont know what should i do.

I can't afford to hire an Attorny at the moment. and time is so limited.

Please eny one if you can halp me.

Than you All in advance.

While there may be some affirmative defenses that you can use, I can't think of any from reading your problem.

As far as getting proof of payment, do you have any bank statements from that period? I would suggest bringing along every bank statement from when you made your last payment through today (well-organized, of course; don't just bring in a pile of paper).

However, I don't think this debt is past the statute of limitations. I may be wrong, but I believe the SOL for litigation is six years in Colorado. If your original agreement had a "choice of law" provision that specified a state with a 3-year SOL (New Hampshire, for example), you'd want to find that contract and bring it as well. Whether or not a judge honors the choice of law clause is anyone's guess, but it's worth a shot.

Good luck.

__________________
I am not a lawyer, nor am I an "expert" or "authority" on anything. This post reflects my opinion only, and may be wrong or inappropriate. Always consult a legal professional for guidance.

All i have is just an old credit report showing that account was charged off as of Julay 2006

Defendant answers the complaint as follows:
Plaintiff does not have a valid claim of debt against Defendant because Colorado’s 3 year Statute of Limitations on this debt has expired over a year ago.

Affirmative Defense
1. The alleged debt is over 3 years old and the Statute of Limitations on this alleged debt has expired. This allege debt is time-barred under Colorado Statute 13-80-101.
Colorado Statute 13-80-101: TITLE 13 COURTS AND COURT PROCEDURE: LIMITATION OF ACTIONS : ARTICLE 80 LIMITATIONS - PERSONAL ACTIONS: 13-80-101. General limitation of actions - three years.
(1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within three years after the cause of action accrues, and not thereafter:
(a) All contract actions, including personal contracts and actions under the "Uniform Commercial Code", except as otherwise provided in section 13-80-103.5;

2. Credit card accounts are regulated under Colorado Revised Statutes Title 5, the Colorado Uniform Consumer Credit Code. 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:
CRS 5-2-213(1): 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.
Additionally, the Colorado Uniform Consumer Credit Code, CRS 5-12-107(7) states, in part:
CRS 5-12-107(7): 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.

3. Plaintiffs’ complaint alleges that Defendant failed to pay the balance due on a credit card

4. Plaintiff provided statements to Defendant, dated January 23 – Feb 23, 2004, and Feb 23 – Mar 23, 2004, detailing dates of overdue balance and a default on payment, which occurred prior to January 23, 2004, exceeding 4 years from date of default to date of Plaintiff’s filing.

5. The clear 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 as otherwise provided in section 13-80-103.5;"

6. The alleged debt in Plaintiff’s complaint does not fall under Colorado Statute 13-80-103.5. General limitation of actions - six years.

CRS 13-80-103.5 (1) The following actions shall be commenced within six years after the cause of action accrues, and not thereafter. (a) All actions to recover a liquidated debt or an unliquidated, determinable amount of money due to the person bringing the action, all actions for the enforcement of rights set forth in any instrument securing the payment of or evidencing any debt, and all actions of replevin to recover the possession of personal property encumbered under any instrument securing any debt; except that actions to recover pursuant to section 38-35-124.5 (3), C.R.S., shall be commenced within one year;

"Liquidated debt" and "unliquidated, determinable amount" construed. A debt is deemed "liquidated" if the amount due is capable of ascertainment by reference to an agreement or by simple computation. A debtor's dispute of or defenses against such claim, or any setoff or counterclaim interposed, does not affect this result. Rotenberg v. Richards, 899 P.2d 365 (Colo. App. 1995); applied in Interbank Inv. v. Vail Valley Consol. Water, 12 P.3d 1224 (Colo. App. 2000).

7. The account referenced by the Plaintiff is a credit card account, also known as an "open account" or "revolving account." The Federal Truth in Lending Act defines credit cards as "open account."

Federal Truth In Lending Act Title 15 § 103:
§ 103. Definitions and rules of construction
(i) The term "open end credit plan" means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time.

8. The original creditor’s terms and conditions relate to an open-end agreement under Federal Truth in Lending Act 15 § 103 TILA. It is not plausible for a credit card agreement to be classified as an open-end agreement while it is active, but to be claimed to be a closed end "written" contract after default.
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."

9. The Federal Truth in Lending Act 15 § 103 TILA’s definition of credit cards as “Open Accounts” precludes the consideration of credit cards as “Liquidated debt or an unliquidated, determinable amount” because the “amount due” on an open account is not referenced in any written contract or agreement, nor is the Plaintiff’s claim for recovery of a $7,490.56 account balance, plus $6,692.37 interest, and $1,120 for attorney fees, ascertained by a “simple computation, and if and when those detailed claims are documented by Plaintiff, the complexity of those computations will then become clear to the court.

10. Federal Truth in Lending Act Section 226.28 of Regulation Z Describes the effect of TILA on state laws:
As a general matter, state laws are preempted if they are inconsistent with the act and regulation, and then only to the extent of the inconsistency. A state law is inconsistent if it requires or permits creditors to make disclosures or take actions that contradict the requirements of federal law.

11. 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." Credit Cards are not clearly within the provision of “Liquidated or unliquidated determinable debt.”
12. 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.

13. 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.

14. 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."

Therefore the Statute of Limitations on this alleged debt has expired. This alleged debt is time-barred under Colorado Statute 13-80-101.

Counterclaim of Defendant
The Defendant asserts the following counterclaim or setoff against Capital One, TrakAmerica and Linebarger Googan Blair & Sampson. The amount of the counterclaim does not exceed the jurisdiction of the County Court.
Filing a lawsuit on debt that appears to be time barred, without the debt collector having first determined after reasonable inquiry or having been made aware by the Defendant that the limitations period has past, is not only an unethical business practice, no matter how profitable, but a knowingly fraudulent business practice within the meaning of Fair Debt Collection Practices Act §808. By filing this complaint and continuing to pursue a claim against Plaintiff, in light of the fact that it has clearly passed the three year Statute of Limitation in the State of Colorado, is a violation of 15 U.S.C. § 1692e Count II – FDECPA § 1692e Claims.
Violations of FDCPA are subject to fines of $1,000 each, plus attorney fees.

Claim for Relief
Defendant requests that this Court dismiss this case with prejudice, on the basis that the alleged debt is time-barred under Colorado Statute 13-80-101 and award Defendant $1,000 for violation of FDCA Rules, plus attorney fees of $1,000. If Plaintiff proceeds to trial with this action, Defendant requests additional reasonable attorney fees plus punitive damages for wasting Defendant’s time and causing mental anguish and deteriorated health.
The Defendant does demand a trial by jury.

Dumb Bob looked this up, at least he thinks this is the right case:

32 P.3d 585; 2001 Colo. App. LEXIS 336; 2001 Colo. J. C.A.R. 1178
While a court case where someone sues her own mother for stealing her lottery ticket using the perjured testimony of her two young children is interesting, Dumb Bob doesn't see how it is directly applicable to whether or not written contracts exist between credit card issuers and credit card users.

Is there a Colorado case that is on point to this issue? If you are correct about the three year SOL, why not get a lawyer and sue under the FDCPA? It has provisions for attorney's fees. But if you are not correct, best to know that before you go to court and have no alternative argument.

Dumb Bob doesn't see how it is directly applicable to whether or not written contracts exist between credit card issuers and credit card users.

It does aply, as dicisoin was made whether or not written contracts exist between defendant and plaintiff. Sins contract does not exist it is an open account.

That's only my openion, not legal advice, and not even results of my own research, I found this on another forum, and just could not have a link posted.

On a blog debtprison I found some intresting info

Just don't know if i can apply this in my case, so any sujection would help


Quote:
If you receive a summons for civil suit it will say something like ‘we, the collection agency, are taking the debtor to court, and we swear that the amount of money we claim he owes is correct.’ This is called a sworn account or an affidavit of debt. Basically the company says “Yeah we promise that the dude owes us this amount of money.” Now you need to write up a letter of sworn denial, have it notarized, file it with the court, and send a copy to the collection agency.

For a good illustration explaining the necessity of the Sworn Denial click here.

This needs to be a statement in writing that you FILE with the court where you have been sued. It can be a simple statement, but it needs to be typed, signed, notarized, and filed with the clerk of the court and a copy sent to the collection lawyer. It needs to be a graduated denial. In other words, it needs to say, I deny this is my debt and if it is my debt, I deny that it is still a valid debt and if it is a valid debt, I deny the amount sued for is the correct amount.

When a sworn denial is filed, the debt collection attorney can not rely upon a sworn affidavit of account, but must instead produce a live witness to testify about the debt. The requirement of a live witness changes the dynamic of the collection action considerably. The likelihood that the action will go no further now increases again.

Is it possible in the respond stand thet " I deny this is my debt and if it is my debt, I deny that it is still a valid debt and if it is a valid debt, I deny the amount sued for is the correct amount. "

And what would be the dicison of The Judge such respond.