Need help been served

Breach of contract for sale under the UCC: 4 years.

Open account or unwritten contract: 5 years. NOTE: Except, as provided in 810 ILCS 5/2- 725 (UCC), actions based on a written contract must be filed within 10 years, but if a payment or new written promise to pay is in made during the 10 year period, then the action may be commenced within 10 years after the date of the payment or promise to pay.

 

What I would like to know is how and why UCC applies to store credit card debt.

 

probably found it on budhibbs

 

Unless stated otherwise, state banking and interest laws that are specific to retail credit cards would pre-empt general laws, such as the UCC.

Its very possible that state law defines a retail credit card differently from a credit card issued by a bank or national financial insititution, and the laws that apply to retail credit cards could differ significantly from the others. It's definitely worth exploring.

In your answer, you might cite the state laws that you claim govern the transaction, and quote any relevant parts thereof.

Your state may not require you to plead the specific statute of limitations that you are relying on (check the state and local rules of procedure), and it may be sufficent to merely assert that "the the claim is in whole, or in part, barred by the applicable statute(s) of limitation."

Even so, you might as well prepare the argument, because you will most likely recieve discovery requests that ask for any information concerning the factual and legal basis of your affirmative defeneses. Good Luck!

 

My point exactly or at least in a sense.

UCC is, as most of us know, Uniform Commercial Code and is the controlling law where only business to business transactions are concerned. In most states consumer law would apply to such things as credit cards of any type where the purchase was made for items of personal or in home use and not for purchases relevant to usage by a business.

Some states do use U.C.C. to govern vehicle purchases and Illinois or one of it's sister states to the east does regulate consumer purchases under it's U.C.C. laws as well and has almost no consumer protection law at all. I don't remember which state that is.

His best bet is to rely on Illinois Statute of Limitations for consumer debt which is apparently 5 years.

If his debt is within the Illinois 5 year limitation then he should use that in his affirmative defenses at the very least.

 

That is another trap he ought to avoid by making sure that he send requests for interrogatories, admissions and demand for production of documents before they have a chance to send them to him.

Of course that means that he has to know and properly use Illinois Rules of procedure and Rules of Evidence in order to properly formulate his discovery requests as well as how to properly answer theirs without giving them any usable information they don't already have. He needs to anticipate that the Plaintiff's attorney will do the same. He will object to every item that the defendant attempts to get discovery on and will scream his head off when the defendant does the same to him.

 

And so the dance begins....

 

do you owe it? is it your account?

 

It seems you didn't read my earlier post. The SOL in Illinois for credit card debt is 5 years not 10 years. A store card is still an extension of credit based on a card, not a written contract to buy a single specific item. It is therefore an open account.

You guess you'll just answer the summons by disputing the debt? It also seems that you haven't been reading the threads here or you haven't understood them very well.

A simple dispute of the debt isn't going to fly unless you can precisely delineate the exact basis for your dispute and provide proof of the truthfulness and accuracy of your dispute. You can dispute the debt in it's entirety if you can prove (for instance) that you have already paid the debt or that you are misjoined to the complaint or that a fraud has somehow occurred. In most demands for judgment those are not valid defenses. Seldom can the defendant prove that he has already paid the debt nor can he prove that he has been misjoined to the complaint. He might be able to show some element of fraud but the court can also find that he lost the right to claim fraud or improper billing unless he can prove that he had disputed timely and properly using the requirements of the Fair Billing Act to do so. Had he done that his remedy would have been to seek remedy under the auspices of that act. If he failed to do so then he hasn't much of a leg to stand on now.

If he claims misjoinder then he might also claim identity theft but if he has not filed an identity theft report with the police and other authorities then that isn't likely to make a strong defense either.

If you are close to that 5 year statute of limitations (within a few months) then you might be able to launch a laches defense.

Sounds to me that if you don't learn how to properly defend you will end up with a judgment solidly hung around your neck. Then you can look forward to a garnishment action. Those are highly entertaining too in that the plaintiff and his attorney will soon be laughing all the way to the bank.

 

Since you aren't beyond the 5 year SOL you might want to think about using a laches defense among other possible things.