Ok so in June, my exboyfriend told me that a Sheriff showed up at his door looking for me. I had recently moved and didn't believe him. (I had recently applied for a Sheriffs job, LOL) I checked online and found out that someone was trying to serve me a summons. I went to the courthouse, entered an appearance and then prepared an answer. Blatt, Hassenmiller, etc is suing me on behalf of Associates Visa. They never responded to my answer. This appeared on my credit report about 4 years ago and I disputed it and it was removed. They're saying that I owe them $2000 as of 12/31/00. I went to court timidly the first time and they continued it. Then I did some research and started demanding validation. They said ok and continued it again. They sent me a letter with the name Associates, an account number, and an amount. Then they told me to fill out fraud forms, where they asked me for all my information, address, ss#, etc. That seemed fishy cuz if I owe them they should already have it. They also asked for a police report. I told them that from what they said this was 10 years old, I have no knowledge, and I didn't think that filing a police report made sense. I told the judge this and he said send her verification. They sent the same letter again. Today I went and basically told them that I didn't understand what they kept dragging me to court for if all they had was a name and an amount. I said prove it or proceed. We set a court date. I realize I may have been hasty in my anger but it's done now. Court in December. Question? Don't they have to prove that this should even be in court? Don't they need more verification than that? Whose burden is it to prove their case? Do I file a motion for discovery? A motion to compel them to respond to my answer which is also the interrogatories and admissions stuff?
Hi eokorie, Interesting post. Wish I could help, but I have the same problem and noone responded to my post.
It sure don't make any sense. Ten years old and you are demanding they validate and prove the debt? Why on earth would you do that? The debt has to be way over statute of limitations so why piddle around with them and lose it? That silly judge has to know it is out of stat too. If he don't then they need to put him in an old folks home instead of on the bench.
When did you default on this? They say you owe $2000 as of 2000. When did it go delinquent? Check the Statute of Limitations. Credit cards are usually 3-4 years. It may be out of SOL, in which case all you need to do is show up in court and assert the affirmative defense that it is out of statute. Don't rely on what your opponent tells you. You'll need to do a little research yourself. You really need to know when this debt first became delinquent and was never brought current. When was your last payment? Does a payment reset the SOL in your state? These are things you need to determine from a lawyer or from researching the law. The lawyer suing you is always going to state facts that make his case.
If I remember correctly, FDCPA states that the only way to reset the statute of limitations is for the consumer to pay the original creditor in full and have the original creditor reinstate the account to good standing. If I am correct in saying that then it makes no difference what any state law says about a payment resetting the SOL because under the supremacy clause federal law trumps state law every time.
The FDCPA covers how it is reporting. Every state has its own laws on SOL and what does or doesn't reset the SOL. That is not a federal law, it's governed by the individual states. In some states, making a payment resets the SOL. In some states, it doesn't.
Ok, I brought up the statute of limitations in my answer to the complaint. I asked again in front of the judge. They replied that they would present those papers at the next status hearing. They did not. I asked again and they asked for a trial date. I said what are we goiing to trial with. There is nothing here but a statement from the Plaintiff. The judge looked at him. He said we will present at trial your honor. Trial date set. I have looked into statute of limitations. Illlinois says 5 years IF it is an open ended account. Many other cases the judge ruled that CC's are not open ended accounts. Is this something I can bring up again in my motion for discovery? I know how important the statute of limitations thing is, but there are no dates to go by except 12/31/00 which they're saying is the date of the final statement. That is why I went into verification.
Hi eokorie, Let's get some facts: 1. Was this a valid debt with Associates Visa? 2. If it was what were the dates - when did it go delinquent? 3. Did B, H send you an initial letter saying that "this is an attempt to collect a debt, etc. You have 30 days to dispute..." 4. From above, Is what they are saying true? I have more questions, but will get to them later. A
More Followup Without answers to my previous post, it looks like this is past SOLC for ILL. Being that you have a court date, I would use this as an affirmative defense. I think that they are banking on the fact that you are not aware of the SOLC and that you can use this as an affirmative defense. (They haven't got a judgment, and this is why they are dragging you into court). And move that the case be dismissed because of this. The statute of limitations is a powerful tool. The SOL can thwart off lawsuits and collectors. If a debt is legally expired, you can escape being sued or having to pay an old debt. Likewise, it can be detrimental because many debtors unwillingly renew the SOL by making a partial payment or a written promise to pay which can extend the statute. The statute of limitations is a civil code. Each state has its own statute. For instance, the code section in Cal. Code of Civil Procedure § 337. The legal meaning for statute of limitations is: THE TIME OF COMMENCING ACTIONS-Time allowed that litigation-lawsuit can be brought. After that time, it has expired. Statute is a law. Passed by legislation and varies by state. The original statute of limitations begins at the onset of the contract signing (see more below for time barred debts). Statute of limitations vary from state to state but it is usually 4-6 years depending on the state. The term statute of limitations means the time allotted to legally enforce the debt. If a statute expires and someone sues you, it is up to you to bring the expired SOL defense to the other parties attention. If you say nothing or do not bring up the expired statute then the judgment can be entered. Don't assume it means the other party is barred from attempting to collect. It simply means that your defense is the expired SOL not to enforce the lawsuit. If your statute of limitations has expired that means that the debt cannot be enforced by lawsuit, that does not dismiss the debt and the creditor can still leave it on your credit for 7 years (excluding some public records, those can remain for 10 years) but legally you do not have to pay it if the statute has expired. So, I would send a letter to the CA/Lawyer stating this. The letter following is to give you an idea. YOU WILL NEED TO ADJUST IT FOR YOUR SITUATION. YOU WILL ALSO NEED TO RESEARCH YOUR STATE LAWS TO CITE THE CORRECT SECTION OF THE CIVIL CODE. It's my understanding that ILL follows the FDCPA and UCC, but I'm not sure. The last thing is you may want to consult an attorney to make sure that we're on firm ground A ----------------------------------------------------- LETTER for OUT OF SOL DEBT ( CAN SEND YOU A WORD VERSION OF THIS) [Name] [Address] [City state ZIP] Certified Mail No.: _____________ [Collector] [Address] [City State ZIP] [Phone number] [Date] Re; Letter, inquiry, etc., dated ____: your file # _____ To whom it may concern: This is not a refusal to pay, nor is it an acknowledgement of the debt, but a notice that I do not believe I owe what you say I owe and that your claim is disputed in its entirety. I am well aware of my rights under the Fair Debt Collection Practices Act (FDCPA) and my state laws so I hope to save both of us a great deal of time by letting you know that not only do I dispute the validity of this debt, I have also checked with my State Attorney General and verified that the Statute of Limitations for enforcing this type of debt through the courts in (insert your state or the state in which the contract was signed) has expired. Therefore, should you decide to pursue this matter in court I intend to inform the court of my dispute of this debt and that the "statute of limitations" has expired. The Rules of Civil Procedure of my State of (State) provide a Statute Of Limitations limiting the time frame for any legal collection activities. Include the following underlined paragraphs for credit card accounts Please be advised that under the Truth in Lending Act (TILA) § 15 a credit card account is legally defined as an "open" account. The Act is in Title I of the Consumer Credit Protection Act and is implemented by the Federal Reserve Board via Regulation Z (12 C.F.R. Part 226). The Regulation has effect and force of federal law. Open-end Credit Transactions: Open-end credit includes bank and gas company credit cards, stores' revolving charge accounts, and cash- advance checking accounts. Typical features: Creditors reasonably expect the consumer to make repeated transactions. Creditors may impose finance charges on the unpaid balance. As the consumer pays the outstanding balance, the amount of credit is once again available to the consumer Under my State of ________Code #__________, (Check this to be sure! 735 Ill. Comp. Stat. 5/13-201 et seq.) the subject account has a ____5_____ year limit for filing any legal action for collection. Check your State in the individual State listings to see if it is a "cause of action"(date of first default) or "last item"(date of last mutual activity) State. Use the CORRECT "starting" date for your State The starting date of this statute of limitations being the (date of first default) (date of the last mutual activity), with the ORIGINAL CREDITOR of the subject account. Records indicate that this date on the subject account #___________ with (creditor name) is __ ___ ____. This notification is formal notice to you that any filing of such action by you, or your representatives or assigns, is therefore time-barred. Under the FDCPA, any such action, or threat of such action is a violation of the law, and grounds for fines and civil sanctions. 807. False or misleading representations A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (2) The false representation of- (A) the character, amount, or legal status of any debt; or (4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action. (5) The threat to take any action that cannot legally be taken or that is not intended to be taken. This notification to you is of applicable legal statutes, codes and laws. Other Federal and State laws may apply. Under the laws of my State, (statute # if available) continued collection activities, including reporting, verification or reinsertion of accounts. beyond their legal collection date to any consumer credit reporting agency, may be considered extortion and/or fraud and subject to criminal as well as civil prosecution. Please note that proof of your receipt of this notice may be used by me or my legal representative in further action. I also reserve the right to forward a copy of this letter, and any other pertinent material to the _____ (CA lawyer's State) Bar Association. Please also be advised that this letter is not only a formal dispute, but a request that you cease and desist any and all collection activities. I consider any contact not in accordance with the Fair Debt Collection Practices Act a serious violation of the law and will immediately report any violations to my State Attorney General, to the Federal Trade Commission and, if necessary, take whatever legal action is necessary to protect myself. Be advised that I tape record all phone calls and violations of the FDCPA can result in you or your company being personally fined up to $1,000 per incident. Your receipt of this letter will be considered as having granted consent to the taping of any and all telephone calls to me at my home or business by you or your agents or assigns Regards, (Sign above name) [Print or type name]
Ok, I do believe that this was one of those pre-approved credit card offers that gets sent to your house. I was away at school, my mother filled it out. When I came home she had the card and they were calling about no payments. When I tried to call to cancel the card, I didn't know the identifying information so they wouldnt' let me do anything. I put a fraud alert on my CR's and went on with life. When I started understanding the need for credit, I disputed those cards (yes more than one). They were all subsequently dropped from my CR. I do not have any dates to give, I simply don't know. Roughly it was 1998-2000. I doubt if any payments were made after 2000. Honestly I couldn't even argue SOL at the time because I didn't know what the heck they were talking about and didn't have any date to go by. Now my Illinois General Assembly research is saying five years if it is an unwritten contract and ten years if it isnt. A lot of judges are ruling that it isn't. Can I file a motion to dismiss based on SOL?
Yes, you can file based on SOLC. The fact is that TILA recognizes the credit card as an open account not a contract. The fact that this happened in the 1998-2000 time frame means that you are past the 5 year limit. Tell the CA/Lawyer that the SOLC for ILL has passed and that you will use this as an affirmative defense. I would also ask them to prove that this debt belongs to you. Demand that they: 1. Send you a copy of the signed application 2. Statement show your signature for the purchases 3. Name of the OC 4. How they came up with the amount they say you owe 5. Prove to you that the SOLC has not passed 6. Provide you with the name and address of their Registered Agent 7. Provide you with proof that they are authorized to collect the debt I would do this in a different letter that the one that I provided above. (2nd DV letter). I would also amend the motion to dismiss on the basis that this is a time barred debt to include the fact that they failed to provide validation (1-7 above) as ordered by the court. A
Might be able to argue five years. â??The test for whether a contract is written under the statute of limitations in Illinois is not whether the contract meets the requirements of the Statute of Frauds, but whether all essential terms of the contract, including the identity of the parties, are in writing and can be ascertained from the written instrument itself.â? Brown v. Goodman, supra, 147 Ill. App. 3d at 940-41 (emphasis added). 11. If any essential element of the contract is omitted from the writing, â??â??then the contract must be treated as oral for purposes of the statute 36 of limitations.â??â? Armstrong v. Guigler, 174 Ill. 2d 281, 288, 673 N.E.2d 290, 295 (1996); accord, Toth v. Mansell, 207 Ill. App. 3d 665, 669, 566 N.E.2d 730, 733 (1st Dist. 1990); Schmidt v. Niedert, 45 Ill. App. 3d 9, 13, 358 N.E.2d 1305 (1st Dist. 1976). 12. â??Illinois courts give a strict interpretation to the meaning of a written contract within the statute of limitations. For statute of limitation purposes, a contract is considered to be written if all the essential terms of the contract are in writing and are ascertainable from the instrument itself.â? Brown, 147 Ill. App. 3d at 939. If the agreement necessitates resort to parol testimony to make it complete, the law is that in applying the statute of limitations, it must be treated as an oral contract. Toth, 207 Ill. App. 3d at 671. 13. â??The law is clear in Illinois that to constitute a written contract under the statute of limitations, the written instrument itself must completely identify the parties to the contract.â? Brown, 147 Ill. App. 3d at 940 (emphasis added); accord, Railway Passenger & Freight Conductorsâ?? Mutual Aid & Benefit Association v. Loomis, 142 Ill. 560, 32 N.E. 424 (1892); Munsterman, 106 Ill. App. 3d at 238-39; Pratl v. Hawthorn-Mellody Farms Dairy, Inc., 53 Ill. App. 3d 344, 347, 368 N.E.2d 767, 770 (1st Dist. 1977); Matzer v. Florsheim Shoe Co., 132 Ill. App. 2d 470, 472, 270 N.E.2d 75 (1st Dist. 1971); Wielander v. Henich, 64 Ill. App. 2d 228, 231-32, 211 N.E.2d 775, 776 (1st Dist. 1965). 14. â??[T]he issue is not whether the identity of [the parties] can be readily ascertainable from subsequent writings, the issue is whether the identity of [the parties] can be readily ascertainedâ? from the alleged written contract â??so as to avoid the resort to parol evidence.â? Brown, 147 Ill. App. 3d at 940. 15. If testimony is necessary to establish any of these elements, the contract is treated as oral, and subject to the five-year statute
Many times you cannot figure out if your debt is a contract, open end or revolving. --Oral Contract: You've agreed to pay money back via a verbal agreement. This can include your word, his word and a witness. These are harder to prove but are recognized as "oral contract". --Written Contract: You have signed a contract or document promising to repay a loan or debt. Example is medical bills, cell phone bill, closed end signature loan or some secured loans like auto. --Promissory Note: It is like a contract loan except it contains more information about payback. Such information can be interest, principal, late fees etc. A home loan or HELOC can be a promissory note. --Open Ended Accounts: Just what it says, "open end" ie: a credit card debt or revolving line of credit. Check this out, Here's the Illinois case on written contact on credit card that was settled. The plaintiff sued a junk debt purchaser called Credigy which pursued the plaintiff for credit card debt which was older than 5 years. Plaintiff sued Credigy in District court and Credigy settled the case with prejudice. The Federal Court never issued a ruling on it. Rawson v Credigy FDCPA Suit Also look at (735 ILCS 5/13-205).
