There is a thread on SOLC on another board that deals with the above. The point was made that TILA does not define Open-Account, but talks about Open-End credit extension. The two don't mean the same thing. The person making this point is very knowledgeable and has more expertise than I. When we look at the SOL's for each state it's defined simply in terms of - Written Contract OR - Open Account I've been researching this for about a month and short of sitting down with a consumer law attorney, I can't find any consensus about which definition applies. Most credit cards are applied for over the internet so nothing is signed. If this is the case, then we are left with Open Account. What does Open-Account mean? So, a CA attempts to get a judgment on a credit card debt or any other type of debt where there is no signed contract where the SOL for an Open Account has passed but the SOL for the Written Contract is still in play. How do you convince the judge that you have an affirmative defense against the judgment and that it should not be granted because the SOL for the Open Account has passed? Also, what are the legal requirement and expectations necessary to define a written contract in court? What is required to define an Open-Account? TIA A
From what I've seen, different states interpret it differently. That's why it's always important to research your state's laws thouroughly before starting any type of legal action.
A written contract can be "produced", word for word. Applying for a credit card over the internet is still a written contract, in that the terms and conditions are written out (can br read, and reproduced). Your "agreement" constitutes an electronic signature, sufficient for a written contract. However, when you speak of "Open vs Written", the difference is time and terms. A written contract is akin to a mortgage, auto loan, fixed loan, etc. An "Open Account" is a revolving type account, where the balance and payments can flucuate, as well as the interest rates.
Thanks Biz, I think that a CC account applied for over the Internet is a WRITTEN CONTRACT also. To me, it makes sense to use this definition when determining SOLC for a defaulted account. I haven't been able to find a crisp definition of OPEN ACCOUNT as to how it applies to CC's. You can talk about the attributes of an open account but I'm not sure that arguing attributes in court will work ("If it walks like a duck, quacks and swims... it's a duck"). Thanks again, A
In general, a credit card account would be an "Open Account", becuase of the "revolving" nature. Be careful in your terminology of "accounts vs. contracts", i.e. a credit card "account" can be covered by a "written contract" though it is an "Open Account". Open accounts usually are not secured by collateral, "written/closed accounts usually are. There are differences obviously in the collections of each type, and ehat must be done. You will need to look at your state's terms and definitions, they vary from state to state.
