Colorado SOL Dispute

cap1sucks · Jan 2, 2009

susanna said: ↑

I looked up the Colorado SOL and for open-ended accounts it says 3 years. I always assumed it was 3 years. Now my husband who's been sued by 2 CA's which he thought were past the SOL was told the SOL is 6 years by several lawyers in CO. How can that be? They're saying these are "written" contracts and not open-ended.

Susanna
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Believe the lawyers. They know what they are talking about. Stop and think about it. It may be open ended but there is a written agreement involved every time a credit card is issued. Lawyers and judges alike all agree that the SOL for written agreements applies to credit card litigation.

Wylie · Feb 16, 2009

What happen

colosol3yr said: ↑

Susanna, I found a post on another board (sorry CreditNet Loyalists), that told the story of a Defendant arguing the 3 yr SOL in Colorado, to the point where the OC backed down. http forum.freeadvice.com/debt-collections-84/being-sued-older-credit-card-debt-389568-p3.html#post1829092]Being sued on older credit card debt - Page 3[/url]. And I thank him greatly because I used much of his language in drafting my own reply to a Colo County Court Summons and Complaint. Hopefully I will have the same result as he did. In the mean time I am trying to refine my draft language prior to filling Pro se in court. Any thoughts from the legal types and others with information is greatly appreciated. Cheers, colosol3yr

Defendant answers the complaint as follows:
Plaintiff does not have a valid claim of debt against Defendant because Coloradoâ??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 debts 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. Plaintiffsâ?? complaint alleges that Defendant failed to pay the balance due on a credit card

4. Plaintiff provided statements to Defendant, dated January 23 â?? Feb 23, 2004, and Feb 23 â?? 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 Plaintiffâ??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 Plaintiffâ??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 Â§ 103:
Â§ 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 creditorâ??s terms and conditions relate to an open-end agreement under Federal Truth in Lending Act 15 Â§ 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 Â§ 103 TILAâ??s definition of credit cards as â??Open Accountsâ? precludes the consideration of credit cards as â??Liquidated debt or an unliquidated, determinable amountâ? because the â??amount dueâ? on an open account is not referenced in any written contract or agreement, nor is the Plaintiffâ??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 â??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 â??Liquidated or unliquidated determinable debt.â?

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 "â?¦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.
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Hello....

What happened with your case? Why would some lawyers state the SOL is 6 years?

I have not been served on a debt that is 5 1/2 years old now, but it is only a matter of time before they do. Seems they have an urgency now that it is almost 6 years.

Did I understand you to state that using this afirmative defense....the defendant won and did not have to pay the old debt?

Thanks

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