Many JDB/CA's try to get around the SOLC by claiming that credit card debt is covered by a written contract and is not an open-ended account. Then they try to intimidate and obfuscate to get money that should not be going to them on a time barred debt. TILA is clear, 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[i/] Although, were talking about a state defined SOLC, my belief would be that Federal law would supercede state law when defining credit card debt under TILA. "What will be asked in court is: Does the exhibit establish all the elements needed to be a WRITTEN CONTRACT (WC). They have to be all on the face of the instrument and not resort to linking them together through testimony. There is case law in several states. A TERMS is not considered a WC. A SIGNED SLIP is not considered a WC. A STATEMENT is not considered a WC. In their minds, having all of these makes it one, but you must link them together and not ONE OF THEM have everything along with your signature on it to make it a written contract. Repeated transactions are expected, making it a OPEN END ACCOUNT and the TILA defines this. Each state would have to apply the lesser SOL for these types."
Yea, well, an easier way to define it as an open account is to simply convey to the judge/jury that a credit card account is an "open" account insofar as everytime you use the aforesaid account, it changes the terms; particularly, the amount to be re-paid and the duration. Works like a charm because it is common sense. Throw the TILA or UCC in front of a small claims or magistrate judge (which usually don't have a law degree) and watch them dismiss the opposition or MTD. This is ecspecially true with federal statutes. For what its worth, no, a federal statute will not supercede a state provision prescribing the statute of limitations for contracts insofar as that is purely state law. I'm not saying you're wrong . . . only than you're going about proving a point in the wrong fashion. Its easier to do than what you're suggesting but, you're on the right track.
Thanks Apex, This is a tough one because each state handles SOLC differently and there is vagueness due to what is an open account and what is a written contract. I agree with you that presenting how the terms of an open account apply to a credit card just logically point to using that definition. Written Contract seems to have very specific terms and definition that don't fit a credit card. At one time we did fill out a credit app and send it in but today it's all on line. Does that negate the notion or 'Written Contract'? I'm not sure. So I agree with you that the combination of how the card is used, that the terms get redefined each month with continued usage and how TILA views a card strongly point to a card being defined under the 'Open Account' definition when determining SOLC for a state, unless the state has a specific definition (which many don't - therefore this thread). Thanks A
