Please... I need to hear from those of you who won an suit where SOL was involved? I need to know how you did it and where I go from here and if people regularly lose these suits. THANKS!! ~WOK
What do you mean? I think this was discussed on your other thread. If it's past the Statute of Limitations, there's nothing to lose. It's past the SOL and they can't collect. You show up, tell the judge it's past the SOL, and he'll dismiss. If you have paperwork, that's even better. If they think it's not out of SOL, they're going to have to prove that you've made payments since the SOL date.
Hi Hedwig! Does this mean (always learning here) that if you make a payment after the SOL, it invalidates the SOL? Shanyl
wornout, If the statutes of limitations on your credit card debt was beyond the statute of limitations in Arizona before you even moved to Florida then Florida per statute will recognize AZ's SOL. So you received a summons and a complaint...did you answer it? If so it must be filed with the court and served on your opponent within the time stated in the summons. Just because it is beyond the SOL does not mean that they can't continue collection activity....it just means they can't use a "judgment" which is a legal instrument to accomplish it. So it is important that you answer the summons and complaint timely and that you show up in court. Your husband sounds like a complete ##$$$@@@ if he is threatening to "paper divorce" you over a cc debt. SOL suits are won all the time....they are the easiest cases to win. All you have to state in your answer is the complaint is time-barred by Arizona statute XXX which is where you resided at the time the SOL expired. clc
Yes, making a payment resets the SOL. In many cases, PROMISING to make a payment resets the SOL. That's why we tell people never to talk to CAs. They'll claim you made a payment agreement.
Re: Re: *PLEASE* Anyone actually win on SOL Thanks Hedwig! More food to tuck away for a brain snack! Shanyl
Re: Re: *PLEASE* Anyone actually win on SOL I like that expression! I may have to use it myself sometime.
Re: Re: *PLEASE* Anyone actually win on SOL I believe that the law says that the only way to reset the SOL is to bring the account current with the creditor restoring the account to good standing status. Do you know of any law or court ruling to refute that?
Re: Re: *PLEASE* Anyone actually win on SOL Sorry if I sounded repetative...that wasn't my intent. I just feel like looking around at all the information, it seems that they will fight pretty hard to say it is a "written agreement" and I am NOT out of the statute of limitations for that. I also don't have a copy of the terms of service (after a few moves seems that some of my paperwork is MIA). And I wonder if any terms of service state that it is NOT considered an open account. It is MBNA...if anyone has any info on that it would be appreciated. I have an appointment with an attorney on Wednesday. I spoke with him a bit on the phone and he says that he is first going to send a service to the court to follow AZ procedures and then he will go forward and fight on the SOL. He said something that confused me though. He said that they couldn't go on a "written agreement" argument because I opened the account in 1995 and he says it goes by the day the instrument was signed and not when it fell delinquent. I can't specifically find anything that refutes that information, but other sites have suggested that it goes from the date of delinquency. This guy did seem to know his stuff when I was talking with him though (according to the bar association he used to be a circuit court judge). He stated most of what you all said and stated alot of the statutes I found on line and seemed to have a pretty clear plan of action. He is willing to take the case for about $500 and anything above that he said we will work out in a payment arrangement but he said that it would only incur other charges if it actually went to trial. I guess I am afraid of going this alone. I consider myself a reasonably intelligent person (I have 2 BAs...but I suppose I don't really need to prove anything...just reminding myself that at one time I wasn't an idiot) but I get very flustered when it comes to leagal jargon and I feel very intimidated by attornies. I guess I seem like such a spaz because I am really scared. My husband and I are closing on a house next week and we have 2 paid off cars and we are looking at living tight with the new house payment (not too tight)...plus we have some $$ in savings because my job doesn't have sick pay and I am paranoid about going into debt further so I am really afraid they will go after our pay or oour assets. We are a very modest family and can't afford to live on less. Thank you all for you wonderful responses. You all have been of tremendous help! ~WOK PS~ My husband isn't as much of an a@@ as it appears in writing. Its just that he has pretty good credit and we can't afford for both of us to have really messed up credit and he is worried about what will happen to the family if we have no one's credit to fall back on. PPS~ I didn't have a chance to answer the complaint yet as I was just served notice.
Hedwig- I guess my concern is that it seems that the ATTY will try to argue that it is a written agreement and not an open account and I am NOT out of the SOL for that (to my knowlege- the attorney I spoke with says differently and I will discuss that with him when I see him on Wednesday). I am guess I am just worried that they will use that arguement and other than one case, I can't find anything that seems to "prove" for certain that it is not a written agreement. I am not good with legal-eze and so maybe I am reading things wrong. Perhaps I should have better stated my question as to how one would go about proving that it is an open account and not a written agreement. Thanks for your response though. The fact that you all seem to think that it is a "no-brainer" makes me feel better. ~WOK
Re: Re: *PLEASE* Anyone actually win on SOL You and your attorney need to be ready and able to fight it either way. Is it a "no brainer" or isn't it? That is a very pertinent question which may need resolution. First of all, what was it for? If it was for some expensive item that in the normal course of business is almost never done on a handshake or verbal agreement then it might be considered to have been a written contract whether or not a written contract actually existed. If it was a credit card account then it was a unilateral contract, often if not usually a contract of adhesion and is always considered to be an open ended account. You say in an earlier post that it is an MBNA account and if a card was issued to you then it is an open ended account. MBNA is a bank and also finances larger ticket items on contract and on those kinds of contracts does not or may not issue a credit card. If it is claimed by MBNA that a contract does exist then they must produce a contract in court. It will be a copy of the original contract and they will claim that the copy is a true and genuine copy of the original which you or your attorney may want to specifically refute or attempt to refute or even actively challenge. That may be successful and it may not, depending on the judge but if the argument that without the physical presence of both articles in the courtroom you have no way to determine whether or not they are identically the same and since you have no way to determine the authenticity of the copy you specifically deny that it is a true and correct copy of the original. Arizona judgment law (SOL) is to be found at ARS 12-543 through ARS 12-550 and written contract for debt is 6 years while Florida judgment law (SOL) is to be found at Section 95.11(2)(b) though Section 95.11(3)(p) and for written contracts (sale of goods) is 4 years while written contracts in general are 5 years. So MBNA might well try to invoke the longer Arizona Statute and in order to prevent that you will need to keep it under Florida law if at all possible even though the statute of limitations on the judgment itself will be 20 years which is much longer than that allowed under Arizona Law. There are some specific questions that you should demand that your attorney ask the plaintiff in a BRIEF IN OPPOSITION TO APPLICATION FOR SUMMARY JUDGMENT. 1. Facts in dispute and triable issues: 2. Defendant seeks to determine whether bank has authorization to sue consumers in {name of state} courts. 3. Defendant Demands to know whether {bank's name's} charter authorizes {bank} to engage in consumer lending. 4. Defendant demands to know whether {defendant's name} has a contract with {bank} today. 5. Defendant demands to know whether {bank} has established that defendant owes {bank} money today as verified by signature and date of a duly authorized representative of {bank} on an account and general ledger statement referencing defendant by name. Defendant demands strict proof of all enumerated items above fully verified and attested to by competent fact witness. Signed Regardless of your attorney's statement that the Statute of Limitations begins to run at the moment the contract was signed, I would want to spend at least half a day or more at your local law library researching that issue because if that is true then that is contrary to any theory I have ever heard of. Arizona's 12-548 plainly states: Contract in writing for debt; six year limitation An action for debt where indebtedness is evidenced by or founded upon a contract in writing executed within the state shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward. A cause for action does not accrue before the consumer/debtor defaults and the lender has time to determine that the debtor has defaulted. I think that it would be safe to say that the earliest possible date would be the date that the debtor failed to make the last payment that fell due and the latest possible date would be the date that the creditor declared the debtor to be in default. Moving to Florida's statutes we find that things are just a bit different although not much. In Florida law we find that the last element constituting a cause of action on an obligation founded on a negotiable instrument which is payable on demand or contains no specific due date is often the first written demand for payment. (Section 95.031(1).) Any contract which contains provisions to shorten the statutory time limitation is generally void. (Section 95.03.) An acknowledgment of, or promise to pay, a debt barred by a statute of limitations must be in writing and signed by the person sought to be charged. (Section 95.04.) When a cause of action accrues is a critical issue and may be different on a case by case basis. So which state's statutes are the actual statutes that will apply? Generally speaking it is usually the statutes of the state in which the action is brought but obviously cannot be the date upon which the contract was first entered into.
Re: Re: *PLEASE* Anyone actually win on SOL Florida (like many States) has a "borrowing" statute. ( Posted on the Fl. page of my website). If the account defaulted in a shorter SOL State, that State's SOL applies. A consumer open end credit card account can NOT be "re-aged" with a payment, ( much less the promise of a payment), since it is NOT a "contract in writing" or an "open" merchant account as described in State UCC statutes. The ONLY way it can be legally "re-aged" is with a new written contract, in accordance with State rules on such contracts.
Re: Re: *PLEASE* Anyone actually wi Oh Ok, now I get it. I was wondering why I get these notices from CA's saying I didn't keep my payment arraingements when I didn't make payment arraingements. I never even speak to these freaks on the phone and they are saying I made pmt arraingements with them. Now I understand the deal with that. Thanks for this info. From now on I'll write them and tell them what pmt arraingements? Jane
Re: Re: Re: *PLEASE* Anyone actuall Hey you know if my H had really good credit and I didn't (we both have terible credit) I might get a "paper divorce" as well. But, if you live in a Community Property State it doesn't matter about any "paper divorce" because you are both equally responsible for any and all debts incurred during your marriage. A "paper divorce" doesnt change that. Jane
Re: Re: Re: *PLEASE* Anyone actually win on SOL Why Chat, can you tell us when UCC applies to consumer credit matters and when it does not? I know that in some states UCC specifically applies to motor vehicle purchase contracts but not in all states.
Re: Re: Re: *PLEASE* Anyone actually win on SOL It was a credit card opened in 1995 and had its last payment in 1999. To my further research it seems that there is strong federal proof that it would be considered an open account. As far as the atty not knowing what he is talking about...that was the only thing he said that I took issue with and he did say that he needed to research it further. Everything else seemed right on the money. I know from my previous dealings with attornies that you still need to do a lot of your own work and research...but they are worth it because of their ability to argue the case effectively in court (something I'm afraid I won't be able to do). I have my first appt on Wednesday and of course if he doesn't seem up to the task, I won't retain him. Also...my husband and I do live in a community property state, but the bedt was incurred and went negative long before we ever met. I'm not crazy about a paper divorce...but if it really came down to it...at least 1 of us needs credit. Thank you all!! ~WOK
Re: Re: Re: Re: *PLEASE* Anyone actually win on SOL The UCC applies to sales contracts for any "goods" in ALL States. The UCC has been adopted by ALL States, however they have each made various changes when adopting it into their own State statutes. Motor vehicles ARE covered by the UCC statutes in all States, however in SOME States their individual RISA and MV-RISA statutes are STRICTER than their UCC statutes. I DO want to repeat, the idea that "paying" or "promising to pay" a CA, restarts the SOL is a MYTH perpetrated by the collection agency industry and unfortunately repeated in many"consumer" forums. If it is a CONSUMER account, and it is a CREDIT CARD open-end account, it is NOT subject to ANY of the "re-aging" statutes in any State law for CONTRACTS, or to ANY of the State's UCC laws for "open" accounts, as those UCC laws only refer to ongoing ACTIVE open accounts, and NOT to written off, charged off, sold, or assigned defaulted accounts.
Re: Re: Re: Re: Re: *PLEASE* Anyone actually win on SOL If UCC had any validity or application to consumer law then Slenk vs Transworld Systems and multitudes of other such cases would never have seen the inside of a courtroom.
