How would you guys interpret this information? (735 ILCS 5/13-205) Sec. 13-205. Five year limitation. Except as provided in Section 2-725 of the "Uniform Commercial Code", approved July 31, 1961, as amended, and Section 11-13 of "The Illinois Public Aid Code", approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued. (Source: P.A. 82-280.) (735 ILCS 5/13-206) Sec. 13-206. Ten year limitation. Except as provided in Section 2-725 of the "Uniform Commercial Code", actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accrued; but if any payment or new promise to pay has been made, in writing, on any bond, note, bill, lease, contract, or other written evidence of indebtedness, within or after the period of 10 years, then an action may be commenced thereon at any time within 10 years after the time of such payment or promise to pay. For purposes of this Section, with regard to promissory notes dated on or after the effective date of this amendatory Act of 1997, a cause of action on a promissory note payable at a definite date accrues on the due date or date stated in the promissory note or the date upon which the promissory note is accelerated. With respect to a demand promissory note dated on or after the effective date of this amendatory Act of 1997, if a demand for payment is made to the maker of the demand promissory note, an action to enforce the obligation of a party to pay the demand promissory note must be commenced within 10 years after the demand. An action to enforce a demand promissory note is barred if neither principal nor interest on the demand promissory note has been paid for a continuous period of 10 years and no demand for payment has been made to the maker during that period. (Source: P.A. 90-451, eff. 1-1-98.) I interpret this to mean several things: 1) The SOL for anything unwritten (contracts, etc) is 5 years. 2) The SOL for anything in writing (contracts, bonds, promissory notes, leases, bills) is 10 years. 3) Any payment or promise to pay, in writing within or outside of the 10 SOL, then the SOL can be restarted from that date. Does anyone have any feedback for me on these IL statutes? Am I wrong? Thanks for any help in advance, A
You are correct to an extent, however, if you are referring to credit cards or store revolving charge accounts or any other open-ended such accounts - they may be "in writing" but they do not fulfil the stautory requrement for a "written contract". The physical act of signing an AGREEMENT does not make it a legal contract in writing. It must fulfil ALL the other statutory requireents contained in State and Federal laws. In addition, consumer accounts for goods and services have additional protective provisions that remove them entirely from any possible effects of these statutes that would serve to contravene State and Federal consumer protection laws. This also negates the "re-aging" of any open-ended consumer account by virte of making a paymen on it.
Thanks for your reply WhyChat. What this is in reference to is a utility bill that has gone to collections. They always refer to them on your credit reports as an "open account". Is that what this is for. It is listed as date opened (DOLA)3/1997. So I was wondering if I could make the assumption that this was actually an open account, so that according to the IL statute, this would be past the SOL for IL (even though now I live in PA) and if I did get sued, my defense would be that the SOL is expired. However, every place that I seem to find state info says that the SOL is 6 years, which is why I went and found the actual statute to ensure its accuracy. Any comments? The amount is around $800 so I don't necessarily want to "wake a sleeping giant". thanks for any input in advance, A
The "open" on the account does not refer to open-ended, it means "unpaid" Utility bills, as far as I know. can not be sued on outside of their service area. It has to do wth someone having "standing" to sue. If you returned to Ill, it is possible you could be sued, as your time in Pa. would have tolled the SOL,but I doubtit.
WhyChat, Thanks for the interesting information. I was in school there and am originally from PA so I doubt that I would ever move back to the state. This was my worry if I were to send a validation letter. They could threaten to sue, but they would have no grounds anymore, due to the SOL being expired (5 years), correct? Thanks again for your response and clarification, A
No, incorrect. They can sue you, it would be your responsibility to show up and claim that your defense is that the actionable item is beyond the SOL. It is YOU that must raise the SOL. Many people have had judgements passed against them because they thought the SOL was an automatic defense...it is not. -Peace, Dave
1) Utilities are open accounts. 2) The Illinois SOL says nothing directly about "open accounts." It is open to judicial interpretation and how well you state your defense. You would need to convince a judge that anything you signed was not a written contract or other evidence of indebtedness as stated in 206. Did you sign anything? If not, then the SOL is 5 years because any printed agreement on the invoices, etc. fails to establish the requirments of a written contract under the Statute of Frauds. If you did sign something, then it is based upon the construction of the contract you signed. If you moved out of state, the SOL is tolled. In simple terms, it means that the even though the SOL clock starts ticking when the cause of action arises (i.e. when your late payment was due), it stops ticking when you move out of state.... unless ... some states have what is referred to as the long arm statute which negates tolling. Check with a competent attorney in Ill to be certain.
Quasar, Thank you for your reply. This is what I got from the statute about SOL and tolling: (735 ILCS 5/13-208) Sec. 13-208. Absence from State. (a) If, when the cause of action accrues against a person, he or she is out of the state, the action may be commenced within the times herein limited, after his or her coming into or return to the state; and if, after the cause of action accrues, he or she departs from and resides out of the state, the time of his or her absence is no part of the time limited for the commencement of the action. (b) For purposes of subsection (a) of this Section no person shall be considered to be out of the State or to have departed from the State or to reside outside of the State during any period when he or she is subject to the jurisdiction of the courts of this State with respect to that cause of action pursuant to Sections 2-208 and 2-209 of this Act, Section 10-301 of "The Illinois Vehicle Code", Section 5.25 of the "Business Corporation Act of 1983", or any other statute authorizing service of process which would subject that person to the jurisdiction of the courts of this State. If a person files an action in a court of this State and attempts to secure service of process upon a defendant pursuant to a statute referred to in the preceding sentence, but does not obtain service of process upon such defendant, such defendant shall not be considered to be subject to the jurisdiction of the courts of this State at the time such action was filed, for purposes of the preceding sentence of this section. This subsection (b) of Section 13-208 of this Act shall apply only to actions commenced after October 1, 1973. (Source: P.A. 83-1362.) It would appear to me from reading these statutes that the statute of limitations would still apply EVEN if I were living out of state (according to subsection "b"). In my case, it would seem to me that there time to sue has now expired since it has been longer than 5 years. They list the date of last activity as 3/97, even though I probably last paid them sometime in the fall of 1996. Also, I never signed anything for them to turn the electricity on. From what you have seen and read, would you agree with my assessment? Should I try to get the old address removed that is associated with this TL? Any thoughts would be appreciated, A
I think that you have a valid argument. I would write to them and simply say... Your action to collect on this account is barred by both ILCS 735 5/13-205 and ILCS 810 5/2-201 and that any further collection activity, including failure to remove this account from my credit report at xxx bureau will be considered as a false and deceptive practice under 15 U.S.C. 1601 et eq.
