I am looking for a good post or link to the state listings on SOL. I am looking for the info on Illinois. I am also looking for when does this time frame start? From the first time the account went deliquent? Or when the debt was charged off by OC. If an acct is purchased by a CA the original SOL still applies correct?
State Oral Agreements Written Contracts Promissory Notes Open Accounts Illinois 5 10 6 5 SOL will start either from DLP or DLA.
So for credit cards in Illinois it is 5 years and from date last paid? What is DLA? Does it matter if the card was opened in the late 90's in another state originally? Or is it just place of last residence.
Where you are currently living. DLA, date of last activity. Doesnt matter when the card was opened, if payments were made, 5 years from that time or 5 years from the date of last activity. Unless the CA can provide the contract signed by you, then it goes to a written contract with a 10 year stat.
How does producing the original agreement change the classification of a credit card debt from open account to written contract?
Some CAs and JDBs claim it does, if it is to their advantage to do so to allow them to sue. It may or may not be true. Since state laws define statutes of limitations, state law defines what a written contract is for purposes of SOL, and what open accounts (CC debt) are for purposes of SOL. Some states may specifically classified CC debt as an open account NOT under the SOL for a written contract, and there may also be case law that clarifies, or muddies, this in particular states. You would have to determine this for your particular state. Here is one example of the sort of reasoning that has been applied to conclude that an open account is NOT a written contract: www.lsnv.org/Open_Account_Statute_Limitations.doc It tends to hinge on the characteristics of a written contract as an agreement between the two parties where all details have been fixed at the time of the agreement, which is then signed by both parties to indicate their agreement to it. In some states and courts, an open account would not fit this definition, or as here, a state legislature has specifically made a distinction between open accounts and written contracts from which the courts have inferred that they must be different entities, hence open accounts even opened with signed agreements are NOT treated as "written contracts". Alternatively, the fact that CC agreements include terms that allow the lender to unilaterally change their terms in the future with no signing of that contract change by the consumer that could be used to clearly show in one document even what the current contract agreed to was, has been used by some courts to conclude that CC agreements on open accounts are not "written contracts" within the meaning of statutes of limitations. The commonly used unilaterally mailed changes in terms, having no indication of who they had been sent to, whether they were received, whether they had been agreed to, or if they went into effect, might not form a "written contract" if there was no way a court could determine any of those by reviewing only the "document". By contrast, a conventional written contract would contain all agreed terms, and be signed and dated by both parties, in effect standing on its own. What is implied is that there is a lesser standard of documenting the exact terms being agreed to, and that they were agreed to, with an open account where charges and changes of terms may be on-going and added piece-meal, so the onus is on the creditor, or his assigns, to enforce their rights promptly if they intend to do so. Part of the justification behind statute of limitations is that attempting to collect on excessively old alleged debts becomes unfair to the alleged debtor due to the possible loss of accurate records (statements, cancelled checks, bank records) over time. It is rather the statutory flip side to the common law concept of "account stated". Be aware that some debt collectors may throw this at you to claim a longer SOL than is applicable. They can only gain if you buy it and settle on a debt that is really past SOL, so they figure they have nothing to lose for claiming "written contract" even if it's not if they know the debt is past SOL as an open account. At least that is how I look at it. I am NOT an attorney.
If argued in court, the CA cannot provide the written contract, the judge will toss it out because there is no actual proof it is yours. Most CA's do not have the proper paperwork to prove the debt is yours, they just pretend to have it all to scare you. If the OC cannot provide the signed contract in most cases, they cannot just bump it to whatever is the longest date? Each state is different, but f no one has the original written contract then there is no way they can prove you signed it and it is yours. Correct? If that were the case all of the OC's and CA's would lose every contract and move the date down. In my state I am finding that a CC is not a written contract, it is an open contract and is subject to 4 years SOL.
