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Discussion in 'Credit Talk' started by lwg8tr, Jun 13, 2001.
Thanks in advance
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Well, I'm no legal expert, but I do have some ideas based on experience.
I hate those pre-trial mediations. Those guys turn them into a "truth-or-consequences" show real quick every time I get into them. I come out feeling like I am some kind of serial rapist. So I normally try to just ignore them and let it happen.
In this case, I don't think I want to advise you to do that.
But I also think that if I were in your position, I would not want to let them in on anything I knew at all. I would want them to make their mistakes. I'd want to keep my 5th amendment rights to not say anything that might tend to incriminate me close by my side. While I know full well that we are not talking about a criminal trial here, I'd plead the 5th anyway if I had to just to screw up the process to the greatest extent possible.
The reason I'd do whatever to keep from divulging what I know or what I plan to do about it is that I want them up in front of a judge or better yet a jury where their stupidity would become a matter of court record. Then I would get up in court and let the bomb drop on them. Once it exploded in their faces and it's all over, then I'd want to come back on them and hit them for filing a false and frivolous lawsuit on me. Now then, since I'm not a lawyer, I don't know if I could actually come back and sue them or not. I'd have to talk to an attorney to see if I could do that or not and I'd want an attorney to do the sueing on a fee contingency basis. But it really wouldn't make any difference if I could or could not sue later, I'd do it that way just to see them eating a whole plate full of crow right there in front of a whole bunch of people.
The question is, when did they start the suit? If they started the suit within the SOL, it doesn't mattter that the SOL has expired since. In addition, they could argue that the SOL was tolled for some reason. Moreover, the SOL is a defense, which MUST be asserted or its waived -- and if you wait to assert it, the defense could be disallowed. And forget about any claim for a frivolous suit -- that's just not going anywhere.
Ignoring this and not showing up would be a very risky move, in my view. You'd better get in there and settle or fight right away, lest you end up with a default judgment against you which would be a lot harder to get rid of than a suit brought outside the SOL.
Squawk made both of the points I wanted to make.
First, go to the courthouse and ask to see the file. Make sure you have the case number (in the upper right corner). Florida allows you to see your file. Find out when the case was filed and see if it was within the four year SOL. The key here is filed, not when you got served.
Then, if it was not filed in time, you have to raise the SOL as a defense.
The attorney is not stupid - he may just be trying to win assuming you know nothing. But you have to raise the defense, no one else will do it for you. And you have to raise it now. Don't wait for trial. There are time limits on these things, I think. Although, SOL may be one of those defenses that can be raised any time.
They filed the suit June 6, of this year. Tolling in Florida from reading the statutes is mainly based on out of state residency and concerted effort to hide your wareabouts. I have lived at the same addres for 6 years, I am listed in the telephone book and have the same address when I opened the account. I disagree with your assestment of SOL being a defense, yes technically it is a defense but statuatory time limits, time and time again are upheld, otherwise whats the point of the statute. Yes, things could go wrong but with them being 1 year late beyond the SOL, I feel pretty confident. They decide to let some paralegal waste my time with a slam dunk loser and I will countersue for my time off of work.
My point is that you have to raise the issue. The Judge is not looking for it and the other side will not bring it up.
These hearings move very quickly. The only issues the Judge really considers are the ones put in front of her. She will not be looking for something else.
We used to call these hearings Cattle calls. Its like hearding 50- 100 cattle. You do it as fast and efficiently as possible.
Perhaps youâ??re missing the point I believe Squawk and Tom were pointing to, which is (not expressly aiming to speak for them). While the SOL is an absolute bar against a creditor prevailing, it is a defense that must be raised (brought before the courtâ??s attention) or it could be deemed waived by default. For instance in some states the failure to demur (or quash) before a first appearance, precludes the demur (or motion to quash) form being filed following an answer.
(FYI: A demur is essentially a motion stating that even if everything in the complaint is true, no cause of action is stated based on certain grounds â?? perhaps even SOL expiration. A motion to quash is a pleading praying for service of the summons to be disallowed, removed from issues of adjudication.)
In essence, if you fail to object (perhaps by raising the SOL defense) certain rights could be lost. Iâ??d suggest spending a little time with competent counsel to help with finer points, and/or to clarify your rights and remedies; even confirm them.
Anthony is right on target.
The timing of the suit made me suspicious, and I did a quick pull of Florda's statute of limitations. I may have found what you are missing. The following is from section 95.11 of the Florida Statutes:
"Actions other than for recovery of real property shall be commenced as follows:
(1) Within twenty years.--An action on a judgment or decree of a court of record in this state.
(2) Within five years.--
(a) An action on a judgment or decree of any court, not of record, of this state or any court of the United States, any other state or territory in the United States, or a foreign country.
(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument.
(c) An action to foreclose a mortgage."
Are actions on credit cars not considered actions on a written contract on Florida?? I'll bet that the statute I just cited is what the lawyer will hang his hat on.
What state does the credit card company do business in? They have the right to pick whichever is longer, the state you live in or their own as far as which statute of limitations they pick.
You guys have given out the url to my statute of limitations page a lot on this forum (thanks for the compliment) , but here it is again:
Specifically, you may want to look at what it says at the bottom of that page regarding which state's statutes to use, but I will quote it here anyways.
So you may want some more informatiion about this stuff before going to court. Hope this is helpful.....
Oops, it says right there that bank location is irrelevant, so if you haven't moved, you should be ok. Now you have to worry about the "under seal nonsense".
If you continue on with the statute you will see this
3) WITHIN FOUR YEARS.--
(k) A legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts.
The key in why the SOL is 4 years not 5, is that a written instrument is not an unsecured open account but a written contract like a auto loan or mortgage. The last line is the kicker "store accounts" clearly a charge account. Don't mean to be argumentative but 3 web sites that show SOL also agree with me. I suspect a lower tier ambulance chaser trying to troll around the post-SOL debt pool trying to intimidate people into paying anything. I have been through this before with some sweaty paralegal fumbling around in small claims court not expecting a fight. I cleaned his clock that day, and I will stomp this leech also. Of course I will invoke the SOL clause as would most people with half a brain.
Without aiming to be argumentative either, again youâ??re mistaken. A credit card account is not a verbal agreement, one WITHOUT written terms. When one initiates a credit card account a contract was entered into, a written contract to be litigated as one.
Frankly if the basis of your court defense/argument is going to be stale SOL, that appears to be where youâ??re at; S-O-L! A credit card debt is classified as is a written contract, NOT open account. An open account is more akin to the arrangement one has with their gardener, x-amount for lawn maintenance per month; with the occasional extra charge for whacking weeds or pruning petunias. In short, the court isnâ??t likely to buy the open account angle, sorry to say.
I can see that I did not make myself clear at all.
What I said applied to the pre-trial stuff only. Discovery and all that sort of thing.
Squawk is absolutely correct. Don't miss that court hearing at all. Be there and put up your SOL defense. You might very well be advised to seek qualified legal assistance if you are in a position to afford it at all. It should prove to be money well spent.
If they do go for discovery or any other pre-trial stuff, then for heavens sakes don't try to go in alone. Take an attorney with you even if your attorney tells you that there isn't much he is going to be able to help you with in court.
But take him to discovery or whatever pre-trial things are held, if any. In discovery, those professionals will literally eat you alive if you don't have some help.
Thanks for pointing out what you did.
It woke me up to my failure to clarify.properly.
Although you mentioned at the bottom of your post the FACT that he should seek advice of competent counsel, I wanted to jump in and point out that your excellent post most assuredly emphasized how important your last statement actually is and even more, exactly why assistance of counsel is necessary in his case.
A credit card account I reinterate is not a written instument, I never said that it was'nt a written contract. You are reading too much into the statute. All contracts are not written instruments, as you stated in your response oral contracts are not. It has been upheld in the State of Florida that section 95.11 section 2 is JUST for written instruments i.e. installment agreements, mortgages, checks, promissory notes, things with fixed agreements to deliver goods at a pre-determined price and payment schedule. I think you are confused, just because the account is bound by some terms and you sign agreement for payment on the account, that does'nt make it a applicable to the 5 year rule. This is because it does'nt meet the defintion of "written instrument". If this were a store charge account i.e. Sears Card this would'nt even be an argument. Section 4 clearly specifies "store accounts". According to your narrow defnition then section 5 would apply .
5) WITHIN ONE YEAR.--
(a) An action for specific performance of a contract.
Anthony you even posted someone a while back
See the section 2a..hmm clearly a credit card.
See, I have asserted this before on advice of an attorney, and it was upheld by the judge and not objected to by the mouth-breathing attorney.
See http://www.cardreport.com/laws/statute-of-limitations.html.. I see you are starting a website for credit repair. Stop being so argumentative and know your facts, nobody likes a contrarian. You are wrong on this.
A â??contrarian?â? Well gee itâ??s a pity you feel that way, whereas if youâ??re so confident of the answer; why post for advice in the first place? After all, Iâ??m only going on 20 years of asset recovery experience so what do I know? Albeit I suppose the same can be applied to anyone.
For instance, what makes you think our website (CreditDefenses.com) will have anything to do with â??credit repair?â? It doesnâ??t! And the cite you post relates to another state, not Florida.
In any case, good luck with asserting your claim (and I mean that sincerely). My aim was clearly not to be argumentative only informative based on practical experience, that is, having dealt with literally thousands of recovery cases. Thereon is where I based my comments not on flat interpretations of law, nor conjecture on advice of counsel. But here again, what do I know..? Iâ??m just a simple contrarian. [;-)
File Not Found Error 404....
and the damn spy camera to boot!!!!! Thanks
Unnnnnnh Dave, take the dots off the end of it...
breeze, who is not a techie <chuckle>
I will do it for you <giggle>