Statute of Limitations - Colorado - Credit Cards - 3 yrs?

Discussion in 'Credit Talk' started by colosol3yr, Jan 1, 2009.

  1. colosol3yr

    colosol3yr New Member

    I solicit any help in advancing the 3 year Statute of Limitations on Credit Cards in Colorado. I found some great information on http]Being sued on older credit card debt - Page 3[/url] from going grey - who filed a reply with enough 3yr SOL rationale, that the Creditor backed off. I used his great thinking with some modifications of my own. I'd like to refine this Reply to Summons and Complaint and if I need to - argue it Pro se in front of a Jury, so that we finally establish a precendent in Colorado around 3 yrs. Let me know if anybody sees ways to enhance the language. It is longer than allowed, so I'll put part two in a reply to this post.

    Thanks colosol3yr.

    Defendant answers the complaint as follows:
    Plaintiff does not have a valid claim of debt against Defendant because Coloradoâ??s 3 year Statute of Limitations on this debt has expired over a year ago.

    Affirmative Defense
    1. The alleged debt is over 3 years old and the Statute of Limitations on this alleged debt has expired. This allege debt is time-barred under Colorado Statute 13-80-101.
    Colorado Statute 13-80-101: TITLE 13 COURTS AND COURT PROCEDURE: LIMITATION OF ACTIONS : ARTICLE 80 LIMITATIONS - PERSONAL ACTIONS: 13-80-101. General limitation of actions - three years.
    (1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within three years after the cause of action accrues, and not thereafter:
    (a) All contract actions, including personal contracts and actions under the "Uniform Commercial Code", except as otherwise provided in section 13-80-103.5;

    2. Credit card accounts are regulated under Colorado Revised Statutes Title 5, the Colorado Uniform Consumer Credit Code. Colorado's legal definition of what constitutes a credit card is found at CRS 5-2-213(1), the Colorado Uniform Consumer Credit Code, which states in whole:
    CRS 5-2-213(1): For purposes of this section, "credit card bank or financial institution" means a commercial bank, industrial bank, credit union, thrift, savings and loan association, savings bank, or other state or federally supervised institution in this state that issues credit cards and may export rates and fees pursuant to the "National Bank Act", 12 U.S.C. sec. 85, "Depository Institutions Deregulation and Monetary Control Act of 1980", 12 U.S.C. secs. 1463, 1785, and 1831d, "Federal Credit Union Act", 12 U.S.C. sec. 1757, or "Alternative Mortgage Transaction Parity Act of 1982", 12 U.S.C. secs. 3801 to 3805, and any regulations thereunder.
    Additionally, the Colorado Uniform Consumer Credit Code, CRS 5-12-107(7) states, in part:
    CRS 5-12-107(7): A commercial credit plan shall be governed exclusively by this section and shall not be subject to any other law of this state that otherwise would apply to the commercial credit plan.

    3. Plaintiffsâ?? complaint alleges that Defendant failed to pay the balance due on a credit card

    4. Plaintiff provided statements to Defendant, dated January 23 â?? Feb 23, 2004, and Feb 23 â?? Mar 23, 2004, detailing dates of overdue balance and a default on payment, which occurred prior to January 23, 2004, exceeding 4 years from date of default to date of Plaintiffâ??s filing.

    5. The clear language of CRS 13-80-101, the three year statute of limitation, states that all actions under the Uniform Consumer Credit Code are subject to a three-year statute of limitations. 13-80-101(g): "All claims under the "Uniform Consumer Credit Code", except as otherwise provided in section 13-80-103.5;"

    6. The alleged debt in Plaintiffâ??s complaint does not fall under Colorado Statute 13-80-103.5. General limitation of actions - six years.

    CRS 13-80-103.5 (1) The following actions shall be commenced within six years after the cause of action accrues, and not thereafter. (a) All actions to recover a liquidated debt or an unliquidated, determinable amount of money due to the person bringing the action, all actions for the enforcement of rights set forth in any instrument securing the payment of or evidencing any debt, and all actions of replevin to recover the possession of personal property encumbered under any instrument securing any debt; except that actions to recover pursuant to section 38-35-124.5 (3), C.R.S., shall be commenced within one year;

    "Liquidated debt" and "unliquidated, determinable amount" construed. A debt is deemed "liquidated" if the amount due is capable of ascertainment by reference to an agreement or by simple computation. A debtor's dispute of or defenses against such claim, or any setoff or counterclaim interposed, does not affect this result. Rotenberg v. Richards, 899 P.2d 365 (Colo. App. 1995); applied in Interbank Inv. v. Vail Valley Consol. Water, 12 P.3d 1224 (Colo. App. 2000).

    7. The account referenced by the Plaintiff is a credit card account, also known as an "open account" or "revolving account." The Federal Truth in Lending Act defines credit cards as "open account."

    Federal Truth In Lending Act Title 15 § 103:
    § 103. Definitions and rules of construction
    (i) The term "open end credit plan" means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time.

    8. The original creditorâ??s terms and conditions relate to an open-end agreement under Federal Truth in Lending Act 15 § 103 TILA. It is not plausible for a credit card agreement to be classified as an open-end agreement while it is active, but to be claimed to be a closed end "written" contract after default.
    See Curtis v. Counce, ___ P.3d ___ (Colo. App. No. 99CA1958, Mar. 1, 2001) "As no contract exists between Plaintiff and Defendant Fletter, we determine that the district court properly applied the three-year statute of limitations."

    9. The Federal Truth in Lending Act 15 § 103 TILAâ??s definition of credit cards as â??Open Accountsâ? precludes the consideration of credit cards as â??Liquidated debt or an unliquidated, determinable amountâ? because the â??amount dueâ? on an open account is not referenced in any written contract or agreement, nor is the Plaintiffâ??s claim for recovery of a $7,490.56 account balance, plus $6,692.37 interest, and $1,120 for attorney fees, ascertained by a â??simple computation, and if and when those detailed claims are documented by Plaintiff, the complexity of those computations will then become clear to the court.

    10. Federal Truth in Lending Act Section 226.28 of Regulation Z Describes the effect of TILA on state laws:
    As a general matter, state laws are preempted if they are inconsistent with the act and regulation, and then only to the extent of the inconsistency. A state law is inconsistent if it requires or permits creditors to make disclosures or take actions that contradict the requirements of federal law.

    11. Specific statute of limitations take precedence over general statutes of limitations. 13-80-101(g) is clearly a specific statute of limitations. See Mohawk Green Apartments v. Kramer, 709 P.2d 955 (Colo. App. 1985), citing Firstbank of North Longmont v. Banking Board, 648 P.2d 684 (1982 Colo. App.): "A statute of limitations drafted to relate to special cases controls over a general statute of limitations" (Exhibit 15) and also Glenn v. Mitchell, 71 Colo. 394, 207 P. 84 (1922); Wyatt v. Burnett, 95 Colo. 414, 36 P.2d 768 (1934), "A statute of limitations is applied only to cases clearly within its provisions." Credit Cards are not clearly within the provision of â??Liquidated or unliquidated determinable debt.â?

    (continued in a reply to this post)
  2. colosol3yr

    colosol3yr New Member

    Part 2 - Statute of Limitations - Colorado - Credit Cards - 3 yrs?

    (part two of post)

    12. CRS 13-80-103.5 is a general statute of limitation. 13-80-101 is also a general statute of limitation, however, 13-80-101(g) is a more specific statute of limitation, especially considering the plain language of the statute. A statute that deals with "liquidated or unliquidated" debt is referring to a far larger potential class of actions than a statute that deals specifically with actions limited to those based firmly in the Colorado Uniform Consumer Credit Code. Therefore, 13-80-101(g) is more specific than 13-80-103.5 so 13-80-101(g) applies. See again Mohawk Green Apartments v. Kramer, 709 P.2d 955 (Colo. App. 1985), in which the more "limited in scope" statute of limitation, which also "specifically relates to the situation here" is applicable. This is analogous.

    13. Since specific limitations control over general limitations and all actions under the Colorado Uniform Consumer Code are controlled by the specific three-year statute of limitations in 13-80-101(g), the three year statute of limitations clearly applies.

    14. Finally, in Chuchuru v. Chutchurru, 185 F 2d 62 (10th Cir. 1950) the Court ruled that statutes of limitations are "â?¦to be construed liberally. It is the settled law in Colorado that courts look with favor upon statutes of limitation and construe them liberally."

    Therefore the Statute of Limitations on this alleged debt has expired. This alleged debt is time-barred under Colorado Statute 13-80-101.

    Counterclaim of Defendant
    The Defendant asserts the following counterclaim or setoff against Capital One, TrakAmerica and Linebarger Googan Blair & Sampson. The amount of the counterclaim does not exceed the jurisdiction of the County Court.
    Filing a lawsuit on debt that appears to be time barred, without the debt collector having first determined after reasonable inquiry or having been made aware by the Defendant that the limitations period has past, is not only an unethical business practice, no matter how profitable, but a knowingly fraudulent business practice within the meaning of Fair Debt Collection Practices Act §808. By filing this complaint and continuing to pursue a claim against Plaintiff, in light of the fact that it has clearly passed the three year Statute of Limitation in the State of Colorado, is a violation of 15 U.S.C. § 1692e Count II â?? FDECPA § 1692e Claims.
    Violations of FDCPA are subject to fines of $1,000 each, plus attorney fees.

    Claim for Relief
    Defendant requests that this Court dismiss this case with prejudice, on the basis that the alleged debt is time-barred under Colorado Statute 13-80-101 and award Defendant $1,000 for violation of FDCA Rules, plus attorney fees of $1,000. If Plaintiff proceeds to trial with this action, Defendant requests additional reasonable attorney fees plus punitive damages for wasting Defendantâ??s time and causing mental anguish and deteriorated health.
    The Defendant does demand a trial by jury.
  3. cap1sucks

    cap1sucks Well-Known Member

    In the first place, despite what huge numbers of people want to believe, UCC is specifically defined as pertaining to business transactions. That's why it is called the Uniform commercial code. So none of it applies to consumer law. Businesses use credit cards too.

    TILA would apply but you aren't going to have much luck trying to get a local court judge to go along with such arguments. If you want to use TILA then take it to federal court.

    I never go to because most of the advice you get there is worth what you pay for it or less. In fact, most of it is downright false and misleading.
  4. fumon

    fumon New Member

    The Uniform Conflict of Laws Limitation Act, adopted in few states (e.g. Colorado, Washington, North Dakota, Arkansas, Oregon), provides that the limitations period should be set by the state whose substantive law will apply, except where it is “unfair” to do so. 12 U.L.L.A. 61 (Supp. 1992).

    Most credit card agreements are governed by the law of a state such as North Dakota where the statute of limitations on an open account is six years.

    Read the application agreement. It will tell you that the contract is governed by the laws of [fill in the blank] state.
  5. txatty

    txatty Member

    A lot of stats don't recognize open and stated account or sworn accounts as valid causes of action for credit card debt, only breach of contract.

    Again, I only know Texas law but for an example see the below excerpt from a summary judgment response I've used sucessfully many times:

    "An open account or account stated claim is an implied claim that arises from the course of dealing between two parties who engage in a series of transactions in which title to goods passes from on to the other. McCarmant v. Batsell, 59 Tex. 363, 367-369 (Tex. 1883), Livingston For Mercury, Inc. v. Haley, 997 S.W.2d 425, 427 (Tex. App.—Beaumont 1999, no writ). An account stated is merely an open account that has been closed because the party charged has agreed that the account is correct. Whittlesey v. Spofford 47 Tex. 13, (Tex. 1877), Wroten Grain & Lumber, Co v. Mineola Box Mfg. Co, 95 S.W. 744 (Terx. Civ. App.-1906), Padgitt Bros. Co. v. Dorsey, 194 S.W. 1124, 1126 (Tex. Civ. App.—El Paso 1917, no writ). The classic statements of the elements of the account stated cause of action expressly draw a distinction between suits that grow out of a course of dealing and suits that grow out of an express agreement. Central Nat. Bank of San Angelo v. Cox, 96 S.W.2d 746, 748 (Tex. Civ. App.---Austin 1936, writ dismissed). This means that the first and defining element of an account stated cause of action is the existence of a debtor-creditor relationship that arises from a series of transactions or course of dealing, and not from an express contract.
    18. Texas courts have refused to allow plaintiffs to recover on implied contractual theories for transactions governed by express contracts. Specifically, Texas courts will not imply the existence of a contract where an express contract already exists, and stated account claims are implied or quasi contractual causes of action. Fortune Production Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000), Woodard v. Southwest States, Inc., 384 S.W.2d 675 (Tex. 1964), Musick v. Pogue, 330 S.W.2d 6969,699 (Tex. Civ. App.—San Antonio 1959, writ ref’d n.r.e). The reasoning behind this rule as enunciated in Fortune Production is that the parties should be bound by their express agreements. Under the Federal Truth in Lending Law, a comprehensive set of written documents setting forth virtually all of the material terms of the account is required, including the interest rates, cash advances and balances transfers made using the account, the manner in which variable rates are determined, the amount of annual fees or other fees, the amount of minimum finance charges, and other terms. Therefore, under 12 C.F.R. 225.5-225.16 and 15 U.S.C. §1601 et seq, it is unlawful to issue a credit card without an express agreement, and under Texas law, if an express agreement exists, then there can be no recovery on implied or quasi contractual theories of recovery."
  6. setman

    setman New Member

    I got a letter from a debt collector on a credit card that off hand I do not remember. It is not on my credit report, and the last credit cards I had were over 5 years ago. Should I send them a letter for more information on it?


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