Author Topic: Credit Card SOL's with Citations  (Read 28900 times)

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credit_h

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Re: Credit Card SOL's with Citations
« Reply #30 on: February 16, 2013 05:10:30 AM »
Even if you can show a bank statement which shows no such payment was made, couldn't they just claim you used a different bank account or a money order to pay?

You have the burden of proof for any affirmative defense, such as SOL, you would need to show proof that it is out of SOL.

kickinanscreamin

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Re: Credit Card SOL's with Citations
« Reply #31 on: February 16, 2013 07:18:33 PM »
You could go to the bank where they had accounts and ask the bank to make copies of statements for that period of time when the alledged payment was made.  Have the parent make an affidavit that the accounts were the only accounts they had and that there was no payment made to the cc company on that date, etc.

Days Late Dollars Short

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Re: Credit Card SOL's with Citations
« Reply #32 on: February 16, 2013 08:26:27 PM »
You could go to the bank where they had accounts and ask the bank to make copies of statements for that period of time when the alledged payment was made.  Have the parent make an affidavit that the accounts were the only accounts they had and that there was no payment made to the cc company on that date, etc.

Thanks, thats a good idea.  I don't have time to get that done before the answer has to be filed though.  I just didn't know if I should put it in as an affirmative defense if I didn't actually have proof on my end.  I'm fuzzy on who has burden of proof where.  I need to do some reading on that topic so I don't get myself in trouble.

kickinanscreamin

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Re: Credit Card SOL's with Citations
« Reply #33 on: February 16, 2013 08:58:15 PM »
do your parents have clarity of memory sufficient to know whether or not they made that payment in 2007?  If they can conclusively claim they never made that payment, I would dispute/deny the payment and use SOL as an affirmative defense.

Are you certain that you are being sued by the OC?  That OC is known for selling accounts.  Is is possible the OC sold the account and that pmt was what the JDB paid for it?

kickinanscreamin

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Re: Credit Card SOL's with Citations
« Reply #34 on: February 16, 2013 09:00:58 PM »
Another option is to MTC arbitration and also MTD based on arbitration.  If you can get the dismissal and then keep delaying until November, you will certainly be SOL then.

cracrap

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Re: Credit Card SOL's with Citations
« Reply #35 on: February 17, 2013 06:24:42 PM »

You have the burden of proof for any affirmative defense, such as SOL, you would need to show proof that it is out of SOL.

Actually, I believe that when the sol is raised as an affirmative defense, the burden shifts to the plaintiff to show that the action is not barred by the sol.

Typically, the allegations of the complaint will suffice if the time period is alleged.
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credit_h

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Re: Credit Card SOL's with Citations
« Reply #36 on: February 17, 2013 07:15:16 PM »
Affirmative defenses generally has to be proven by the defendant, SOL is an affirmative defense.

cracrap

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Re: Credit Card SOL's with Citations
« Reply #37 on: February 20, 2013 04:52:21 PM »
S.O.L. is a tweener, it can be procedural or substantive depending on the state and may be raised at any time if it is plead. Even for the first time on appeal.
say nope to dope...ugghh to drugs...and God bless Ronald Reagan!!!


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this really is not a spectator sport ... you have to know what your doing ... or you will get in very hot water very quickly

altony

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Re: Credit Card SOL's with Citations
« Reply #38 on: February 21, 2013 07:39:10 PM »
Quite interesteing for GA


Georgia 4 years* 9-3-25 State law *In January 2008, the Georgia Court of Appeals ruled (Case No. A07A2338) the statute of limitations on an unpaid credit card bill was 6 years. The ruling doesn't change state law, but sets a precedent that future suits may cite.

Read more: http://www.creditcards.com/credit-card-news/credit-card-state-statute-limitations-1282.php#ixzz2LZ2bj5Vr
Compare credit cards here - CreditCards.com

Wonder is some if not all of some of my issues are pass sols?

kparker

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Re: Credit Card SOL's with Citations
« Reply #39 on: February 22, 2013 08:14:57 PM »
The date you first became delinquent on the account is when the state SOL begins.  If you paid on the account and brought it to a current status, then the SOL is reset and would restart when you became delinquent again?

What was the date of first delinquency according to the original creditor?

MrSev

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Re: Credit Card SOL's with Citations
« Reply #40 on: February 25, 2013 03:38:06 PM »
Quite interesteing for GA


Georgia 4 years* 9-3-25 State law *In January 2008, the Georgia Court of Appeals ruled (Case No. A07A2338) the statute of limitations on an unpaid credit card bill was 6 years. The ruling doesn't change state law, but sets a precedent that future suits may cite.

Read more: http://www.creditcards.com/credit-card-news/credit-card-state-statute-limitations-1282.php#ixzz2LZ2bj5Vr
Compare credit cards here - CreditCards.com

Wonder is some if not all of some of my issues are pass sols?
It's kind of a double-edged sword with Hill v. American Express in GA. On one hand, it pushes SOL out to 6 years, but on the other, it rules that all credit cards are now simple contracts. Hence, a JDB has to sue on Breach of Contract (with its higher burden of documentation and proof) instead of Account Stated.

If they sue on Account, and it's under 4 years, you MTD claiming it's a Contract instead under Hill, and hit them with an FDCPA suit for taking an action they couldn't legally take, since they didn't sue for Breach of Contract.

If it's past 4 years but under 6, MTD for SOL. If they cite Hill, then MTD for failing to sue for Breach, and counterclaim FDCPA violation, as above.

bmoc67

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Re: Credit Card SOL's with Citations
« Reply #41 on: March 15, 2013 09:58:35 AM »
I am about to try a couple different routes involving SOLs in GA. Obviously you can state TILA considers credit cards Open Accounts and that supersedes the state, the additional help you can get from the credit card company's own agreement. First, at least with Discover and Cap One, they clearly state the card is a "revolving" account, and 2nd which maybe others have tried, is the part of the agreement GOVERNING LAWS - Discover is all federal laws and the laws of Delaware, Cap One is all federal laws and the Commonwealth of Va. Both of these states have a 3 year SOL.

They cant have it both or every way they want, they want to call it a contract one minute but do not on their own agreement. Interested if anyone has worked these avenues and the outcome. I will be working these and will post results as they come in....Good Weekend to ALL!

fisthardcheese

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Re: Credit Card SOL's with Citations
« Reply #42 on: March 15, 2013 12:57:26 PM »
bmoc67,

Please do update with your results. I will be very interested in knowing how it plays out.  I have not yet had to deal with this issue, but I may in the future. I was thinking about trying something along the same lines. I was going to MTC Arb and then see if the Arb would accept SOL from the agreement's governing state and if they tried to push Hill I would state that the agreement clearly says "revolving account" and if we are striking both the governing state's laws AND the "revolving account" from the agreement, then I should be able to strike the portions of the agreement that I do not like as well.  I haven't worked out the exact way I would approach this but roughly figured I would try something along those lines if it came to it.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
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2 FCRA Settlements (consumer atty)
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1 State UDAP Settlement (ITS)
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flacorps

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Re: Credit Card SOL's with Citations
« Reply #43 on: March 15, 2013 04:44:40 PM »
The Fernandes cases establishes a four year statute of limitations in Florida for credit cards: http://www.homesteadpropertyexemption.info/index.php?action=vthread&forum=31&topic=374

Note, however that with respect to Capital One's former reliance on Virginia Law, the hard-fought Pincus case established a three year statute: http://www.prweb.com/releases/2010/03/prweb3657014.htm

Capital One has since changed its cardholder agreement to adopt the longer statute of limitations, a bit of legal legerdemain known as depecage which courts really should not allow in the consumer context. http://en.wikipedia.org/wiki/D%C3%A9pe%C3%A7age
« Last Edit: March 15, 2013 04:50:38 PM by flacorps »
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trueq

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Re: Credit Card SOL's with Citations
« Reply #44 on: March 15, 2013 05:45:23 PM »
In WI, that kind of language should be found unconscionable under Wisconsin Consumer Act.
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

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