Author Topic: Credit Card SOL's with Citations  (Read 28901 times)

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flacorps

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Re: Credit Card SOL's with Citations
« Reply #45 on: March 15, 2013 07:59:46 PM »
Here's the purported language:

Quote
"This Agreement will be interpreted using Virginia law. Federal law will be used when it applies.

You waive any applicable statute of limitations as the law allows. Otherwise, the applicable statute of limitations period for all provisions and purposes under this Agreement (including the right to collect debt) will be the longer period provided by Virginia or the jurisdiction where you live. If any part of this Agreement is found to be unenforceable, the remaining parts will remain in effect."

Capital One's lawyers had a lot of clever fun, but courts might not be willing to go along with it.
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Bubbles

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Re: Credit Card SOL's with Citations
« Reply #46 on: August 11, 2013 07:10:36 AM »
Incorrect.

SOL starts on default.

Charge-off is an accounting element and only has relative meaning to when the cause of action occurs.


Also incorrect. For credit cards SOL begins with last transaction (payment or purchase).

Bruno the JDB Killer

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Re: Credit Card SOL's with Citations
« Reply #47 on: August 11, 2013 07:52:21 PM »
CleaningUp is correct.

Default is defined in the credit card agreement. Every one I've ever seen defines default as occurring on the date when a scheduled payment is not made in full. Partial payments do not count. If the account is not brought current within a specified time limit, default continues and becomes irrevocable.

Some states have statutes that say that the date of last activity / payment / usage / whatever starts the clock. These statutes are used when there is no contract between the parties defining the terms.

This below is from my state, but most states take the same view.

"In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met. . . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make."

In Fischer Co. v. Morrison, 137 Conn. 399 - Conn: Supreme Court 1951, the Court stated:  "`All true contracts grow out of the intentions of the parties to the transactions, and are dictated ... by their mutual and accordant wills.'"

No court should set aside a legal, binding contract and rewrite it according to some state statute that does not apply. Most of these statutes are banking commission statutes or procedural law rules that do not apply, nor can they be enforced against national banks.

I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Credit Card SOL's with Citations
« Reply #48 on: August 11, 2013 09:08:45 PM »

This below is from my state, but most states take the same view.

"In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met. . . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make."

In Fischer Co. v. Morrison, 137 Conn. 399 - Conn: Supreme Court 1951, the Court stated:  "`All true contracts grow out of the intentions of the parties to the transactions, and are dictated ... by their mutual and accordant wills.'"

No court should set aside a legal, binding contract and rewrite it according to some state statute that does not apply. Most of these statutes are banking commission statutes or procedural law rules that do not apply, nor can they be enforced against national banks.

Fischer Co. v. Morrison involved a manager for Morrison's company who made unauthorized orders and payments for Morrison.   The orders were signed by the manager, not by the proper person.  That's why the court stated "All true contracts grow out of the intentions of the parties to the transactions".

The rest of that citation is interesting.  "and are dictated ... by their mutual and accordant wills."

Use and acceptance is part of a credit card agreement.  If you make charges and payments, your conduct has shown that you're willing to accept the terms of the agreement.

In construing the intended meaning of terms in a contract, the conduct of the parties regarding their use is a proper consideration. Taft Realty Corporation v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 343, 150 A.2d 597.

Quote
Some states have statutes that say that the date of last activity / payment / usage / whatever starts the clock. These statutes are used when there is no contract between the parties defining the terms.

This next case doesn't involve a credit card and is in reference to the UCC, but the court did rule on partial payments.


ALARMAX DISTRIBUTORS v. NEW CANAAN ALARM, 61 A. 3d 1142 - Conn: Appellate Court 2013

For example, in Greer Limestone Co. v. Nestor, 175 W.Va. 289, 332 S.E.2d 589 (1985), in an action on a breach of contract under UCC § 2-725, the court acknowledged that the limitation period could be tolled by a partial payment. The court first determined that the parties had an open account and that unless the defendant's partial payments tolled the statute, the action would be barred under UCC § 2-725. Id., at 294, 332 S.E.2d 589. The court concluded that "the rule in most jurisdictions is that partial payment on a debt may start the statute of limitations running anew where the payment is made voluntarily by a debtor under circumstances that warrant a clear inference that the debtor recognizes the whole debt to be subsisting and demonstrates his willingness or obligation to pay the balance of the debt." Id., at 295, 332 S.E.2d 589. The court affirmed the trial court's finding that the requisites for the doctrine of partial payment had been met and the plaintiff's action was timely. Id., at 296, 332 S.E.2d 589; see also Giordano v. Westchester County Dept. of Parks Recreation & Conservation, 32 App.Div.3d 897, 898, 821 N.Y.S.2d 242 (2006) (considering whether UCC § 2-725 was tolled by defendant's partial payment, although concluding plaintiff failed to demonstrate payment constituted acknowledgment of debt); Beckmire v. Ristokrat Clay Products Co., 36 Ill.App.3d 411, 415, 343 N.E.2d 530 (1976) (finding UCC § 2-725 tolled by defendant's absence from state). These cases are supportive of our conclusion that the limitation period embodied in the statute may, in law, be tolled by the conduct of the parties.

Whether on the basis of a contract or the SOL, Connecticut courts place an emphasis on conduct.  Charges and payments evidence a party's agreement to terms.  A partial payment evidences recognition of a debt and an intent to pay.
« Last Edit: August 11, 2013 09:30:06 PM by BellEbutton »

Bruno the JDB Killer

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Re: Credit Card SOL's with Citations
« Reply #49 on: August 19, 2013 06:32:27 PM »
Use and acceptance is part of a credit card agreement.  If you make charges and payments, your conduct has shown that you're willing to accept the terms of the agreement.

There is no such statute in CT, so this is moot. Use and acceptance may be part of the creditor's state law, (MO and DE have a statute) but the problem is that national banks have no authority to export their contract law, only their interest rate.

I mentioned the theory in Morrison in connection with an unsolicited credit card where there is no cardholder agreement, or in other cases where there is provably no agreement. You cannot agree to something that was never given to you. You will also have a very hard time pursuing a breach of contract case when there is no contract.


Creditors can't have it both ways. They can't say "we didn't give Joe a credit card agreement" and then turn around and sue Joe for breaching a non-existent contract.

A partial payment evidences recognition of a debt and an intent to pay.

Agree in part, disagree in part.

Partials reset the SOL in 32 states. CT is one of them. As for the intent to pay, that can be argued this way.....sure, I'm willing to pay a certain amount for obvious reasons. First of all, it's my obligation to pay for the things I buy. Second, I don't like being sued. However, at some point I'm going to stop paying because I may discover that the interest rate being charged since 1981 is not legal. You owe me a refund, Mr. credit card company.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Credit Card SOL's with Citations
« Reply #50 on: August 19, 2013 09:37:24 PM »
There doesn't have to be a statute.  It's contract law.

It is axiomatic that to create a contract there must be an unequivocal acceptance of an offer. Bridgeport  Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970); Leigh v. Smith, 138 Conn. 494, 496, 86 A.2d 567 (1952).

Acceptance may be shown by acts or conduct indicating assent to an offer or, under appropriate circumstances, acceptance may be implied by the offeree's silence and inaction. John J. Brennan Construction Corporation, Inc. v. Shelton, 187 Conn. 695, 710, 448 A.2d 180 (1982); Shulman v. Hartford Public Library, 119 Conn. 428, 433, 177 A. 269 (1935).

The evidence was sufficient to support a trial court finding that the defendants by their words, acts and conduct led the plaintiff reasonably to conclude that they had accepted the plaintiff's offer, thus creating a contract for construction of the patio at $2.50 per square foot. Accordingly, the facts support a finding that there was an express contract between the parties for the amount claimed by the plaintiff.  Pleines v. Franklin Constr. Co., 30 Conn. App. 612, 617 A.2d 759, 762 (1993).

Bruno the JDB Killer

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Re: Credit Card SOL's with Citations
« Reply #51 on: August 20, 2013 12:20:52 AM »
Sorry, you are correct in one respect but not the other.

Extension of credit in Ct is defined under Title 36A, The Banking Law of Connecticut. It makes no mention of credit card issuance or enforcement because states have no authority over national banks. Even if it did, enforcement in CT is reserved for the Banking Commissioner, no private right of action.

Also, there is no "contract law" in Connecticut. It falls under the common law. The common law extends no privilege to the states to regulate national lenders. They fall under 12 USC 85 and can thumb their noses (and do) at the states. The only time a state can regulate a national lender is if they violate state law.

Lenders always stipulate that the laws of their state apply. Good for them. When they then admit they did not make a written agreement, their argument fails. Then they are subject to those very same laws, which they do not like very much when they actually read them.

Show me one credit card case in CT where a lender prevailed based upon use and acceptance. There aren't any. Credit card cases are another dimension because the lenders do not fall under state statute. All they sue under is account stated and breach of the contract we never sent you.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Credit Card SOL's with Citations
« Reply #52 on: August 20, 2013 05:01:54 AM »
When I referred to use and acceptance, I was referring to the acts and conduct of the parties.   This has nothing to do with whether or not a state has a statute that regarding the issuance of a credit card.   It's about the existence of a contract.

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Credit card cases are another dimension because the lenders do not fall under state statute. All they sue under is account stated and breach of the contract we never sent you.

This is where the acts and conduct of the parties comes in.  The case law I provided shows that Connecticut courts have ruled that one's actions can determine whether or not a contract exists.   In  John J. Brennan Construction Corporation, Inc. v. Shelton, the Connecticut Supreme Court even said that "Acceptance may be shown by acts or conduct indicating assent to an offer".

An implied contract is an agreement between the parties which is not expressed in words but which is inferred from the acts and the conduct of the parties. Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67; Freda v. Smith, 142 Conn. 126, 134, 111 A.2d 679; Collins v. Lewis, 111 Conn. 299, 304, 149 A. 668.