01-19-2010 05:47 PM
You might want to actually look at:
FDIC Law, Regulations, Related Acts
6500 - Consumer Protection
PART 226—TRUTH IN LENDING (REGULATION Z)
Wherein credit card account are specifically set out and governed as "open-end credit".
It's open-end because it is not fixed as to term or amount. Collectors can try to dance around the point all the want, but I doubt it will be very successful.
more, but I'm done pasting!
01-20-2010 07:48 PM
Thanks for the replies and the links. They've been helpful.
I am sorting out and organizing the available and provided information.
txjohn, I agree that thats where the problem could arise in that they may not be mutually esclusive - 'open ended' and 'written contracts'.
While its established that CC a/s are open ended a/cs, are they absolutely NOT written contracts? What would constitute a written contract? Why would a judge construe a CC to be a written contract when the laws, as we have seen in this thread state the contrary.
In some states, such as Missouri I believe, a CC could be considered a written contract if the OC can produce a written agreement. Doesnt make sense but thats the judge doing it.
Hill vs American Express is a case law in GA which stated that a CC is a written contract. Notwithstanding the federal and GA state statutes.
Univ os South AL vs Bracy is another case law in AL which explains that a written contract is an 'account stated' which is an account balanced and rendered with an assent to the balance.Unless the OC can prove this, its automatically an open account which makes more sense. That is, a CC would be held as an open a/c unless it can be proved that its also a written contract.
a written contract could, per my understanding, be reduced to the following;
- should have a pre determined and agreed upon balance OR
- should be a contract arising upon the sale of goods
and hence clear and distinct from an open ended account.
Some more case laws out of AL;
- Creel vs Baggett Transportation - If all the terms of an agreement are not fixed, its an open a/c.
- Sinclair refining co vs Robertson - A CC is not an a/c stated since it has varying balances, with varying APR and with tendency to accumulate more charges.
- Walker vs Trotter brothers
- Ware vs Manning
- Jasper Trust co vs Lamkin
But when I called this consumer advocate in AL who I picked out of NACA, she stated that CCs are written contracts. Sigh!
01-20-2010 09:08 PM - edited 01-20-2010 09:12 PM
I got the CC in LA.
Immediately moved to NY.
Am now in AL.
So AL and LA would apply. SOL would toll in LA. But would not in AL.Either case, its 3 years for open a/cs and 6 for written. For now, am not contemplating the possibility that I could be sued, if it ever came to that, in LA.
Nope not sued yet. Ive tried to be on top of this CA. They are demanding 2100 on a 800CL CC whose real balance was only 350. My DOLA was a payment of 450. DOFD Oct 2006. Balance at CO in 12/08 was 1370.
So, Im trying to ascertain that the SOL is up for sure before I go allout on this CA as they are refusing to work with me (refusing PFDs).
01-21-2010 05:55 AM - edited 01-21-2010 05:56 AM
What has been their response to the PFD, if any? Are they requesting you settle? are they refusing to PFD because its against their practices? are they saying its against the law? Who is the CCC, maybe someone has a better address to send the PFD to for a different result.
ETA: Reread and saw you are dealing with the CA, not the OC. Have you DV's the CA to make sure they actually bought the debt? Can you deal with the OC at all or have they completely turned it over?