Statute of Limitation: checking account contract?

[BrandonSS]

I am looking at Indiana Statute of Limitations and trying to figure out where a checking account would fall. 

STATUTE OF LIMITATIONS (IN YEARS)

• Open Account: 6
• Written Contract (for payment of money before 9/1/1982): 10
• Written Contract (for payment of money after 8/31/1982): 6
• Written Contract (for other than payment of money before 9/1/1982): 20
• Written Contract (for other than payment of money after 8/31/1982): 10
• Written Contract for sale of goods: 4
• Domestic Judgment: 10 on real estate (renewable for additional 10); 20 against the person
• Foreign Judgment: 10

I had an account in college that was closed out by myself when I moved.  But the account was reopened after a check I cashed from my roommate bounced.  They in turn reopened my closed account, sending my account to something like -$80(the amount of his check), plus $35 overdraft, plus $5 a day for a month or longer, whenever I got the check and letter in the mail at my new address.  I tried to fight it back then but let it go.  No one has attempted to make a collection, BUT it is on my credit report as an open collection for $405 (CA is Cash-Pro Inc.).  The date is early 2004, so it is over 6 years. 

I’m trying to define what type of contract a checking account is and if the account is beyond the SOL.  IF so I am going to attempt to get it off.  If not

I’m going to tread more lightly and take gentle steps towards remedying the account.  Before I poke at this thing that has been asleep since 04, I want to make sure its “safe”.

 Thanks myFICO!!!

EDIT: I've been searching further.  I found Indiana Code 34-11-2 http://www.in.gov/legislative/ic/2004/title34/ar11/ch2.html and if I'm interpreting correctly, this applies to the account I'm questioning;

---

IC 34-11-2-9
Promissory notes, bills of exchange, or written contracts for

payment of money
     Sec. 9. An action upon promissory notes, bills of exchange, or other written contracts for the payment of money executed after August 31, 1982, must be commenced within six (6) years after the cause of action accrues. An action upon promissory notes, bills of exchange, and other written contracts for the payment of money executed on or after September 19, 1881, and before September 1, 1982, must be commenced within ten (10) years after the cause of action accrues. However, all contracts described in this section that have been executed before September 19, 1881, may be enforced within the time only as they have to run, before being barred under the law in effect at the time of their executions limiting the commencement of actions, and not afterward.
As added by P.L.1-1998, SEC.6.

---

[BrandonSS]

Replying to myself for future searchers.

I just spoke with my aunts law firm.  One of the paralegals called me back and referenced exactly what i pasted above.  She told me to dispute the information with the credit bureaus and to cite that statute.  She said that reporting it is still punishing me so they should not be able to continue reporting beyong the SOL.  Now, she isnt the lawyer there, and I havent spoken to my aunt yet as she is in court, so take the advice as you will but I'm giving it a shot.

[Anonymous]

---

@BrandonSS wrote:

Replying to myself for future searchers.

I just spoke with my aunts law firm.  One of the paralegals called me back and referenced exactly what i pasted above.  She told me to dispute the information with the credit bureaus and to cite that statute.  She said that reporting it is still punishing me so they should not be able to continue reporting beyong the SOL.  Now, she isnt the lawyer there, and I havent spoken to my aunt yet as she is in court, so take the advice as you will but I'm giving it a shot.

---

While the SOL is 6 years, it is false that the SOL can control how long the tradeline is reported on your credit reports.  The CRTP (credit reporting time period) and SOL are not the same.

The tradeline can be reported for up to 7 & 1/2 years.  Checks are handled a bit differently and, without looking through my files, I believe it is 7 years from the date the check was returned unpaid to payee.

[RobertEG]

The governing definitions for checks are found in the Uniform Commercial Code (U.C.C.), and the fed statute of limitations is set forth for those states without their own version of the Uniform Commercial Code at U.C.C. 3-118.

A check is defined broadly, not as a written contract for payment of money, but rather as a “negotiable instrument" between the consumer and the bank.

To get the answer to your question, I think you have to check out your state version of the U.C.C.  Every state has adopted Article 3 of the Uniform Commercial Code (UCC), with some modifications, as the law governing negotiable instruments.

Indiana’s version of the Uniform Commercial Code (IC Title 26), specifically Chapter 3.1 “Negotiable Instruments,” states at I.C. § 26-1-3.1-11::

 “Action to enforce obligation of party--: (a) Except as provided in subsection (e), an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six (6) years after the due date or dates stated in the note or, if a due date is accelerated, within six (6) years after the accelerated due date."

I agree with O6 in that this SOL is totally urelated to credit reporting, and cannot be used as a basis for disputing credit reporting conducted outside of SOL.

Continued inclusion in your credit report is governed by FCRA 605(a)(5) as any "other adverse items of informatiion," such as yours, which antedates the report by more than 7 years. 

[Anonymous]

---

@RobertEG wrote:

The governing definitions for checks are found in the Uniform Commercial Code (U.C.C.), and the fed statute of limitations is set forth for those states without their own version of the Uniform Commercial Code at U.C.C. 3-118.

A check is defined broadly, not as a written contract for payment of money, but rather as a “negotiable instrument" between the consumer and the bank.

To get the answer to your question, I think you have to check out your state version of the U.C.C.  Every state has adopted Article 3 of the Uniform Commercial Code (UCC), with some modifications, as the law governing negotiable instruments.

Indiana’s version of the Uniform Commercial Code (IC Title 26), specifically Chapter 3.1 “Negotiable Instruments,” states at I.C. § 26-1-3.1-11::

 “Action to enforce obligation of party--: (a) Except as provided in subsection (e), an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six (6) years after the due date or dates stated in the note or, if a due date is accelerated, within six (6) years after the accelerated due date."

---

Not exactly.

When the UCC speaks of note, they refer to a promissory note or a loan agreement and not usually a check or a draft.  A draft is payable on demand and not at a specific time in the future and is not able to be accelerated whereas promissory notes are.  A check or draft is not a promise to pay, it is an order.   

UCC § 3-104.  NEGOTIABLE INSTRUMENT.

(e)  An instrument is a "note" if it is a promise and is a "draft" if it is an order.  If an instrument falls within the definition of both "note" and "draft," a person entitled to enforce the instrument may treat it as either.

(f)  "Check" means (i) a draft, other than a documentary draft, payable on demand and drawn on a bank or (ii) a cashier's check or teller's check.  An instrument may be a check even though it is described on its face by another term, such as "money order."

We thus need to look to UCC § 3-118 (c) to see what the SOL is. 

However, this is generally moot since courts generally give precedence to written SOLs within the civil procedure law instead of what is specified in the UCC. 

[BrandonSS]

I doubt it matters, but it wasn't my check... Thankfully I've never written a check that has bounced in my life. I'm technically not being charged for the check.  I was charged with a negative (re-opened) bank account and then fees for being in the red. 

Order of events:

Took card and ID to bank along with my roommates check he wrote me for utilities that I paid.

Teller cashed his check, withdrew all of my funds, placed it all in an envelope and I believe I signed some papers to close the account

Moved to Indy and deposited the funds into my Credit Union account.

About 2 months later, after mail forwarding, etc I get a letter from Old National Bank.  The letter is wrapped around his bounced check stamped with NSF all over it.  It shows a bill that I owe them $80 (his check), plus $35 fee, plus $5 a day running.

Tried calling the bank and giving them the $80 for his check but they weren't taking it so I gave up communication with them (I was 21-22 lol)

Anyway, the main concern with this was poking a sleeping debt.  I didn't want to poke at it until the SOL was passed.  My understanding and interpretation of the code defines that it is past.  But, from what you are saying, perhaps not.  I guess I will see what happens next since I did dispute it with all three bureaus yesterday. 

[Anonymous]

---

@BrandonSS wrote:

I doubt it matters, but it wasn't my check... Thankfully I've never written a check that has bounced in my life. I'm technically not being charged for the check.  I was charged with a negative (re-opened) bank account and then fees for being in the red. 

Order of events:

Took card and ID to bank along with my roommates check he wrote me for utilities that I paid.

Teller cashed his check, withdrew all of my funds, placed it all in an envelope and I believe I signed some papers to close the account

Moved to Indy and deposited the funds into my Credit Union account.

About 2 months later, after mail forwarding, etc I get a letter from Old National Bank.  The letter is wrapped around his bounced check stamped with NSF all over it.  It shows a bill that I owe them $80 (his check), plus $35 fee, plus $5 a day running.

Tried calling the bank and giving them the $80 for his check but they weren't taking it so I gave up communication with them (I was 21-22 lol)

Anyway, the main concern with this was poking a sleeping debt.  I didn't want to poke at it until the SOL was passed.  My understanding and interpretation of the code defines that it is past.  But, from what you are saying, perhaps not.  I guess I will see what happens next since I did dispute it with all three bureaus yesterday. 

---

At 6 years it is definitely past the SOL so they would not be able to get a judgment against you.

[BrandonSS]

EX email alert on my phone woke me up in the middle of the night just now so i had to get up and see my dispute results...

my only collection.... DELETED! 

From my past experience, EX has been the hardest to get a delete out of, and of the 3 this was the only CRA that i used the online dispute for.  The other 2 were disputed manually.

Super stoked!!!  Have a great Thursday everyone!  Back to bed for a few hours.