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Re: SOL on credit cards in Ohio?


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Posted by lawguy (68.119.155.69) on March 22, 2003 at 13:54:26:

In Reply to: Re: SOL on credit cards in Ohio? posted by scott on March 22, 2003 at 13:15:27:

Although TILA and the FCBA define a CC as an open account, these do not preclude a state from defining a CC differently for purposes of a state SOL (because TILA and the FCBA are not subject to the complete preclusion doctrine). They are very persuasive though, and could be used as ammunition in making an argument to a court. If the state code defines a CC as a specific type of contract, that would apply.

My question, though, was where in the Ohio code the 4 year limitations period comes from. I didn't see a specific statute for open accounts, but I may have overlooked it. Otherwise, I believe a regular credit card would be a contract not in writing, although some credit cards could be classified as a contract in writing, depending on how the CC holder got the CC.

(i.e. you go to your local bank and ask for a credit card with them. They give you a "credit card agreement" for you to sign. You sign it, the bank representative signs it, and you get your card. That would likely be considered a contract in writing, because your obligations arise under the written contract that you signed. But most CC's don't get issued that way.)

The case I referred to earlier is COLORADO NAT'L BANK OF DENVER v. STORY, 261 Mont. 375, 862 P.2d 1120 (1993), which was decided by the Supreme Court of Montana.

In this case, the bank issued a credit card to the defendant. Def. signed an application, bank issued a card, and def. used the card. Def. defaulted on payments, and bank brought suit more than 5 years after the default.

The court cited the Montana SOL: "(1) The period prescribed for the commencement of an action upon any contract, obligation, or liability founded upon an instrument in writing is within 8 years.
(2) The period prescribed for the commencement of an action upon a contract, account, or promise not founded on an instrument in writing is within 5 years."

The trial court below found that the def.'s signature on the application constituted a written contract. On appeal, the Sup. Ct. held that since the application did not contain the terms of the contract, then the application was not the contract itself. Since no evidence was submitted to the trial court that would allow the court to find that a written contract existed, the Sup. Ct. held that the contract was not in writing and that the 5 year SOL applied.

Note that this case is limited to Montana, and limited to the specific type of facts given. If a person signed an actual contract for the CC, then it would be subject to a written contract SOL.

But still, I was curious where the 4 year Ohio SOL comes from...


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