Re: Why chat please help
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Posted by SunnyD
(63.121.87.156) on February 06, 2004 at 08:44:16:
In Reply to: Why chat please help posted by Need help Florida SOL defense on February 06, 2004 at 06:07:36:
I'm by no means an expert on this (WhyChat helped me a lot in the past - but the following is my own interpretation of the FL statutes), but for credit card SOL you should be aware that the 4 years applies to CONTRACTS NOT BASED ON A WRITTEN INSTRUMENT (Fl. Statutes VII ch. 95.11(3)). WRITTEN INSTRUMENT - Look up FL. Statutes XXXIX ch. 673.1041, XXXIX ch. 679.1021(uu), XXXIX ch 673.1181. Is the application form a CONTRACT ? Well, it is signed by only one party (yourself), and most likely somewhere in the fine print there is a statement to the effect that you are entering into a contract - although it is not signed by the CC company. So they can claim that it is a bilateral (agreed by both parties) contract. However, look up Fl. Statutes XXXIX 678.0304(2) and/or XXXIX 687.0304(3). I believe such an application form is EXCLUDED as a contractual credit agreement without the signature of the CC company or its representative. Question might be : can the fine print be used in the place of a signature by the CC company - maybe, but not what the statute says. However, fine print required you to acknowledge that it is an implied signature. Therefore your signature completes the contract. HOWEVER :- Even if the application form were a contract. It is not a contract based on a WRITTEN INSTRUMENT - the basis of the 4 year Fl. SOL. Written instrument would be a binding agreement to pay a FIXED SUM (eg $1,500) at a SPECIFIED DATE (On March 20th 2004) eg. someone or a company cut a check for a given amount or some other such INSTRUMENT recognizable and acknowledged by a bank or other financial institution. Ever tried to cash out your credit limit by presenting your signed CC application to a bank ? This is not what the application for a credit card is. Neither is this what a credit card. It is an OPEN ACCOUNT - nobody knows exactly WHEN and FOR HOW MUCH that card will be used. For this reason, FL statute of limitations is 4 years since the CONTRACT is NOT BASED ON A WRITTEN INSTRUMENT. The 5 year SOL is for a specific date and for a specific amount. Neither the application for the card, the credit card company statements nor the rectangular piece of plastic constitute a WRITTEN INSTRUMENT. These are my thoughts on the issue of the Fl. SOL. I encourage anyone to please challenge or confirm so that there will be greater clarity on this matter. I have a question for you : Can you point me to where you got your TILA information ? Respectfully, SunnyD.
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