Updates - Hearing date set
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Posted by PinkLady
(69.18.46.18) on July 20, 2004 at 17:13:01:
I've filed an answer to the lawsuit (refer to http://www.cardreport.com/wwwboard70/messages/52039.html) and have received a hearing notice yesterday. The hearing date is on July 27th. I've talked to an attorney briefly about my situation (i am not sure how experienced she is in dealing with credit card debts lawsuits). She said 5 years SOL for the "open account" doesn't exist in the statutes. Open account basically determines when SOL starts on a contract. The SOL for written contract in Iowa is 10 years while 5 years for unwritten contract. So, I have to prove that credit card account is an unwritten contract. I've used the defense answer that posted on WHYChat's web site. The attorney thinks that credit card agreement is a written contract since i've signed the agreement. Attorney said that all i hope for it's the plaintiff fails to show to the court the original agreement. I read this interesting posting from another website and thought it's a very good argument (although the attorney didn't think so). =======================================================
Credit Cards are tricky when it comes to SOLs, as most SOLs were written before credit cards were first used. They are undoubtedly covered by an SOL for contracts, but the question is what kind of contract is it for purposes of the SOL?
Usually in order to use the SOL for a written contract, the contract itself must be signed by the party who is being sued. Just putting the contract terms on paper is not sufficient, it needs to be signed. This is where credit cards typically fail to satisfy the written contract requirement for SOL, as most "Cardmember Agreements" are not signed by the cardholder. Cardholders will typically sign an "Application," but that is not a contract (for various reasons.) At best that could be considered an "Offer" to enter into a contract, but as it typically does not contain the terms of the contract, it cannot be the contract itself.
Additionally, the amount sued for on a written contract must be ascertainable from the written part of the contract itself. I.e. the amount due needs to be calculatable from the written contract. This is another problem with credit cards as written contract, as there is no way that this is possible.
============================================= I went to Discover's website to checkout the credit card application form. On the form, it says by clicking the "Submit Application" button, the applicant is indicating that he has read and agree to the important information. Part of the very long information is "CARDMEMBER AGREEMENT: You agree to be bound by the terms of the Cardmember Agreement, which will be sent with the Card. You also agree that the Cardmember Agreement and the account are governed by Delaware and federal law. The Cardmember Agreement, which includes the rate and fees, is subject to change."
Based on IOWA STATUTE OF FRAUDS 535.17,
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1. A credit agreement is not enforceable in contract law by way of action or defense by any party unless a writing exists which contains ALL of the material terms of the agreement and is signed by the party against whom enforcement is sought.
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The credit card application does not have ALL THE MATERIAL TERMS of the agreement, and the terms are subjected to change. Thus, credit card account shouldn't be considered as written account and is not enforceable in contract law. *********** Does anyone know where to locate the definition of "Written Contract"?? I am pretty nervous about the hearing. Do most of the small claims defendants go to court without attorney representing them? Has anyone gone to the court before and know what kind of questions they are going to ask? Do i just sit there to wait for the plaintiff attorney to prove the points i've written in the answers are wrong? (if they could) Do I have to say anything? I've written everything i know in the answer, I really don't know what else i could say in the court. Attorney has give me a hint (she was nice enough), that sometimes for small claims, the plaintiff's attorney doesn't even have enough proof, they just hope that you will agree to settle for an amount before the hearing session begins. If they have enough proof, there's less chance they are willing to sit down with you to make a much smaller settlement. I think this makes sense. Anyone know any big no-nos that I should never say in teh court??? Help!!
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