[JoBenson]

The basics of my situation are that I’m to appear in small claims court next month for an old credit card debt. The last activity on the account would have been in early 2001.

After searching quite a bit online I’m a little confused because many websites say that oral agreement contracts in the state of Florida carry a 4 year statute of limitations but some say a ‘written contract’ in the state of Florida carries 5 years and then go on to say that in some states, revolving credit is considered and oral agreement and that in others, it is considered written. Still other sites listing credit card debt only say it is 4 years and some list credit card debt as an opened ended account and state that it is limited to 4 years.

In short, all sites I looked at pertaining directly to credit card debt say 4 years. The more general sites are entirely unclear and I don’t exactly know what to do. I can’t afford an attorney and the last thing I want to do is walk into the hearing and say something stupid causing a default judgment. As best I can tell, the following site has a legitimate listing of the Statutes in question and the apparent statute in particular is: F.S. 95.11(3)(p) I’ve seen it described as a ‘catch all’ statute in some places.

http://www.leg.state.fl.us/Statutes/...n%2011#0095.11


The thing is, to my entirely uneducated eye, it looks like I would fall under F.S. 95.11(3)(b) if my revolving credit is considered a written contract.

Not that it is important to the case but the story on my debt is pretty much that I got a lot of credit at the age of 18 and pretty much screwed it up at the age of 18. I managed to work through everything with my other creditors and thought I was on the road to doing it with this one but they made an agreement over the phone that they didn’t honor which was to stop charging me over the limit fees on a total that had gotten that way from late fees and fees for not making the minimum payments each month (I did mail what I could though) as well as an agreement to a new monthly minimum payment that I could make. I pretty much got pissed and started ignoring them – I know, real mature and the right thing to do. Beyond that I have little to offer in the way of excuses but would really, really appreciate any info anyone might have.

BTW, I’m listing some of the sites that say 4 years in case anyone can vouch for their legitimacy as reliable sources of info as a ‘trusted’ source. Thanks!

http://www.creditinfocenter.com/rebu...itations.shtml

http://www.fair-debt-collection.com/...explained.html
(The above site uses the state of FL as an example and says four years but then more vaguely speaks of written contracts as 5 years.)

http://www.poorcreditgenie.com/crstatutelim.html

http://www.carreonandassociates.com/...te.htm#Florida

[aaron]

I think the answer is that it could be either four years or five years. Unfortunately I can't find an authoritative answer.

Credit card applications are sometimes taken by phone. If that occurs, the credit card contract as a whole would appear to be subject to the four year statute of limitations, as it is not based upon a signed instrument. Similarly, if a charge is made over the telephone there is no signed instrument, and it thus appears that if you get your credit card by phone, and make your charges by phone, your credit card debt will be subject to the four year statute of limitations.

But... There is authority that for payments on a written installment contract (e.g., a lease), the five year statute applies and the statute begins to run when payments are due, not when the contract is signed. If the original credit card agreement, although an open account, is viewed in a similar way - a written contract obligating the card holder to make monthly payments toward any balance - it would seem to similarly fall under the five year statute of limitations.

Further, if you sign a charge receipt, whatever the statute of limitations on the underlying credit card account, that signature would seem to trigger the five year limitations period for that charge. (Although at a certain point it would become quite cumbersome to try to prove a signature for each individual charge.)

Absent some authority to the contrary, if I were a debtor on a Florida charge account I would assume that the five year limitations period applies.

[JoBenson]

Absent some authority to the contrary, if I were a debtor on a Florida charge account I would assume that the five year limitations period applies.

And the trick with that if it were close would be on when they actually filed the complaint, right?

BTW, thanks for changing the thread name to something more relevant to the actual topic.

[aaron]

If I were a Florida debtor, sued by a credit card company after more than four but less than five years, I would assert as an affirmative defense that the four year limitations period applies. If I were thinking about doing something which might inspire a credit card company to sue me, I would wait until I was sure that the five year limitations period had expired.

[jhwaaser]

The correct interpretation is that this is a store account, or open account, and is listed under Section 95.11.3.k, which has a statute of limitations of FOUR years!

This is not a written contract--at least not unless they sent you a copy of it signed by an officer of the corporation, and with your signature on it as well. As far as they are concerned, this "cardholder agreement" binds only you, not them, and as such it is not a proper contract.

Furthermore, All of these agreements contain a clause that they are bound by the laws prevailing in the bank's home office state, not your state. There may also be a clause stating that any action taken to enforce this agreement must be filed in the bank home office's local court, in which case, you could argue that they sued in the wrong venue, and force them to file there, with no tolling of the statute of limitations while it was filed in the wrong state.

I was recently sued for a credit card on which the statute started ticking on 7 June 2003. I then made a couple of efforts to work things out, and made two payments in November and December of that year. That may have been stupid of me, since I suspect that the statute of limitations restarts from zero the next time I missed a payment, which was 7 January 2004. The agreement states that it shall be governed by the laws of the Great State of Arizona, which has a THREE year statute of limitations on the same type of account. They first filed in my local court in august of 2007, but failed to perfect service within 120 days, and filed an amended complaint in late January of 2008. I expect to win when we go to court next month.

I know that this is now an old thread, and may be too old to help you, but OTOH, it still shows up when I google statute of limitations in FL, so this information should be on the same page, which is why I am taking the time to correct this thread.

[aaron]

Here's a recent law firm assessment of the situation:

So what is the statute of limitations on a credit card debt in Florida? The answer is obvious. It’s whatever the judge on your case says it is.

There is no answer in Florida outside of Palm Beach county. Palm Beach county is the only county to have addressed the controversy as an appellate issue and decided credit cards have a 4 year limit. Unfortunately, this decision is only binding in Palm Beach county. Every other judge gets to determine the issue on their own. And they are split. Judges in the same courthouse disagree on the statute of limitations for credit cards/

[xcandow]

Someone just told me about Statute of limitations I did not know that there was such a thing with credit. Here is a scenario maybe you could help me with. Date of last activity is over 5 years ago for a car repossession. I purchased the car in Florida and it was a lemon. I turned the car back in voluntary and the remaining debt was sold to a collection agency. I want to purchase a house but I am afraid they will make me pay off the car prior to the purchase and the credit bureau said it will not be removed for seven years but I see in the state of Florida that the statue of limitation is 5 years.

My questions are...

If the statue of limitation is 5 years in the state of Florida can I have that item removed from the Credit Bureaus Equifax, Experian & TransUnion prior to the seven year mark?

Do I have to pay that item now that it is over 5 years?

Can they put a judgement against now that its been 5 years?

Thank you for your help in this matter.

[divemedic]

The case was PORTFOLIO RECOVERY ASSOCIATES, LLC, v PAUL FERNANDES in the 15th Appellate circuit for Palm Beach county. I don't have the cite, but a Google search will probably find it.

Fernandes orally moved to dismiss the claims as outside the statute of limitations at the pretrial conference. Portfolio argued that Florida Statute §95.11(2)(b), which provides for a five year statute of limitations, governed because the statement of claim alleged a cause of action to recover on a contract founded on a written instrument.

Fernandes argued that Florida Statute §95.11(3)(k), which provides for a four year statute of limitations, governed because the action was not founded on a written instrument or was on a store account. The trial court dismissed the case based on its finding that the credit card account was an open account subject to the four year statute of limitations.

Basically, under Florida law, in order to be a written instrument, the instrument must contain ALL of the items from a contract, including the amount due to the creditor. Unlike a written contract containing all the terms sued on, proof of the balance due under a store credit card depends on the correctness of the store's books. We know, though, that record keepers come and go; purchased items are returned or exchanged; and partial payments are made. Proof of the amount due under a store credit card is simply not as secure as proof of the amount due on, for example, a promissory note that contains in writing all the terms of the parties' undertakings.

For that reason, the court found that a credit card is a four year SOL. Read the case, it is very informative and it references several other cases that will help you.

ETA: The statute of limitations has absolutely nothing to do with how long the item can be reported by the CRA. That time limit is 7 years plus 180 days from the time the account was delinquent and stayed that way for most negative items.

You can not legally be forced to pay, because if the creditor sues you, you have an affirmative defense. It is not automatic, you have to go to court and raise SOL as a defense.

[Belair40]

Dear jhwasser
so what your saying is that depending on the state that issued the credit card, will then depend on thats states statute? I have a credit card from 10 years ago that has all of sudden resurfaced. Currently Im in the process of setteling my current debt because of a job loss, could that be what may have triggered this particular card to try and collect? Its only 400.00?? If I do figure out that the statute has run out on this card can I write a letter and refer to the law to cease and assist further contact? Thanks