[jokyfo]

My question involves credit card collection proceedings in the State of: ARIZONA

Hi, I just found this forum and it looks pretty good.

Here is my situation:

I alledgedly had an old Bank of America credit card debt. I opened the account in April of 2002 and my last payment and contact with them was on 6/10/03. I have never had any contact and/or transactions with anyone regarding this alledged debt in any way whatsoever since 6/10/03.

It was charged off by BOA in about May 2004. The debt was sold several times and was acquired by the debt collector who has it now in mid-2006.

I checked my local justice courts website after getting a knock on my door last week from a guy holding papers (which I did not answer). On the website I see a civil suit was filed on 8/25/08. They are obviously trying to serve me on this.

I believe under AZ law that the Statute of limitations has run and that a defense claiming "Laches" would apply also.

I believe that a revolving, open type of account, a credit card, has a statue of limitations of 3 years in AZ.

HERE IS THE LAW FROM THE ARIZONA REVISED STATUTES:

[I]ARS 12-543. Oral debt; stated or open account; relief on ground of fraud or mistake; three year limitation.

There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions:

1. For debt where the indebtedness is not evidenced by a contract in writing.

2. Upon stated or open accounts other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents, but no item of a stated or open account shall be barred so long as any item thereof has been incurred within three years immediately prior to the bringing of an action thereon.

3. For relief on the ground of fraud or mistake, which cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake. [/I]

THERE IS ALSO THS LAW ON "WRITTEN CONTRACTS" WHICH I UNDERSTAND WOULD BE REFERRING TO BUYING A CAR OR MAJOR APPLIANCE IN MONTHLY INSTALMENTS, ETC.


ARS 12-548. Contract in writing for debt; six year limitation

An action for debt where indebtedness is evidenced by or founded upon a contract in writing executed within the state shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward.

I have spoken to the Attorney Generals office and they stated that these collection companies TRY to have credit cards considered "written accounts" and then claim that they have 6 years to sue. The AG's office did not seem sure as to which view is correct and of course they cannot give legal advice.

From what I have seen, from a lot of different sources, the 3 year limit should apply in my case. I have seen a few sources thatsay the 6 year limit applies.

ANYONE HAVE ANY IDEA ON THIS?

THANKS, GREAT SITE!

[BOR]

For some relevant/current case law, pay a visit to a library where they have the AZ statutes. Look up both sections you cited here, after each should be case law annotations, see if any helps you in making a determination.

[Betty3]

Per my reference Az. is one state which still considers credit cards as open accounts with a three year SOL rather than written contracts with the longer SOL. However, I cannot say what any individual court would decide.

You might do as BOR suggested & see if you can find any recent court cases on credit cards & their SOL etc.

[BOR]

Per my reference Az. is one state which still considers credit cards as open accounts with a three year SOL rather than written contracts with the longer SOL. However, I cannot say what any individual court would decide.

You might do as BOR suggested & see if you can find any recent court cases on credit cards & their SOL etc.

Betty, is the source an appeals court or the AZ SC?

[Betty3]

If you're talking about my reference - it's a ref. book (1-08) - gave no court cases. That's why I suggested OP check & see what they might find re any current court cases. I don't have any other info or any court cases one way or the other re Az.

[jokyfo]

Thank you BETTY and BOR. I will search the ARS, and post what I find here.

[Betty3]

Yes, please post & let us know what you find. Thanks.

[jokyfo]

So far the only things I find, in what I guess are called the "annotations" to the law, are this:

Plea of staute of limitations is not favored in the law, and where the question of which statute to apply is before the court, the longer period of time must be given effect.SAN MANUEL COPPER CORP. v REDMOND (App 1968) 8 Ariz.App 214, 445 P2d 162, 160 U.S.P.Q. 360


Plaintiffs contact with telephone company, which was partly oral and partly written, was an oral contract and was thus governed by Arizona 3 year statute of limitations applicable to oral rather than written contracts.
BIDDLE v MOUNTAIN STATES TEL. & TEL. CO. C.A. (Ariz) 1980, 629 F.2d 571.

These annotations are found in the section on each of the laws I cited in my first post.

I have not yet found, in the AZ law, a clear definition on what a credit card account is, open or written, and therefore which SOLs would apply, 3 or 6.

In Biddle v Mountain States Tel. Biddle had regular oral contact with the phone company and that made it an "oral" contract even though there was also "written" contact.

I wonder if I could claim that I had "oral" contact with the credit card company as well as written and therefore it must be an "oral" agreement.

I find many sources on the Internet that seem quite reputable that states a credit card IS an open ended account.

Any suggections? Should I find an attorney that specializes in fighting this kind of lawsuit?

[BOR]

Yes those are case law annotations.

You need to try to do some in person reading at the library if you can, or as you suggest, you can hire an attorney who specialize in contract law.

You can send the debt collector your interpretation of contract law and ask him to send you his, this way it is on the record. Keep a copy for yourself.

[Betty3]

A lawyer in your area might know how the courts there are handling/considering credit cards currently.