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Bluesie58

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  1. That information (name of the current creditor or OC and amount of the debt) is included in the validation NOTICE. Not one single court has ever ruled that the validation notice validates a debt.
  2. In addition to what was posted by Centex, the name of the OC and amount of the debt does not validate a debt.
  3. A credit card agreement is in writing. There is nothing that says only signed contracts are enforceable and that only signed contracts are contracts. If you are asserting that only signed contracts as defined by the Statute of Frauds are governed by the 6-year SOL, what part of the Statute of Frauds or any other statute makes such an indication? 28-3-109 says that the 6-year SOL applies to contracts “not otherwise expressly provided for”. It does not matter how TILA defines credit cards. TILA specifically says the definitions are for the purpose of that Act only. It has nothing to do with how each state chooses to determine the SOL for a credit card account Citibank (South Dakota), N.A. v. Johnson (TN. Court of Appeals 2016], discusses an unsigned agreement and includes information from TILA. “On appeal, plaintiff asserts that the Motion to Dismiss should have been overruled, because federal law allows a credit card to be issued without a signed application or agreement, and also provides that use of the card constituted acceptance of the Agreement.l “12 C.F.R. § 226.5a, part of the regulations dealing with Truth in Lending, provides that certain disclosures must be made with a solicitation, which is defined as ‘an offer by the card issuer to open a credit or charge card account that does not require the consumer to complete an application.’” “Likewise, 15 U.S.C. § 1602(l), deals with consumer credit, and defines an accepted credit card as one used to obtain money or goods on credit, and contains no requirement that it actually be applied for in writing. The Tennessee statute on unsolicited credit cards provides that ‘use of the card or retention of the card with intention to use it by either the person to whom it was issued or anyone to whom the person entrusts it will result in the person to whom the card was issued being subject to the terms of the agreement and liable for its unauthorized use’, if the card agreement so provides. Tenn.Code Ann. § 47-22-102(b).” “Both federal law and State law provide that a signed agreement/application is not always required to obtain a credit card, and the Trial Court should not have dismissed the Complaint for the lack of a signed agreement. We reverse the Trial Court and reinstate the case and remand for further proceedings.”
  4. It is well established that a contract can be express, implied, written, or oral, "but an enforceable contract must result from a meeting of the minds in mutual assent to terms, must be based upon sufficient consideration, must be free from fraud or undue influence, not against public policy and must be sufficiently definite to be enforced." Klosterman DevelopmentCorp. v. Outlaw Aircraft Sales, Inc.,102 S.W.3d 621, 635 (Tenn.Ct.App.2002). In an express contract, the parties assent to the terms of the contract by means of words, writings, or some other mode of expression. Thompson v. Hensley,136 S.W.3d 925, 930 (Tenn.Ct.App.2003). 28-3-109. Rent -- Official misconduct -- Contracts not otherwise covered -- Title insurance -- Demand notes. (a) The following actions shall be commenced within six (6) years after the cause of action accrued: (1) Actions for the use and occupation of land and for rent; (2) Actions against the sureties of guardians, executors and administrators, sheriffs, clerks, and other public officers, for nonfeasance, misfeasance, and malfeasance in office; and (3) Actions on contracts not otherwise expressly provided for. (b) The cause of action on title insurance policies, guaranteeing title to real estate, shall accrue on the date the loss or damage insured or guaranteed against is sustained. (c) The cause of action on demand notes shall be commenced within ten (10) years after the cause of action accrued.
  5. This is from the federal bk court which says 6-years. “Accordingly, the Court finds that LVNV's claim is time barred pursuant to T.C.A. § 28-3-109(a)(3)”. In re Shippy 2016 Bankr. Lexis 916 (Bankr. M.D. Tenn. March 23, 2016). I don’t know how default on an open account could in any way fall under the 3-year SOL. Do you see it? 28-3-105. Property tort actions - Statutory liabilities. The following actions shall be commenced within three (3) years from the accruing of the cause of action: (1) Actions for injuries to personalor real property; (2) Actions for the detention or conversion of personal property; and (3) Civil actions based upon the alleged violation of any federal or state statute creating monetary liability for personal services rendered, or liquidated damages or other recovery therefor, when no other time of limitation is fixed by the statute creating such liability.
  6. Section 28-3-105 only references personal or real property. You would have to show that a credit card is considered personal property under the statute. Just call a TN consumer attorney and ask about the SOL. That would be the easiest way to get an answer. You would also be more likely to get an accurate answer.
  7. What TN law supports that a credit card is a personal line of credit? What TN law says the SOL for a personal line of credit is 3 years?
  8. TILA defines an “open-end credit account” in 15 USC § 1602j, however the terms defined in TILA only apply to that Act. § 1602b (a)The definitions and rules of construction set forth in this section are applicable for the purposes of this subchapter. Nowhere does the Act imply that states must adopt or accept the definitions for the any purpose other than that for which TILA was enacted. Here is the stated purpose of the Act. 15 USC § 1601a Informed use of credit “The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices.”
  9. I understand. If he is sued, he will have a defense and case law to support it. In fact, I guess he could throw in an FDCPA counterclaim.
  10. The OP did not want to know if he was outside the SOL for KY. He did not ask about the 5-year KY SOL. Here is his first post. I have read that some states KY in particular has a SOL for open contracts of 5 years - unless the state of the suing bank has a lesser amount. So for instance BofA is located in North Carolina so a positive defense to a lawsuit in KY for a BoA debt that is 4 years old would be that it is timebarred as North Carolina SOL is 3 years. Can anyone confirm that JPM Chase would fall under New Hampshire? New Hampshire also has a SOL of 3 years so the timebarred date for KY lawsuits by JPM would be 3 years. Anyone have any info on this? Am I way off here? TIA He specifically asked about the New Hampshire SOL of 3 years applying to a lawsuit brought in KY. He then requested information on that topic. We responded with the appropriate information that addressed his request.
  11. Whichever state the cardmember agreement says governs the account.
  12. Yes. That is what I pointed out in the following: ”It has to do not only with where the defendant was living, it also has to do with the law of the state that governs the cardmember agreement (which is usually the corporate headquarters).”
  13. It doesn’t matter that It was a class action suit. It’s the context of the borrowing statute discussion that matters. Abel is important because, due to the language in the borrowing statute, the court’s focus was on WHERE the injury accrues. The statute specifically states “WHERE it accrued”. The KY Supreme Court stated, “More significantly, the deficient payments were received in Kentucky where all Appellants resided and the injurious consequences of the alleged wrongful conduct occurred in Kentucky.” Right there, the court ruled that the injury accrued where the payments were received. In addition, the KY federal court in Conway v. Portfolio Recovery also referenced Abel when discussing the KY borrowing statute in relation to Portfolio filing a time-barred lawsuit. Here are just 2 of the quotes from that decision. . “However, a recent Kentucky Supreme Court case relied on the cases cited above in addressing the issue of where a cause of action occurs. See Abel v. Austin,411 S.W.3d 728 (Ky.2013).” Again referring to Abel, the federal court stated: ”The court reiterated that where an action accrues is ‘inextricably intertwined with when it accrues,’".
  14. I think I pointed this out, as well.
  15. It has to do not only with where the defendant was living, it also has to do with the law of the state that governs the cardmember agreement (which is usually the corporate headquarters). The first line line of the statute states “Cause of action barred here if barred where it accrued.” The only way a borrowing statute can be applied is if the cause of action “accrued” outside the consumer’s home state. From the KY Supreme Court: It is clear however that where an action "accrues" is inextricably intertwined with when it accrues. Abel v. Austin,411 S.W.3d 728, 736 (Ky.2013). Appellants' causes of action accrued when the individual checks, allegedly deficient by misappropriated sums of money, were sent to them. Where that happened was Kentucky, not Alabama. Therefore, Appellants' causes of action accrued in Kentucky, not in Alabama. KRS 413.320 cannot be applied in this instance to compel the application of Alabama's statute of limitations. Appellants' claims are governed by the Kentucky statutes of limitations. Id at 737.

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