In utah credit card is a written agreement??

[slonik]

Hello, everyone,

 

I am being contacted by collections agencies for providian credit card debt with DOLA of 04/2000. I called the NACA lawyer and he told me that I am still in SOL for this debt since in Utah credit card considered a written agreement and the SOL for written agreements is 6 years (for open accounts is 4). Is it true?!! I am on the verge of crying. Or the lawyer does not know what he is talking about?

What do you guys think?

 

Thank you,

Slonik

[zephyres]

bump

[pryan67]

in MOST states it's an open account...did you check WhyChat's site?

[Why Chat]

Hello, everyone,

 

I am being contacted by collections agencies for providian credit card debt with DOLA of 04/2000. I called the NACA lawyer and he told me that I am still in SOL for this debt since in Utah credit card considered a written agreement and the SOL for written agreements is 6 years (for open accounts is 4). Is it true?!! I am on the verge of crying.  Or the lawyer does not know what he is talking about? 

What do you guys think?

 

Thank you,

Slonik

<{POST_SNAPBACK}>

The lawyer is mistaken.

MOST " consumer lawyers" are VERY good at what they do with FDCPA violations etc., however, this is in the area of CONTRACT law, and your Utah lawyer is NOT familiar with the TILA rules and regulations.

 

Send the CA the SOL letter from my website, use the Utah statutes as posted on the Utah page of my website.

 

You MIGHT, if you wish, print out and send to your NACA lawyer the "SOL defense" page with supporting material from my website's " How To Answer A Lawsuit". However, in the past, I have NEVER seen a lawyer admit their lack of knowledge on the subject, especially when provided with "proof" from a layman who obtained it from the internet.

 

Also, Utah is a "closed border" State for CA's, check to see if YOUR CA is licensed to collect in Utah. If they are not, you can file a complaint with the Utah AG office and refer to the filing of the complaint in the SOL letter.

Edited December 3, 2005 by Why Chat

[slonik]

Thank you, Pryan67 and Why Chat,

I totally agree with you, I read the Truth in Lending Act definition of an open end account ,but I then decided to look at Utah Code and that is what I found and I do not know how to interpret it since I am not a lawyer:

 

From Utah Judicial Code :

78-12-25. Within four years.

An action may be brought within four years:

(1) upon a contract, obligation, or liability not founded upon an instrument in writing; also on an open account for goods, wares, and merchandise,

78-12-23. Within six years -- Mesne profits of real property -- Instrument in writing.

An action may be brought within six years:

(2) upon any contract, obligation, or liability founded upon an instrument in writing, then Utah Consumer Credit Code

70C-1-302. Definitions.

As used in this title:

(1) "Agreement" means the bargain of the parties in fact as stated in a written contract

(2) "Contract" means a document containing written terms and conditions of a credit agreement.

"Creditor" means:

b)any issuer of credit cards that extends either open-end credit or credit that is not subject to a finance charge and is not payable by written agreement in more than four installments; ,

 

but in the same title we have chapter 04 which talks about

 

Title 70C Chapter 04 Open-end Consumer Credit Contract

 

 

So, my question is a credit card application that I signed and the account agreement with Providian which I did not sign, but agreed to is a contract founded upon instrument in writing or not, what does “founded upon an instrument in writing” mean exactly? That is what I do not understand.

 

Also, I called Providian and they do not have the account agreement for me nor the date of last activity (I have it in my old credit reports) since they are now Washington Mutual, but they said that my account was governed by the laws of New Hampshire. So do I go by the laws of Utah or New Hampshire?

 

BTW, One collection agency that sent one letter to me is registered in Utah, but the other two who are not collecting, but on my credit report are not.

 

Thank you very much for all your help and ideas,

 

Slonik.

[Why Chat]

The term "contract in writing" and "written contract" do not mean the physical "writing" or signature, but refer to the contract terms themselves.

 

For it to be a binding contract "in writing" there must be FIXED terms and the contract must be signed by both parties, ( as in a "closed-end fixed term sales or loan contract). An open ended revolving credit card agreement does not fulfil the statutory requirements under standard contract law to be a "contract in writing" even if it WAS physically signed.

[BlueGhost]

(1) upon a contract, obligation, or liability not founded upon an instrument in writing; also on an open account for goods, wares, and merchandise,

 

TILA defines a CC as an OPen Account and would trump State Laws anyways...

 

But there is your 4 Year definition right there for a OPEN Account.

 

BG

[slonik]

Thank you as usually for clarifying! I guess I'll stop worrying now and go ahead with the plan.

 

Slonik