[rubyruby27]

I am posting this info to get all the legal eagle minds opinions etc.

Many months ago Fraudfighter post on florida debtor an MSJ that was written by an attorney based on this theory in Florida, I believe they won but I am not sure.

GulfBreeze posted this on FD, I would think this could be very beneficial to those who have long SoL's in thier states, what do you think.

FOR ANYBODY BEING SUED BY CAPITAL ONE

if they submit a copy of the terms and agreement, look for the part that says VIRGINIA LAWS APPLY no matter where you reside... then you could argue that the following would then apply.....(because if they use the terms, then the terms written in it MUST apply)

OPEN ACCOUNT UNDER VIRGINIA LAW
STATUTE OF LIMITATIONS ON AN OPEN ACCOUNT
Is an Open Account the same as a contract? Is the statute of limitations different for the two?

ISSUES
Determining whether an obligation is based in contract, Open Account or some third category (quasi-contract, oral contract or implied contract) is a daunting task because of an almost complete lack of definition of this term in the Virginia Code and common law.
Yet the Warrant in Debt [Form DC 412] calls for the Plaintiff to state whether the claim is “[ ] Open Account [ ] Contract [ ] Note [ ] Other (EXPLAIN).”

The judge needs to know this information to rule on the claim, including the appropriate statute of limitations.

WHAT IS A CONTRACT?
The Fairfax County Circuit Court held that in order to constitute a written contract, the essential terms of the agreement must be obvious on the face of the writing without recourse to parole evidence. The Virginia Supreme Court has stated that "until all understand alike, there can be no assent, and, therefore, no contract."

Virginia courts have further discussed >service= contracts and have found "certainty and completeness" as essential elements of that type of contract. The essential elements include the:
1. nature and extent of the services to be performed,
2. person to whom the services will be rendered, and
3. compensation to be paid for the service.

An Open Account usually lacks: 1.) Specific mention of the nature and extent of the goods or services (medical treatment, hardware, etc.) to be purchased or performed except in a very general way and; 2.) There is no mention of the nature of charges or the payments required.

Open Accounts usually lack certainty and completeness. For instance, many give the beginning time but there is no contemplated ending date, simply because the agreement is open-ended; many specify the goods or services only in the most general terms; many may be signed by only one of the parties; and some make no mention of a contract but like in some medical treatment documents, may refer only to a Apolicy@ regarding financial responsibility.

Virginia common law, as well as the common law of other states, has drawn a distinction between contracts and Open Accounts. Whereas a contract envisions a single, defined interaction between parties, an Open Account is essentially a relationship in which a Aseries of individual but related transactions@ take place between the offeror and offeree.

The Supreme Court of Virginia settled the matter of first impression by distinguishing between running accounts that operate under a single continuing contract and Open Accounts. The plaintiff-suppliers asserted that the builder’s initial application for credit constituted a single contract between the supplier and builder that encompassed all subsequent orders and deliveries of building materials. Under this view, the supplier could file a mechanics lien against any property that benefited from the material supplied in the orders placed by the builder, as long as the lien was filed within the statutory period of ninety days after the last delivery.
The defendant-builders, however, maintained that the initial credit application served to create an Open Account. Pursuant to this legal theory, there was no single continuous contract formed between the supplier and builder. Rather, each order and delivery of supplies constituted a separate contract. Therefore, the ninety-day statutory period to file a lien would begin to accrue upon the breach of each delivery contract.

The Virginia Supreme Court found for the builders, holding that in each instance, the initial credit application served to create an Open Account rather than a continuous contract. In doing so, the Court noted that the applications did not require the builders to purchase materials nor did they obligate the suppliers to provide materials in any definite time.

In a case of real Open Account, an agreement would not obligate a vendor to provide goods or services or a purchaser to seek goods or services from that vendor. Further, there would be an understanding that some type of line of credit was being extended to the purchaser for the purchase(s).

OPEN ACCOUNTS FOR MEDICAL SERVICES
A number of states classify a patients relationship with a physician as an Open Account. Perhaps the most prominent is Louisiana that has statutorily defined an Open Account to "include debts incurred for professional services, including, but not limited to legal and medical services." Common law in Louisiana has further defined Open Accounts as existing in "a situation where there had been running or current dealings between the parties and the account had been kept open with the expectation of further dealings."

In determining whether a relationship may be classified as an Open Account, Louisiana courts consider whether:
- there are other business transactions between the parties;
- a line of credit was extended to one party;
- there are "running or current" dealings; and
- there are expectations of future dealings.


A decision by the Circuit Court of Richmond is illustrative of how Open Accounts may be established in the context of medical services in Virginia. In this case, Chippenham Hospital sought to recover for medical fees and hospital charges incurred by Mr. Shelton when he remained in the hospital for ten days past the twenty-one day period covered by Medicaid.

In finding for the hospital, the Richmond Circuit Court stated that by presenting himself to the emergency room at the Hospital, Mr. Shelton Aimpliedly agreed that if medical treatment was rendered, he would pay for it. Using this reasoning, the court found an implied contract.
Therefore, as to Mr. Shelton, the patient, we have a contract to pay for medical treatment on an open account, and, of course, the three-year statute of limitations applies to him.

There are clear distinctions between written contract, oral contract, quasi-contract or implied contract and Open Accounts but since some of the definitions are not specified in the Code of Virginia, it is up to the individual to research the operative case law to make these distinctions.
STATUTE OF LIMITATIONS
There may be a significant difference in the appropriate Statute of Limitations applied to different types of documents. If a document is an Open Account, as differentiated from a traditional written contract, a Plaintiff cannot avail itself of the five-year statute of limitations under the Code of Virginia (1950) Section 8.01-246(2.).


The statute of limitations for an Open Account requires a reading of three Virginia Code Sections. First, the Code of Virginia (1950) Section 8.01- 249(8.) states that:
In actions on an open account, [the accrual period begins] from the later of the last payment or last charge for goods or services rendered on the account.

The legislature carved out a specific accrual time for an Open Account thereby giving plaintiffs a major time advantage in pursuing their claim. By so doing, and not addressing an Open Account in ' 8.01-246, the legislature thereby considers an Open Account to be distinct from a written contract, oral contract quasi-contract or implied contract. To bolster this position, the Supreme Court recognizes (as stated above) that an Open Account is distinct from a contract by providing a choice of AOpen Account@ or AContract@ on a Warrant in Debt.

Therefore, one can argue that you look to the limitation Acatchall@ statute, ' 8.01-248, and use the two-year limitations period.

This is a situation where the law has failed to keep up with the substantial increase in the types of on-going services now being offered where contractual basics need to be reduced to writing. Clarity in the definition of an Open Account and the statute of limitation for an Open Account would substantially narrow this gap.

BURDEN
The burden is on the Defendant to plead statute of limitations.

SUPREME COURT RULE
Rule 3:16 General Provisions as to Pleadings.
(e) An allegation that an action is barred by the statute of limitations is sufficient without specifying the particular statute relied on.

[Astros]

wow, I believe that would be VERY difficult to argue in a court of law. What would be the authority to do so? In other words, how would I know that my state would allow arguing another state's rules? Where do you begin to look?

[hannah]

Originally Posted by Astros

wow, I believe that would be VERY difficult to argue in a court of law. What would be the authority to do so?

Most states have a statute that allows the court to use the laws of another state if the contract or agreement between the two parties allows for it. In this instance the cc agreement of Crap One says you agree to use VA law. I think it's a grand argument and am wondering if it has been used. If so, what the outcome?

Originally Posted by Astros

In other words, how would I know that my state would allow arguing another state's rules? Where do you begin to look?

It would be in your state code.

Any of you Texans know if Texas allows for it and if so, what the statute is?

[jlynn]

Check lawsuits against AOL. Seems like they are the ones that always claim similar.

[FixinThings]

Could be intersting... CrapOne arguing that their contract is invalid to take advantage of the longer SOL threshold in another state.... Could get a little messy.

[centex]

Also remember that many contracts have severability clauses, which could create the situation of the Virginia clause being removed without invalidating the remainder of the Terms and Conditions that served to create the underlying contract.

It was an argument that I was set to attempt had CrapOne ever deigned to take me on...rat bastards never would and their third parties did not want any part of an identity theft issue. Yeah, I know...once the ID theft issue was addressed, the Court would treat it like a typical appellate decision and go no further having already ruled in my favor.

[Astros]

Well Crap!

I don't have any credit card debt with Crap One, but figured I would look through texas laws and see if it would work for another creditor, lets say Delaware as well. I guess I can't pick and choose which ones I want it to work on though huh?

[FixinThings]

Originally Posted by centex

Also remember that many contracts have severability clauses, which could create the situation of the Virginia clause being removed without invalidating the remainder of the Terms and Conditions that served to create the underlying contract.

Absolutely right on that, and I think CrapOne has a severability clause in their contracts. (Micro print on the final page, I am sure.)

But...

It is my understanding that the severability issue arises when a Court makes the decision about the legality of a specific clause or clauses.

A plaintiff arguing that terms of his own, self-serving contract are not valid does raise questions regarding the remainder of that same self-serving contract. The plaintiff has difficulty arguing "valid contract" if he is contending that parts of it are not.

The point, I am sure, would not go unnoticed by the Court.

How effective it would be in defense is another question.

[rubyruby27]

This was posted by Fraud a long time ago, this shows how to use this agreement against them.


Here's an example MSJ written by a FL lawyer. It gives you an example of the style to construct SJ arguments using only the PLTF's pleadings and exhibits against them to show conclusively that the DEFT is entitled to SJ, without any admittance of DEFT liability.


Defendant moves for summary judgment on the grounds that the pleadings and papers filed in this action show that defendant is entitled to judgment as a matter of law, as Plaintiff failed timely to file its claims within the applicable limitations period.

MEMORANDUM OF LAW IN SUPPORT OF DEFENTANTS MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT.

It is undisputed that the cause of action in this case accrued, and therefore the limitations period started to run, in 01/01, yet this action was not filed until 03/05 more than four years later. (See penultimate page of plaintiff’s motion for summary judgment and memorandum of law)

Section 95.11(2)(b) of the Florida statutes provides, in relevant part, for a five-year limitations period for filing an “action on a contract, obligation, or liability founded on a written instrument.” However, Section 95.11(3)(k) provides, in relevant part, for a four-year limitations period for filing an “action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, ware, and merchandise, and on store accounts.”

The Complaint alleges three Counts. Count One, styled “Breach of Contract,” alleges breach of “a written agreement between the parties.” Count Two is styled “Account Stated.” Count Three is styled “Quantum Meruit.”

Section 95.11(3)(k)’s four-year limitations period obviously applies to counts Two and Three, and so those Counts are time-barred.(1(on bottom of page)) However, in the memorandum filed in support of its motion for summary judgment, plaintiff argues that Section 95.11(2)(b)’s five-year period applies to Count One. That argument requires the assumption that the “Cardmember Agreement” that was attached as an exhibit to plaintiffs motion and Memorandum constitutes a “written instrument” under Section 95(2)(b). However that “Cardmember Agreement” (an inexplicable different version of which was attached to the Complaint) was not executed by the defendant or anyone acting on her behalf and so is not a legal “written instrument” on which an action can be “founded.” thus Count One is governed by Section 95.11(3)(k)’s four-year limitations period and is time-barred.

If, arguendo, one or the other unsigned “Cardmember Agreement” pamphlets were to be deemed to be a binding contractual document under which the plaintiff could bring an action, then neither Section 95.11(2)(b)’s five-year period nor Section 95.11(3)(k)’s four-year limitations period would govern. That is because both versions of the “Cardmember Agreement” expressly provide that the Agreement will be governed by the laws of the State of Delaware, and the applicable limitations period under Delaware law is only Three years. Title 10, Section 8106 of the Delaware Code provides, in relevant part, that:

----------------------------------------
See Colorado National Bank of Denver v. Story, 261 Mont. 375, 862 P.2d 1120 (Mont. 1993) (“account stated” claim is not one “founded upon a written instrument.”)
----------------------------------------

No action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations . . . Shall be brought after the expiration of 3 years from the accruing of the cause of such action.

In Delaware law, “this language has consistently been applied to actions alleging a breach of contract with the exception of those under seal.” Consolidated Rail corporation v Liberty Mutual Insurance Company 2002 WL 32080503 (Del. Super.) at *4. In the instant case, there is no evidence of a formally executed contract “under seal” the requirements for which are strictly enforced under Delaware law, Id. at *4-*5. Rather, the instant action appears to be more akin to one “based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations.” Title 10 (double s sign) 8106, DEL.CODE, supra. Thus under Delaware law all three Counts of the instant Complaint would be time-barred. Defendant is therefore entitled to summary judgment as a matter of law.

[rubyruby27]

I hope this helps, I have been seeing more and more post esp about Cap One. If this can work for Cap it can work for any OC/JDB in any state.

I don't think it has anything to do with the state laws it has to do with the contract saying they have the right to choose, so if they have the right you have the same rights.

I think that is correct, at least I have read some appeals where it says, whats good for the goose its good for the gander.

[Astros]

wouldn't that be a Motion for Judgment on the Pleadings?

[rubyruby27]

NO, this is an example of how to write a MSJ in Florida. Each state has different rules, that why you need to know your state rcp's.

[Astros]

Originally Posted by rubyruby27

NO, this is an example of how to write a MSJ in Florida. Each state has different rules, that why you need to know your state rcp's.

Yes, I know, but if you file a Motion for Judgment on the Pleadings, instead of an MSJ, then you are saying:

Judge, look at the pleadings and nothing else.

If you file an MSJ, you could be asking for trouble if they submit some sort of proof against you and the judge rules against you. Just a hunch.

[rubyruby27]

Astro,

Got me on that one, I never look that up before, so I haven't the foggist if that is possible.

[Aftermath]

Just to insert a SOL question, so I can start to research what I'll be dealing with:
if the debt starts out in state A and the debtor then moves to state B and there is no provision in writing which says whether the laws of A or B or V shall apply to a lawsuit...whose SOL would apply to an action against the debtor?
Would it be the state where the debtor now resides or the state where the debt was incurred?
Would it be different from state to state in that each state would have its own opinions on the matter?
Thanks... Oh, I am not being