[eokorie]

I am being sued in Chicago Circuit COurt of Cook County, minicipal department, first district, by a law firm that says they represent Midland Funding. They are Blatt, Hassenmiller, etc.

Their complaint simply states that I had a credit card, promised to pay, and didnt. Some woman claims to have knowledge. They said I had a balance on 12/31/00.

I filed an answer, requesting more information, and they never responded. I asked the judge to have them validate the debt. They never did.
We now have a trial date for December. I thought that I should file a motion to strike the womans statement. And a motion to compel them to respond to my filed answer. Am I going in the right direction? Should I file a motion for discovery instead. Is it possible to file a motion to dismiss based on their lack of evidence? Is there somewhere I can find procedural or case law for illinois. I have searched and its pretty hard. Please advise...Thank you

[Hedwig]

What is the Statute of Limitations for a credit card debt in Illinois? If it's out of SOL, that's all you need.

[eokorie]

Looked into that. It's ten years, unless they say it's an open -ended account then it's five. Prob is they haven't given me anything but the complaint. I don't know what they are talking about, or any dates, but I believe my mother had some credit cards in my name in 1998. I was in school.

I planned on filing a motion to strike this affiant's statement. Then a motion for discovery. But I'm still working on the wording for both motions.

Any ideas?

[Hedwig]

If it's a credit card, it should be an open-ended account I believe. It doesn't matter what THEY say, it matters what the law says.

Again, you might want to check with the Consumer Affairs Office, or whatever it's called. If it's an open-ended account, then it's past the SOL and all you need to do is go to court to assert the affirmative defense. You just need to research your state laws and make sure that a credit card is an open-ended account.

Don't rely on the opponent for information. Of course they're going to say SOL is 10 years. You need to prove that it's five, and that this debt has passed the Statute of Limitations.

[eokorie]

I included in my answer a request for admission. That they admit or deny that a revolving account is an open account as defined under the Truth in Lending Act. That they admit or deny that the applicable statute of limitations for an open account is five years under 735 ILCS 5/13-205. They never responded. Should I repeat those requests for admissions in my motion for discovery. I am currently filing a motion to strike their statement but I'm having trouble with the wording. I believe it's hearsay, but where can I find the right law to quote.

[Hedwig]

Don't ask them to admit or deny. Go do some research and find out. If credit cards are considered open-ended UNDER YOUR STATE'S LAWS, then you would ask for the case to be dismissed with prejudice because it's out of statute.

Since I'm not a lawyer, and haven't taken a case to court, I don't know exactly what you would file. But once you find out the SOL, someone else can help you with the particulars.

You never rely on your opponent to make your case for you. You need to do a little digging here. Go to a library that has the state code and do some research.

[Hedwig]

You said they say you had a balance 12/31/00. When did this go delinquent? It may be over the ten-year period, also.

But if it's an open-ended account, you don't need to worry about anything else. The fact that it's out of statutue is all you need.

That one piece of information is the single most important thing you need to know right now. Does Illinois consider a credit card an open-ended account?

[eokorie]

That was what I looked into first. I did several web searches and called the attorney general's office who doesnt answer those questions. As far as I know the answer is no, they are not considered open ended. I can't figure out where else to look and also the complaint only lists that one date. I don't know when it went delinquent (no knowledge of the account).

Originally Posted by Hedwig

You said they say you had a balance 12/31/00. When did this go delinquent? It may be over the ten-year period, also.

But if it's an open-ended account, you don't need to worry about anything else. The fact that it's out of statutue is all you need.

That one piece of information is the single most important thing you need to know right now. Does Illinois consider a credit card an open-ended account?

[Enigma]

Do you have a copy of the credit card agreement? Does the agreement have a Choice of Law provision?

[eokorie]

I have nothing except their complaint. Not on my credit reports. May have been something I disputed several years ago

[Enigma]

Originally Posted by eokorie

I have nothing except their complaint. Not on my credit reports. May have been something I disputed several years ago

Do your local rules allow for Discovery?

[Pale Rider]

Found this in a google search.

credit card s.o.l - FreeAdvice Forums

Read post #6. I don't have any idea if the person is right, or if that strategy is correct. I would do some research to see if it is, if I were in IL.

[roybean]

Is this the court you're in?
Circuit Court Cook County

[eokorie]

Yes circuit court cook county.
ANd yes they do allow for discovery.


Was thinking of filing motion to dismiss based on SOL.

[eokorie]

I followed that link you put up and here is what I found.



“[T]he issue is not whether the identity of [the parties] can be readily
ascertainable from subsequent writings, the issue is whether the
identity of [the parties] can be readily ascertained” from the alleged
written contract “so as to avoid the resort to parol evidence.” Brown,
147 Ill. App. 3d at 940.
If testimony is necessary to establish any of these elements, the
contract is treated as oral, and subject to the five-year statute.

[Pale Rider]

Originally Posted by eokorie

I followed that link you put up and here is what I found.

“[T]he issue is not whether the identity of [the parties] can be readily
ascertainable from subsequent writings, the issue is whether the
identity of [the parties] can be readily ascertained” from the alleged
written contract “so as to avoid the resort to parol evidence.” Brown,
147 Ill. App. 3d at 940.
If testimony is necessary to establish any of these elements, the
contract is treated as oral, and subject to the five-year statute.

I have no idea what any of that means. I was very interested in the "account stated" part. Are they trying to show an account stated?

[Pale Rider]

What is an account stated?

“An account stated has been defined as an agreement between parties
who have had previous transactions that the account representing those
transactions is true and that the balance stated is correct, together with a
promise, express or implied, for the payment of such balance." McHugh
v. Olsen, 189 Ill.App.3d 508, 514, 545 N.E.2d 379 (1[/font]st Dist. 1989).
[font=Times New Roman]
"An account stated is merely a form of proving damages for the breach of
a promise to pay on a contract." Dreyer Medical Clinic, S.C. v. Corral,
227 Ill.App.3d 221, 226, 591 N.E.2d 111 (2d Dist. 1992).

A cause of action for an account stated therefore requires allegation and
proof that (1) there was a contract between the parties, such as a credit
card agreement or a contract for the sales of goods or services, Dreyer,
227 Ill.App.3d at 226-27, (2) a statement of account was sent to the party
sought to be held liable, and (3) the statement was agreed to, expressly or by implication. Thomas Steel Corp. v. Ameri-Forge Corp., 91 C 2356,
1991 WL 280085 (N.D.Ill., Dec. 27, 1991). Agreement may be inferred
from payment or retention for a substantial period without objection.

However, both the basic agreement and the rendition of an account must
be proven. “[T]he rule that an account rendered and not objected to within a reasonable time is to be regarded as correct assumes that there was an original indebtedness, but there can be no liability on an account stated if no liability in fact exists, and the mere presentation of a claim, although not objected to, cannot of itself create liability. . . . In other words, an account stated cannot create original liability where none exists; it is merely a final determination of the amount of an existing debt.” Motive Parts Co. of America, Inc. v. Robinson, 53 Ill.App.3d 935, 940, 369 N.E.2d 119 (1st Dist. 1977).

Thus, a cause of action for an account stated is founded on both (a) the
underlying contract and (b) the statement of account sent to the debtor and agreed to by the debtor. Both must be attached.

http://www.edcombs.com/CM/Custom/col...ndefense07.pdf

[Pale Rider]

Statute of Limitations
A five-year statute of limitations applies to bringing such an action. See Pope v. Kaleta, 90 Ill. App. 2d 61, 234 N.E.2d 109 (1st Dist. 1967).

http://files.illinoislegaladvocate.o...%20Dismiss.rtf - motion to dismiss

Illinois Pro Bono | Defending Hospital Collection Cases - Motions to Dismiss

[Pale Rider]

How Do I Defend A Credit Card Collection Lawsuit? : Bankruptcy Law Network

Defending Lawsuits Brought By Debt Collectors : Bankruptcy Law Network

[eokorie]

Wow Pale Rider. You put a lot of time into that research. Thanks. You all are so cool.The thread I sent was basically saying that if they need to use any testimony (account stated) other than a written contract then the SOL is five years. I will file my motion to dismiss on Monday and let you know what happens.