Ky SOL case law - Need i with KRS 413.120

[cuthatcard]

I have been served by Asset on account that is due to fall off of my reports in 3 months. I disputed this account back in the summer, Eq deleted, EX, and TU verified. I have filed answer, affimative defense of SOL. They state my Date of last payment was in 2001 , March. Everywhere I read, Ky sol for credit card debt says 5 yrs, however, it seems Ky statutes are not as clear as others. I have sent Roggs, addmissions and production of docs. to their atty. I haven't heard anythin back yet.
I have denied, and do deny, that this account is mine. I'm thinking of filing a MSJ, but would like to see some case law as I think they will say this is a written contract, 15 yrs SOL.

Just can't find any!! Help

Heading suppossed to say "it" with KRS 413.120 not "i"...sorry

[Enigma]

Do you hafve access to Westlaw or other legal research tools?

[cuthatcard]

Just the Ky revised statutes and some supreme court cases that is posted on-line. That's about it.

[Enigma]

Try LexisNexis – Innovative Solutions for Knowledge-Driven Professionals and www.westlaw.com

Each have al la carte research tools.

[hannah]

I looked all through Lexis for this and found nothing but I am tired so perhaps I overlooked something. That said, a written contract in KY must be in writing. They must have your signature on something acknowledging the debt or it falls into the 5 year SOL. Will have caselaw for you late tomorrow.

[VexatiousLitigant]

If it makes you feel better, I'm pretty sure KY has laws on the books prohibiting garnishment from assignees of an account.

[cuthatcard]

Quote:

Originally Posted by hannah I looked all through Lexis for this and found nothing but I am tired so perhaps I overlooked something. That said, a written contract in KY must be in writing. They must have your signature on something acknowledging the debt or it falls into the 5 year SOL. Will have caselaw for you late tomorrow.

Thank you so much...

[hannah]

Ok. Found what you need and a bit more. If they do not have your signature on a contract the debt is controlled by K.R.S. 413.120 which I have attached as well as caselaw to back it up and the SOL is 5 years.

Something else I found in that caselaw was this:

Quote:

One who voluntarily pays the obligation of another cannot in an action like this recover of the debtor the sum so paid. City of Louisville v. Anderson, 79 Ky. 334; Noble v. Williams, 150 Ky. 439, 42 L.R.A. (N. S.) 1177, 150 S.W. 507; City of Morganfield v. Wathen, 202 Ky. 641, 261 S.W. 12. One cannot voluntarily become the creditor of another so as to enforce his claim in a court.

You might include this as the JDB obviously purchased the alleged account in order to become your creditor. Don't know if it will work but I like it.

Further, open accounts are defined federally by TILA and all credit card accounts are open accounts. You however didn't specify what type of card this was...is it a merchant card or credit card. I know you said credit card but some don't know the difference.

[hannah]

I have read and re-read this above attached caselaw. In addition to the SOL, I would argue:

Plaintiff voluntarily paid the OC for Defendant’s account in order to become Defendant’s creditor. The OC then zeroed out Defendant’s account thereby indicating that the Defendant no longer owes them any amount of money. Plaintiff was unable to collect upon the account by other means and then filed this suit against Defendant which is illegal under Kentucky law and it is illegal because “One cannot voluntarily become the creditor of another so as to enforce his claim in a court.” and "One who voluntarily pays the obligation of another cannot in an action like this recover of the debtor the sum so paid." City of Louisville v. Anderson, 79 Ky. 334; Noble v. Williams, 150 Ky. 439, 42 L.R.A. (N. S.) 1177, 150 S.W. 507; City of Morganfield v. Wathen, 202 Ky. 641, 261 S.W. 12.

The way I am reading this would mean they could only collect the amount they paid for the debt and could not sue for it.

If I am on the wrong track with this, please someone else jump in.

[VexatiousLitigant]

Interesting theory, but I'm about 100515% certain it will get rejected by the trial court.

[hannah]

Quote:

Originally Posted by VexatiousLitigant Interesting theory, but I'm about 100515% certain it will get rejected by the trial court.

Because....?

[VexatiousLitigant]

Disclaimer: I have not read the case, but I feel certain in my assumption that the facts of that case do not line up with what's going on here. We're not talking about a JDB satisfying the debt with the OC in order to become his new creditor (my assumption), but them taking ownership of the debt via assignment.

[hannah]

Quote:

Originally Posted by VexatiousLitigant Disclaimer: I have not read the case, but I feel certain in my assumption that the facts of that case do not line up with what's going on here. We're not talking about a JDB satisfying the debt with the OC in order to become his new creditor (my assumption), but them taking ownership of the debt via assignment.

I am not sure that you under the caselaw. Do read the caselaw, other cases based on it and then tell me it doesn't apply.

[cuthatcard]

It is a bank issued credit card.

[cuthatcard]

I sent the "Plaintiff" my filed answer along with roggs., addmissions, and production of documents, signed for by them 30 days ago today. I gave them 30 days and have not heard a word. Should I file for dismissal at this time or give them another week so the court will see I allowed them more than ample time to respond. Also, what would "normally"come next from the plaintiff in this situation.? Would they file a motion for summary judgement, answered my roggs. etc, sent me roggs, addmissions, etc.?
Basicaly, what has happened so far is they filed a complaint and I was issued a summons on a bank isssued credit card account in the middle of November. I answered, soon thereafter (had 20 days) and as stated above, have heard nothing else. 45 days have elapased since their filing.
I disputed this account back in the summer, was deleted from 1 of the 3. It is to fall of reports in April as the 7 yrs are up then.
I have printed off what Hannah found and have formed an "rough" defense with it. I have been provided no written documentation, nothing signed by me, nor signed by anyone else!

Just getting nervous as my states' statutes are not nearly as clear on these credit card accounts as many other states are.

[hannah]

You did file your answer with the court, did you not?

As for your discovery, write a letter to the plaintiff's attorney and ask nicely for them to answer your interogs and other discovery. If they do not respond, you will need to file a motion to compel with the court. Give them 10 days to comply with your nice request.

[Nashvillej]

Quote:

Originally Posted by VexatiousLitigant Interesting theory, but I'm about 100515% certain it will get rejected by the trial court.

Is that all? I'm 200000% sure.

[cuthatcard]

Yes, I did file my answer with the court on Nov 25th. Stamped by the clerk. Sent the plaintiff (Court Clerk) stamped copy of the answer, certified mail, return receipt, the same day.

[VexatiousLitigant]

Quote:

Originally Posted by Nashvillej Is that all? I'm 200000% sure.

Trying to be conservative.

[hannah]

Quote:

Originally Posted by VexatiousLitigant Trying to be conservative.

Nothing ventured, nothing gained and I'm infinitely sure of that.

[cuthatcard]

Through discovery, I asked for the written contract and Asset' atty's have already motioned for 30 more days to come up with it. I objected, court allowed, so about a week to go and their 2nd 30 days will be up. I asked for addmission that a CC is oral, they denied, said written, so that is what they will try on if they find an agreement, contract.....SOL )open end) on CC in KY for 5 yr is hard to find. On written contracts, there is a lot, but nothing about CC's.

Just an update ....

[VexatiousLitigant]

Quote:

Originally Posted by hannah Nothing ventured, nothing gained and I'm infinitely sure of that.

I don't disagree here, but we both know what the proper outcome should be.

[hannah]

Quote:

Originally Posted by VexatiousLitigant I don't disagree here, but we both know what the proper outcome should be.

I know that but it's like throwing spaghetti on a wall and seeing which strands stick. It's an interesting theory right now. Doesn't mean that in the future it couldn't win in a court of law with the right judge. And wouldn't you love to see the face of a typical collection attorney looking at this argument?

[cuthatcard]

Quote:

Originally Posted by VexatiousLitigant I don't disagree here, but we both know what the proper outcome should be.

I get from the inference that the proper outcome should be that the defendant should be ruled against, in favor of the plaintiff. The defendant, me, says that this alledeged debt is not mine. I disputed it nearly a year ago when I first started my credit repair, and saw it on my reports. I never was aware of any debt I owed to this CA or this OC for that matter. All communications I have received from the CA have been going to address that is not mine and never was. I notified the CA of this as we are in litigation and my discovery request were going somewhere else. They are stating some personal info that is wrong as well, that I have not brought up, yet. They, not me, should report correct information on an alledged debt.
I should not have to prove I am correct, they should have to prove that this is mine and I should pay it.
I have asked for a contract, agreement or any documentation that this my debt. Nothing, not one thing from the CA! Not a sales slip, agreement, old statement, nothing.
I am not going to just lay down and let them run over me as 90% do and let them get a default judgement. I am doing this on my own, with help from some of you guys.

It may well come that I am ruled against, but the knowlwedge I have learned here has been well worth it.....

[hannah]

Look back over the rules of evidence and see what constitutes parol evidence. Yes, they should have to prove it. Have they offered any statements from the OC into evidence or is it all just self-serving "affidavits" from someone in their own office?

What evidence have they submitted to the Court?