Ky SOL case law - Need i with KRS 413.120

cuthatcard · 12-12-2007, 09:46 AM

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 · 12-12-2007, 10:03 AM

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

cuthatcard · 12-12-2007, 11:11 AM

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

Enigma · 12-12-2007, 11:09 PM

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

Each have al la carte research tools.

hannah · 12-13-2007, 05:34 AM

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 · 12-13-2007, 09:24 AM

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

cuthatcard · 12-13-2007, 10:11 AM

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 · 12-14-2007, 01:37 PM

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 · 12-14-2007, 02:54 PM

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 · 12-14-2007, 08:05 PM

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

hannah · 12-14-2007, 08:13 PM

Quote:

Originally Posted by VexatiousLitigant

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

Because....?

VexatiousLitigant · 12-14-2007, 11:43 PM

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 · 12-15-2007, 12:00 AM

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 · 12-15-2007, 11:51 PM

It is a bank issued credit card.

cuthatcard · 12-28-2007, 02:19 PM

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 report