Expert: Michael Brotherton - 10/8/2007

Question
I received a summons to appear for pre-trial conference on a credit card debt. I went to court and said that the SOL had expired. I am in Florida by the way and the SOL for revolving credit is 4 years. However they are stating that it is 5 years for written contract. Which means that they filed just before the SOL had expired. There has been a lot of people saying that it is 5 years and others argue it to be 4 years. This account was opened in 1998 and I cannot remember if I signed something or if I did it over the phone. The last payment was received 9/26/02. They filed on 8/18/07. While in mediation last week the plaintiffs lawyer had received wrong dates saying the last payment was received on 6/26/02 and agreed to file for dismissal based on 5 year SOL. I then received a letter from them saying they had realized the mistake and will not be filing for dismissal and they are resetting the date.

Now I need to go back to court but I need more ammunition to fight this off.

If I did sign something then it would be considered a written contract, correct? However, wouldn't they need to provide proof that it is a written contract? Else wouldn't it fall under the 4 year verbal contract?

Answer
Credit cards are generally considered open accounts.

Quote from IhateDebt.com

The Federal Truth in Lending Act, Section 127 talks at length about credit cards as open accounts. However I have received some information recently indicating that some courts have ruled that credit cards are written accounts. So, as I'm not an attorney, I'm going to suggest that this area of the law seems to be fluid. Meaning that what your court rules may be based upon what evidence is presented and other factors.

Check with several attorneys in your area for their opinion concerning this subject. Find out if there are any precedents in Florida or any supreme court findings on this issue. If you can find any settled cases in your state defining credit card debt you may find your answer and can make this a basis for your argument. For now I would go with your credit card being an "open account" which would be 4 years SOL.