If a charged off debt then is still collectible, how do I go about finding out the statute of limitations on same. These cards

Asked over 1 year ago - Jacksonville, FL

are well over 5 years old and I obtained them while living in Virginia.

Attorney answers (4)

  1. Robert Jason De Groot

    Pro

    Contributor Level 20

    Answered . 5years is the sol in Florida on contracts. "Charged off" is a term of art used by banks for a variety of reasons. The 5 years starts running upon default.

    R. Jason de Groot, Esq., 386-337-8239
  2. Mark Hankins

    Contributor Level 17

    Answered . The statute of limitations typically runs from 30 days after the last payment that brought the account current, however for a Florida written contract subject to the 5 year limitations period, the statute is tolled for any payment that reaches principal or interest (which may not be reached if there are enough penalties and other charges on the account). The period of tolling is not specified--presumably it would be the amount of time until the next scheduled payment, but who knows? There's no case law.

    As for the statute of limitations, your credit card agreement may pick the law of a state other than Florida. Florida will honor that choice of law. Virginia credit card law (assuming it's a Virginia lender) has been ruled to have a 3 year SOL under Florida's Pincus case. The VA Atty Gen has opined that VA SOL is 5 years for a credit card, but that's fairly meaningless without a court ruling. There's even a good argument that VA credit card SOL is only 2 years.

    Other states that have shorter SOLs can introduce their own complications. For instance, some credit cards choose New Hampshire law, which has a 3 year statute of limitations. The problem is there is case law in New Hampshire that the SOL is perpetually tolled unless you are inside the state. This does not give a resident of the other 49 states equal protection, and that violates the Constitution.

    Finally, in Florida there is a case called Fernandes that applied a 4 year statute of limitations to credit cards that can be used at only one chain of stores even though issued by a bank. And although it's not an appellate decision, the logic of Fernandes was extended to bank cards in a Hillsborough County Case called Credigy v. Allen that applied the four year statute, and did not give such cards the same dignity as written contracts.

    Some credit card agreements had arbitration clauses in them, and although both the NAF and the AAA no longer arbitrate consumer credit cards, if the creditor can arbitrate in JAMS the statute of limitations may not matter. There is case law in Florida that commercial arbitration doesn't have to honor the statute of limitations--although courts have not yet been asked to rule on whether they will confirm an arbitration award issued in a case where a consumer raised an SOL defense in arbitration that would have prevailed had the matter been litigated in court.

    I'm only scratching the surface here. An attorney with detailed understanding of civil procedure as well as contract law would be needed in order to analyze whether your debts are in or out of statute.

  3. Dorothy G Bunce

    Pro

    Contributor Level 20

    Answered . The length of time for the SOL is different in every state, so check state laws. Because you made the debt in another state, the creditor may be able to elect which state to proceed in, either your current home or where the debt was made. The age of the debt is unimportant, what matters is when you last paid on the debt. Hope this perspective helps!

  4. Renee Mayerson Cannella

    Contributor Level 13

    Answered . The statute of limitations on Cc Debt Is the same in Florida as it is in Virginia, 5 years. As Attorney Bunce said the Statute runs from the date of last payment.

    Disclaimer: The foregoing answer does not create an attorney-client relationship with Attorney Cannella or her... more

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