Mike Davis and Associates PC.

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Mike Davis and Associates PC.

The Law Is On Your Side!

  • By: Mike Davis, Esq.

DON’T THROW MONEY DOWN THE TOILET! FIGHT BACK AND WIN!

YOU HAVE DEFENSES!

THE STATUTE OF LIMITATIONS – 735 ILCS 5/13-205. In a credit card collection case, the statute of limitations is five years. Portfolio Acquisitions, L.L.C. v. Feltman, 391 Ill.App.3d 642 (1st Dist. 2009). If it has been more than five years since your last payment on a credit card account, the debt is uncollectible and the case will be dismissed.

CHAIN OF TITLE/STANDING – 735 ILCS 5/2-403. At the time the parties’ rights are determined, the evidentiary record must show assignments actually vesting title in the debt with the Plaintiff bringing suit. Bayview Loan Servicing, L.L.C. v. Nelson, 382 Ill. App. 3d 1184 (5th Dist. 2008). Often, a debt-buying Plaintiff cannot produce any documentation that would vest title, resulting in dismissal of the case.

WANT OF WRITTEN DOCUMENTS – 735 ILCS 5/2-606. 5/2-606 requires that if any claim is based on a written instrument, then a copy of that document must be attached to the complaint as an exhibit, and that if it is not attached then an affidavit explaining why not must instead be attached. Credit card collection suits claim interest and other terms set forth in a written document. Thus, the failure to attach any written agreement between the parties in this case requires dismissal. Velocity Investments, LLC v. Alston, 397 Ill.App.3d 296 (2d Dist. 2010).

WANT OF A FACT-BASED AFFIDAVIT – SUPREME COURT RULE 191. Testimony, whether in person or in the form of an affidavit, merely reciting that a witness has reviewed a file and that the file shows that the debtor is in default, is hearsay and competent records must be introduced after a proper evidentiary foundation is provided. Cole Taylor Bank v. Corrigan, 230 Ill.App.3d 122, 129 (2nd Dist. 1992). Many times debt buyers’ affidavits are mere conclusions and not based on any facts actually known to the affiant.

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