A skilled and experienced lawyer can use these defenses to have credit card cases completely dismissed.
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). Any credit card accounts upon which no payment has been made for more than five years old are simply uncollectible.
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 proof that it has title to the account, thus 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 these cases 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 person who signed the affidavit.
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