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Tuesday, January 12, 2010

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Jason Smither v. Asset Acceptance, LLC , a 16-page opinion, Judge Barnes writes:

Jason Smither appeals the trial court's grant of summary judgment in favor of Asset Acceptance, LLC (“Asset”). We reverse and remand.

Although Smither has raised a number of issues, the primary and dispositive issue in this case is whether the applicable statute of limitations barred Asset's action against him. * * *

The Illinois Appellate Court recently addressed whether an action to collect credit card debt was governed by that state's statute of limitations for “actions on unwritten contracts,” or the statute of limitations for “actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing . . . .” Portfolio Acquisitions, LLC v. Feltman, 909 N.E.2d 876, 881 (Ill. App. Ct. 2009). * * *

Feltman is highly instructive. It establishes that credit card accounts are unlike promissory notes or installments loans, such as mortgages, student loans, and car loans. In those types of written debt obligations, the total amount of indebtedness and a defined schedule of repayment, including precise dates for payment and the amount of each payment until the debt is fully repaid, typically are included in the loan document from the outset. With a credit card, although a credit limit may be established, the precise amount of debt that a consumer may undertake is unknown at the outset and fluctuates, depending on how the card is used. Instead, the creditor sends monthly statements to the debtor indicating the amount of that month's required minimum payment, which may vary depending upon how much the card has been used, whether the creditor has imposed fees of different kinds, whether the interest rate for the card is variable, and how previous payments have been made. Long-standing Indiana law also holds, “"The mere existence of any written document associated with a cause of action does not enable a claimant to avoid [the] statute of limitations for unwritten contracts [and actions on account]. The written document must in fact be the basis for the claim being pressed." McMahan v. Snap on Tool Corp., 478 N.E.2d 116, 123 (Ind. Ct. App. 1985). * * *

With Feltman's observations and our own, we note that credit card accounts would appear to closely resemble the common law definition of an “open account.” * * *

Thus, we will treat Smither's debt as an open account debt for statute of limitations purposes. The general rule is that the statute of limitations for an action on an open account “commences from the date the account is due.” 1 Am. Jur. 2d Accounts & Accounting § 22 (2005). It is also clear that when the last activity on an open account, such as the charging of an item or the making of a payment on the account, has occurred beyond the statutory limitations period, any action as to the entire balance of the account or any part of the balance is time-barred. See Hawkins v. Barnes, 661 So.2d 1271, 1272-73 (Fla. Ct. App. 1995). There is no indication in case law or other authorities that a creditor can indefinitely postpone the commencement of the statute of limitations by continuing to send additional statements demanding payment after the first demand has gone unpaid. * * *

Viewing Smither's credit card account as an open account, Providian and its successor Asset had, at the very latest, six years from March 11, 2000, to file suit against Smither seeking collection of any part the debt he incurred. Even if we were to assume Providian could have invoked the optional acceleration clause at a later date and thereby delay the running of the statute of limitations, it never did so. Thus, Asset's lawsuit filed on May 30, 2006, is completely time-barred.

We observe that, although this is an appeal from the grant of Asset's motion for summary judgment, “When any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion . . . .” Ind. Trial Rule 56(B). It is clear not only that the grant of summary judgment in favor of Asset must be reversed, but also that Smither is entitled to summary judgment on remand because of our resolution of the statute of limitations issue.

Conclusion. Asset's claim to any portion of Smither's Providian credit card balance is barred by the statute of limitations. We reverse the grant of summary judgment in favor of Asset and remand for the trial court to enter summary judgment in favor of Smither.

NFP civil opinions today (2):

Robin (Caldwell) Kroot v. Christopher Caldwell (NFP)

In Paternity of G.H.W.; H.A.F. v. Y.K.W. (NFP), an 8-page, 2-1 opinion, Judge Barnes writes:

H.F. (“Mother”) appeals the trial court's calculation of child support to be paid by Y.W. (“Father”). We reverse. * * *

Generally, we agree with Father that trial courts have substantial discretion in calculating child support and that our decision in Freese intended that all relevant factors be taken into account when calculating child support. Nevertheless, Father offers no explanation for the $53.00 per week difference between the Guideline formulation for calculating child support and the Freese formulation for calculating child support. * * *

In the absence of evidence to support a deviation from the Guideline formulation, the trial court improperly ordered Father to pay $53.00 per week in child support. The trial court should have ordered Father to pay $106.00 per week in child support. We reverse.

MATHIAS, J., concurs.
BROWN, J., dissents with opinion: I respectfully dissent from the majority, concluding that neither case law nor the Indiana Parenting Time Guidelines prohibit the trial court from appropriately exercising its discretion as it did in this case. I would therefore affirm the trial court's decision.

NFP criminal opinions today (4):

Juan I. Olvera v. State of Indiana (NFP)

Jamar Alston v. State of Indiana (NFP)

Harold Ferrin v. State of Indiana (NFP)

Kevin S. Neal v. State of Indiana (NFP)

Posted by Marcia Oddi on January 12, 2010 10:21 AM
Posted to Ind. App.Ct. Decisions