Does clicking acceptance of the “Terms and Conditions” of an online credit card application create a written contract?

I recently received information about a bankruptcy colleague who was successful in dismissing a collection lawsuit based on the Statute of Limitations. The background is that his client was being sued by a collection agency for $40,000. His client had applied for the credit card online in 2006 and the last payment was in May of 2007 before he went into default. The debt was then sold to a collection company did not file suit for more than four years after the last payment was made. The attorney for the debtor argued that under Utah’s four year Statute of Limitations applied to the suit and therefore barred the action. The collection attorney argued that Utah’s six year Statute of Limitations applied claiming it was based upon “an instrument in writing”. The collection attorney claimed since the debtor had to click a button agreeing to the written terms and conditions of the credit card agreement, the act was sufficient to constitute “an instrument in writing”. When the time came for oral arguments on the issue, the collection attorney cited to Empire Land Title v. Wyerehaeuser Mort., 797 P.2d 467 (Utah Ct. App. 1990) claiming a writing does not need a defendant’s signature. However, the defense argued the court in Empire Land Title held that all of the key terms necessary must be part of the instrument including the principal amount of the debt, the interest rate, the monthly payment, etc., and none of these key terms were found in the Terms and Conditions of the online credit card agreement. The Defense cited Portfolio Recovery Assoc., LLC v. Fernandes, 13 Fla. L. Weekly Supp. 560a (2006) which held that the terms and conditions of a credit card agreement by themselves do not establish a liability to pay sufficient to constitute an instrument in writing. If the terms and conditions by themselves were put into evidence before a jury they would not establish a liability to pay. Instead, the only address the manner in which a future liability might be created. No instrument in writing and the shorter four year Statute of Limitations applies. This could go up on an appeal as it could have significant impact on how and when collection firms sue debtors. Only an experienced bankruptcy lawyer can tell you your rights contact one today!!