SOL and Applications

[treehugger1]

The other day, I was in contact with one of the bigger consumer law firms in my state. I'm dealing with an out-of-state collection agency who refuses to ceaase and desist collection actions in this state (CAs must be registered. In particular the CA I am dealing with.)

The legal firm might consider representing me in a harrassment suit. I have plenty of documentation including copies of letters from the State telling the CA they are violating state laws. I think it will all depend on whether or not the legal firm thinks they can get a reasonable settlement chunk for themselves.

In the course of looking at my debt issues, the question of SOL came up. According to this firm, I should question any suits from C1. I have one of the CC agreements where C1 uses Virginia law in it's cardholder agreement. The CC SOL there is 3 years. I got the impression that one can use the Virginia laws to argue the SOL. Supposedly I can use the Virginia SOL as a carefully crafted affirmative defense in an answer to an Oregon suit. Does anyone know anything about how this works?

I have been sued on one C1 CC and garnishment will pay this off in another month or so. My other 3 C1 cards have not been paid on for over three years. The attorney seemed to think it is very unlikely that C1 will initiate a suit at this late stage.

Has anyone heard of a civil suit where one argues using another state's SOL while being sued in a completely different state? I can only guess that an answer might be, "Defendant and Plaintiff agreed to be bound by Virginia law. There has been no activity on the account for more than three years. As such, the debt is time-barred from legal recourse."

Thoughts? Just very curious.

[Pandora]

Hiya Treehugger

I found this - hope it helps:

"In order to obtain court judgements on most debts, collectors must sue in the judicial district where the consumer resides. However, there are exceptions:

Child support orders are recognized and enforced in every state. If you have child support judgment from NY and move to Florida, the NY statutes of limitation apply.

Signed contracts (not revolving credit accounts); collectors can seek a judgement in the state where the contract was signed. Once they have a judgment collectors or creditors can use either the state where it was granted or have the judgment domesticated to the state where you reside, depending on which state offers the longest SoL.

Example: You live in New Jersey and a debt collector is attempting to collect on a past due credit card bill. The collector must obey the NJ statute of limitations for open ended credit contracts which is 4 years. On the other hand, if you live in NJ but signed a contract to have body work done on a vehicle in Pennsylvania, then a collector can sue for a judgment in PA (good for 20 years).

Under written credit contracts such as car loans, mortgages, and so forth, creditors retain the right to decide which state to sue in, so always expect creditors to choose the state with the longest statute of limitations and the greates amount of award!

A judgment, regardless of which state ordered it, can be enforced in any other state."

http://www.fair-debt-collection.com/statue-limitations.html

[treehugger1]

I would generally accept the statements made in your post as the correct statements, but the firm I contacted is "very" convinced that the Virginia SOL (3 years) argument can be used even if the suit is brought in Oregon (6 years) because both parties agreed to be bound by the contractual obligation created in the State of Virginia. I would question the attorney's knowledge, except the firm is one of the larger legal firms in Oregon. I'm trying to find some case precedent here, but I am having trouble attempting to determine where to start looking in Oregon.

I don't want to name the legal firm as I think that would be inappropriate, however, they even discuss the Virginia SOL as a claim against a suit for CC debt filed in Oregon on their website. They must have experience in this.

If anyone knows of case law IN OREGON related to this, please let me know.

[WhatMoney]

th, I would ask the legal firm that proposes this strategy for legal precedent cases in Oregon. If they are pushing this out-of-state SOL they should have a few wins and case law to back them up.

You've probably read ORS 12.410-12.480:

12.480 Short title. ORS 12.410 to 12.480 may be cited as the Uniform Conflict of Laws-Limitations Act. [1987 c.536 §7]

12.430 Claims based on law of other states; limitation period. (1) Except as provided by ORS 12.450, if a claim is substantively based:

(a) Upon the law of one other state, the limitation period of that state applies; or

(b) Upon the law of more than one state, the limitation period of one of those states, chosen by the law of conflict of laws of this state, applies.

(2) The limitation period of this state applies to all other claims. [1987 c.536 §2]

12.450 When limitation period of another state not applicable.
If the court determines that the limitation period of another state applicable under ORS 12.430 and 12.440 is substantially different from the limitation period of this state and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against the claim, the limitation period of this state applies. [1987 c.536 §4]

So it seems a possible argument, but is up to the court to determine if the shorter period would apply and not harm C1. That seems to be the problem, C1 objects under 12.450 that the shorter SOL harms their ability to sue you.
(I admire your attempt to work the system, btw)

[catleg]

In my stumbling around the internet I came across some class material for a law professor's "choice of law" class.
This is a very legitimate issue and more than the statute, I'd ask the law firm what case law in the state set the precedent. They must know something. They have access to search resources not available to the public (i.e. pay services).

[GoingDown]

I think you can use the SOL in their state, Virginia.

CrapOne used the laws of Virginia to sue me in the state of Virginia, eventhough I have never lived in Virginia, nor have I ever even stepped foot in Virginia.

They got a default judgment against me because, of course, I did not bother to fly from Arizona to Virginia to attend the court hearing. And so far, they have been unable to collect a penny of that judgment from me.

So my answer is yes, I think you can use their state's SOL, as well.

[treehugger1]

GD, LOL. That could be the rub. While they might get a judgment in another state, they would then have to domesticate it in the state of your residence in order to act upon it. The domestication may not be as simple as one thinks. From what I've seen in court cases in my state, it seems easy to argue against a judgment in another state where due process was not accorded to the defendant in this state. Catch 22 for plaintiff.

Whatmoney, I would not say I am attempting to work the system. I am working the system. And, I am trying to "understand" the system. LOL

[catleg]

I have read that CrapOne uses the venue law liberally within Virginia, in otherwords, filling up the docket in Richmond, their home city. But I think TH is correct, because they sue people here in NJ using the notorious Pressler & Pressler law firm.