@BV80 I am not a lawyer as you know, but I think a plausible argument could be made for SOL as an affirmative defense as a disputed material fact to defeat a plaintiff's MSJ in HI state court, or a FDCPA violation for use as leverage in arbitration. If I were HIWes, I'd try to get more info on exactly when this account was defaulted on. You raised an excellent point about whether the account was ever brought current again after a missed payment. Last payment date shown on OP's CRA may not be the applicable date. Federal courts in Florida cite:
"Under Florida rules, statutes of limitations are considered substantive in nature. See Fulton County Adm'r v. Sullivan, 753 So. 2d 549, 553 (Fla. 1999); Merkle v. Robinson,737 So. 2d 540 (Fla.1999). Moreover, under Florida law, a choice of law provision "functions to supply a rule of decision for thesubstantive rights of the parties." Atlantic Associates Ltd. v. Birken, 610 So. 2d 732 (Fla.App. 1992) (emphasis added). Therefore, under Florida choice of law rules, a choice of law clause selecting the application of New York law will generally include the application of New York's statute of limitations.
Generally, Florida enforces choice-of-law provisions as to contractual claims unless the law of the chosen forum contravenes strong public policy. See Mazzoni Farms, Inc. v. E.I. DuPont De Nemours and Co., 761 So. 2d 306, 311 (Fla. 2000). Additionally, the party who seeks to prove such a provision invalid because it violates public policy bears the burden of proof. Id. "
In one case, yes, CA SOL expired before move, so winning argument was borrowing statute. In the other case--long, convoluted story-- JDB alleged some phantom payment to reset the SOL in an attempt to defeat our MSD (MSJ). We had to MTC their records. Judge's patience was at an end. All JDB came up with was a screen shot of the JDB mill attorney's computer with a payment in a field from some internal program. For good measure, our MSD (MSJ) included the argument that California recognizes Delaware contract choice of law, including the 3-year SOL. Judge ruled their claim was time-barred in California under Delaware law, therefore time-barred in Michigan via the borrowing statute as plaintiff was not a resident of Michigan.
Both parties seem to agree on one thing, there's an agreement to arbitrate. The argument is over who starts it with JAMS. As soon as you send the demand form to JAMS instead of the Plaintiff doing it, you'd not be able to use the JAMS rule that says the company pays your fee. If that's not a big deal, go ahead and send the form.
One thing they're attempting to say is you haven't initiated because you haven't started this with JAMS. That's the Plaintiff's creation. The Nevada Arbitration Code says initiating is giving the other side notice. The agreement doesn't say anything different. JAMS Demand Form asks for the court order compelling arbitration which would cover you for not going to JAMS until an order to arbitrate was issued.
NRS 38.223 Initiation of arbitration.
1. A person initiates an arbitral proceeding by giving notice in a record to the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of agreement, by certified or registered mail, return receipt requested and obtained, or by service as authorized for the commencement of a civil action. The notice must describe the nature of the controversy and the remedy sought.
After a quick perusal, some tidbits regarding the documentation:
1. The Credit One affidavit only confirms which entities purchase Credit One accounts and that Sherman can purchase accounts from MHC and FNBM. It does nothing to confirm that the account in question was transferred or sold to any entity at all.
2. As has been stated many times on this site, none of the bills of sale reference you or the account in question.
3. The "Field Data" shows a last payment on 2/18/2015 but no statement was provided to support that data.
4. Midland's affidavit (Mycah Struck) states the account was charged off on 10/04/2015 but no evidence is offered to support that claim.
That being said, look into the arbitration provision of the agreement provided by Midland. Since Midland provided it, they can't argue that you don't have a right to arbitrate their claim.
@LunarMom you spoke with a clerk, they don't make that decision. A Judge would review your Motion. If you check the statute out, about the only thing that gets you out of mediation is FAA governed arbitration. I'm sure a lot of people call them trying to get out of mediation but don't have the qualifying exclusion you do.