BackFromTheDebt

I partially disagree. According to the OP, the last payment was 2016. The SOL runs out sometime in 2021. I don't know which month. That means, the JDB has at 3-4 months, and possibly an entire year, to file the case in Florida. Once the case is filed in Florida, arbitration is off the table. I don't know if this particular law firm has an office in Florida. If so, they could just transfer the case to their Florida office. If that is the case, the OP should probably file in arbitration before the debt gets to the Florida office. If this firm does NOT have an office in Florida, especially if the SOL is early in 2021, then the advice above is good, with a caveat. It would probably take a few months to transfer the account to a new law firm, and the new firm would probably notify the OP before filing suit, and the OP can send in a DV, buying at least a month of time before having to file. So it is a real possibility that the JDB will miss the deadline. However, there is always the possibility that the new firm will do whatever they can to file just before the SOL deadline. I once had a debt disappear from the bottom of a file cabinet a few months before SOL. If they figure out the debt is close to SOL, they will hurry to make sure they file in time. Which is why I suggested filing in arbitration soon. That takes away the possibility of the JDB filing a quickie law suit in Florida right before the SOL. Since the JDB will almost certainly fold, that seems like a sure win.

It appears you were in Florida at the time of the default, which makes it an improper venue. This is originally a Citi card. That means there is a small claims exemption for arbitration. Here is a possible strategy. Contact the attorney ASAP to let them know they sued in the wrong venue. If they are even remotely ethical (many are at least remotely ethical, but not all) they will withdraw or nonsuit the case. At that point, the case is not in small claims. Immediately file in arbitration to get around the small claims exemption. You might even file before they nonsuit the claim. For example, you could file against the JDB and the attorney for an FDCPA violation for taking an action they are not legally permitted. Once you have the case in arbitration, just about any JDB will fold.

That might work. Make sure you are objecting to the MSJ on these grounds.

After

I may be wrong, but I think California has a borrowing statute, which would use the 3 year Delaware SOL.

NO! The start date for the SOL is the date of first default. For example, if you last paid in May, then didn't pay in June. In July you are 30 days past due, so now in default. That would be when the 6 year SOL starts. If the closed the account in December, 2019, then most likely the date of first default was earlier than that, UNLESS you made a payment after they closed the account. If you made any payments after July 2020, then the SOL hasn't passed. Otherwise, it has long since passed.

I hope you filled out an affidavit that the agreement was a true and correct agreement.

You MUST object to their MSJ. What I meant is, IF the court hears their MSJ, you will probably lose, unless they have some major holes. That is why you need to prevent their MSJ from being heard in the first place. As I explained earlier, matters of jurisdiction take precedence over anything else. That is why your MTC must be heard first. So you object to their MSJ on the grounds that the court has no jurisdiction. If there really are a lot of holes in their MSJ, you could address those holes as well. That is what I did a few times, BUT, the court never heard their MSJ, because the case was sent to arbitration first. The problem is, in some jurisdictions you may waive your right to arbitration by arguing against their MSJ. Not in my state, but in some other states.

You will probably lose an MSJ if it gets to that. The reason why your MTC trumps their MSJ is simple. The contract has an arbitration agreement. The Supreme Court ruled that arbitration takes the matter out of the courts and into arbitration. Therefore, the court doesn't even have jurisdiction in the matter. The arbitration company does. Since the court doesn't have jurisdiction, that takes the power to rule on the MSJ away from the court.

Object on the grounds you already filed an MTC, which takes the matter out of the jurisdiction of the court.

There are a lot of problems here. First, the Delaware 3 year SOL applies to credit card debt. I don’t know what the SOL is for private student loans in Delaware (Federal loans have no SOL. They last forever. ). You need to be absolutely certain it is 3 years. Second, not all states have borrowing statutes. Most do not. Even if the contract says they will use Delaware law, in most states they can use the SOL of the state in which they sue. You’d better be 100% certain your state has a borrowing statute. If not, there may be a way out. Or not. This is important. Does the Discover student loan agreement have an arbitration agreement? If so, you may or may not want to peruse arbitration. It depends on whether consumer rules apply. If so, that is a great option. I know of at least one situation for credit card debts in which the consumer beat Discover because the consumer filed in JAMS before Discover could file in court, and the arbitration agreement said to use Delaware law in arbitration. This case was filed about 5.5 years past the default, in a state with a 6 year SOL, but Delaware law is 3 years SOL.

Yes, arbitration is the way to go. There are some threads specific to Texas. You should do a search for them. Otherwise use the boilerplate language. Maybe @texasrocker has some ideas.

Once you have been sued, it is too late to just pay the bill and have them automatically drop the case. The time for that was before they sued. At this point they may be suing for the amount plus some court costs. I don’t know if they are suing for attorney fees as well. What you can do is call them up and work out a settlement. It may not be as good as what you could have gotten before a suit. But, if you can pay in full you can probably get them to agree to take less than what they are suing you for. Get everything in writing. Get an agreement that if you pay $xxx they will agree to dismiss the case with prejudice. Make sure there is a clause that they agree the debt is paid off and they will not sell it to anyone else.

I hope this isn’t a stupid question— is the agreement on the CFPB web site?

Then you know what to do.