StardusterToo

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  1. Was there ever an appeal on your case with Midland? I am going through the same thing with them here in Utah where the SOL is past for Delaware but not Utah. Wanted to know if they pursued this after you got it dismissed.

  2. Since you put it that way, an appeal doesn't sound so bad. It sure is fun to humiliate the professionals in court. Maybe it's a pride thing, but they would be far better off to just drop a case when it gets a little complicated.
  3. Thanks, bad98roadster, for the one year SOL info. There's a lot of good stuff in that NY case. It would be interesting to give it a try, but I think the statute is written in a way to protect the creditor from the debtor. Still, it probably would have been easier to work with. A big thanks to you, Seadragon. Some of your posts really made the paperwork for this case a lot easier. I'm always a bit paranoid with what happens during and after oral hearings. That's why the SOL argument was fully disclosed in all the prior paperwork. Sure hope that will be enough because the proposed order is already in process. It sets them up real nice for a FDCPA case. If it goes in for appeal and they lose, could that also create a binding precedent? They wouldn't dare take that kind of a chance. I also made the mistake of adding a boat load of affirmative defenses to the case that haven't been dealt with. So, if they win an appeal, it won't be much of a victory. An appeal is certainly something to worry about. Perhaps it would be best to ease off on the Pro Se motion for attorney fees. It seemed like a fun one to try.
  4. I can't find any case law that mentions the Delaware SOL starting from the day of a missed payment. The question of what day the SOL starts to run was presented and nothing points to any missed payments. A missed payment might be the cause of action, but what led up to that cause of action? Delaware code 8106 says "3 years from the accruing of the cause of such action" According to the cardmember agreement, they could haul me into court at any time to collect. Any amount owed could be demanded at any time and in full. "Any such wrong occurred at the time that enforceable legal rights against Seaboard were created. Suit could have been brought immediately thereafter to rescind the contract and for nominal damages which are traditionally available in contract actions. Complete and adequate relief, if justified, could be shaped immediately or at any point thereafter" Kahn v. Seaboard Corp "Here, however, the "continuing wrong" is performance of a contract. It is implicitly admitted that payments were made by Seaboard as provided in the contract. There is no claim that payments in excess of those contemplated by the time charter have been made. So long as the time charter is not rescinded, the payments it calls for are legal obligations, not wrongs. Thus, unlike a continuing wrong the only liability matter to be litigated involves defendants' 1986 actions in authorizing the creation of these contract rights and liabilities." Kahn v. Seaboard Corp Everything says that the use of a credit card is acceptance of the terms of the cardmember agreement. That applies to a transaction or a purchase not a payment. So, the creation of the contract rights and liabilities are created with each transaction or purchase. “Delaware has not adopted the proposition that a payment postpones commencement of or tolls the running of the statute of limitations.” Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 - Del: Superior Court 1981. “It seems entirely clear that where the account is all on one side, the cause of action arises from each item as far as the Statute of Limitations is concerned and they are severally barred when, as to them, the Statute has run. It is equally clear both from the terms of the Delaware Statute and from a uniform current of authority that, where there is a mutual open account, there is an implied agreement of the parties that each item shall not constitute an independent debt, due at its date, but that the Statute shall not begin to run until the date of the last transaction.” Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Delaware 1955 Under Delaware law, a plaintiff’s cause of action accrues at the moment of the wrongful act—not when the harmful effects of the act are felt—even if the plaintiff is unaware of the wrong. Wal-Mart Stores, Inc. v. AIG life Ins. Co., 860 A.2d 312, 319 (Del. 2004) (“This Court has repeatedly held that a cause of action ‘accrues’ under Section 8106 at the time of the wrongful act, even if the plaintiff is ignorant of the cause of action.”); Albert v. Alex Brown Mgmt. Servs., Inc., C.A. No. 762-N, 2005 WL 1594085, at *18 (Del. Ch. June 29, 2005) (“The court reiterates that a claim accrues at the time of the alleged wrongdoing, and not when the plaintiff suffered a loss.”); Fike v. Ruger, 754 A.2d. 254, 260 (Del. Ch. 1999) (“A cause of action accrues at the moment of the wrongful act, even if the plaintiff is ignorant of the wrong.”), aff’d, 752 A.2d 112 (Del. 2000); In re Dean Witter P’ship Litig., C.A. No. 14816, 1998 WL 442456, at *4 (Del. Ch. July 17, 1998) (“The general law in Delaware is that the Statute of Limitations begins to run, i.e., the cause of action accrues, at the time of the alleged wrongful act, even if the plaintiff is ignorant of the cause of action.”), aff’d, 725 A.2d 441 (Del. 1999); cf. Schreiber v. R.G. Bryan, 396 A.2d 512, 516 (Del. Ch. 1978) (“[W]hat must be decided is when the specific acts of alleged wrongdoing occur, and not when their effect is felt.”); 2 EDWARD P. WELCH, ET AL., FOLK ON THE DELAWARE GENERAL CORPORATION LAW § 327.3.2 (2007-1 supp.) (“Generally, the determinative issue is when the specific acts of alleged wrongdoing occurred, and not when their effect is felt.”). The only thing left is the legal definition of transaction and a payment is not in and of itself a transaction. I don't want to cause troubles for anyone, but there is a lot of merit to the claim that the last purchase starts the calculation for the statute of limitations.
  5. Wow! After that MEMORANDUM DECISION AND ORDER there was a STIPULATION of Dismissal. Sounds like someone got a settlement. It's a real shame there aren't more people putting up a fight. It would put an end to this whole mess in an instant.
  6. Thanks so very much, KentWA. You certainly have helped a lot with the Utah statutes. I had no idea there was this much potential with this case. It's definitely worth some thought. I wonder if there's an attorney out there that would take something like this on contingency.
  7. But then, a missed payment is a legal obligation and not a wrongdoing. It was a purchase that created an amount owed to the account. They could have demanded payment in full at any time and filed suit to collect (It's in the agreement). They wouldn't need to wait for the account to be in default. A defaulted account wouldn't create a liability that a cause of action could accrue from, but a purchase would. Likewise, without any purchase, there could be no late fees and fines (also in the agreement). That's part of my argument and I'm sticking with it. Those attorneys really wanted this win. They had several months notice on my argument and couldn't provide case law to the contrary. They could only misrepresent a memorandum opinion to counter the claim. In the end, it's all about the definitions.
  8. Of course, Coltfan1972. I'm certainly looking into it. Just need a bit of a break first. Do you know of a good case to look over on PACER for such an issue? Hi BV80, I thank you for your help as well. The last purchase was much more than 3 years out for the SOL and the last payment was only a few days out for the SOL. The plaintiff claimed that the SOL didn't start to run until the last payment was missed and past due. I would have argued that the last payment started the SOL to run, but all the case laws I found just kept pointing to the last transaction (purchase).
  9. Thanks a bunch, Coltfan1972. This case has been so very brutal. I'm sure grateful for all your help and encouragement.
  10. The plaintiff was kind enough to counter the SOL time frame with a memorandum opinion from Marvel vs. Mafco (Del. 2002) and improperly cited the following. This finding is consonant with the principle that in discerning when a cause of action accrues, “the determinative issue is when the specific acts of alleged wrongdoing occurred.” They removed a comma and terminated the quote a bit early. They said that the time starts from the wrongdoing and that the wrongdoing was a missed payment. It should have included the rest of the sentence. “the determinative issue is when the specific acts of alleged wrongdoing occurred, and not when their effect is felt.” That memorandum opinion also included this nice little gem. “It is implicitly admitted that payments were made by Seaboard as provided in the contract . . . . the payments it calls for are legal obligations, not wrongs.” ------------------------ The Courts ruling. Before the court is Defendant’s Motion to Dismiss. The parties have filed various pleadings on this matter and oral argument was presented to the Court on __DATE__. After hearing oral argument from the parties, the Court took the matter under advisement to review a document (joint statement) provided by the parties on the date of the hearing. The Court now having carefully reviewed all relevant pleadings, the applicable law and taking into consideration oral argument orders that Defendant’s Motion to Dismiss be and hereby is granted. The Court agrees with the arguments made by Defendant in her Motion and Memoranda. The facts relevant to this motion are undisputed and outlined by the parties in their Joint Statement of Facts and Issues. A key issue is whether Delaware’s statute of limitations applies in this case. The relevant portion of the “Cardmember Agreement” between the parties states the following choice of law provision: THE TERM AND ENFORCEMENT OF THIS AGREEMENT AND YOUR ACCOUNT SHALL BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH FEDERAL LAW AND TO THE EXTENT STATE LAW APPLIES, THE LAW OF DELAWARE WITHOUT REGARD TO CONFLICT-OF-LAW PRINCIPLES. THE LAW OF DELAWARE, WHERE WE AND YOUR ACCOUNT ARE LOCATED WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT. The Court is cognizant of the case law that provides that the lexi fori rule applies regardless of the contract’s choice of law provision unless the contract expressly provides for a particular application of a state’s statute of limitations. The Court finds that the terms of agreement in this case which state “to the extent that State law applies, the law of Delaware without regard to conflict of law principles” expressly provide that regardless of the conflict of law principles, including the lexi fori rule, the laws of Delaware apply. The lexi fori rule is one of the established conflict of law principles in cases such as this case. The agreement here states clearly that regardless of any conflict of laws principle that may apply to this agreement, the laws of Delaware apply. The next sentence in the agreement, “the law of Delaware, where we ad your account are located apply no matter where you live or use the account”, support this as well. The agreement included the application of Delaware law on all issues regardless of established conflict of law principles such as the lexi fori rule. Therefore, Delaware’s three year statute of limitations applies in this case. Having determined that Delaware’s three year statute of limitations applies, the Court agrees with Defendant that the three year statute of limitations had expired when this action was filed and that there was no tolling period which would apply. Defendant’s Motion to Dismiss is granted. Defendant is designated to prepare an appropriate Order consistent with this ruling and the grounds stated by Defendant which the Court adopts.
  11. Plaintiff’s Second Question: If Delaware statute of limitations applies, on what date did the cause of action accrue for purposes of calculating the limitations period? Defendants Response The proper definitions to the following words are very important to better understand the Delaware statute of limitations. Accrue Mutual Account Running Account Transaction The statute of limitations is 3 years from the accruing of the cause of action. (Delaware Code Title 10, Chapter 81, § 8106). The last purchase was made on LAST_PURCHASE_DATE and the last payment was made to the account on LAST_PAYMENT_DATE. The Delaware statute of limitations starts to run from the date of the last purchase. The last purchase was a transaction creating a debt owed to the credit card account. Regardless of any due date, that amount was owed when the transaction was made. The agreement (“Cardmember Agreement”) states “You must pay any amount over your credit line, and you must pay us immediately if we ask you to. This agreement applies to any balance on your account, including any balance over your credit line.”. Accordingly, the cause of action does not start to accrue from the time of default as any amount owed is owed at the time of each transaction. The last transaction was the last purchase made on LAST_PURCHASE_DATE and the Plaintiff’s cause of action is barred as of LAST_PURCHASE_DATE. A payment in and of itself is not a transaction and no cause of action would accrue from a payment to this account. “Delaware has not adopted the proposition that a payment postpones commencement of or tolls the running of the statute of limitations.” Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 - Del: Superior Court 1981. If a payment were considered a transaction that a cause of action could accrue from, then the last payment was made on LAST_PAYMENT_DATE and the Plaintiff’s cause of action would be barred as of LAST_PAYMENT_DATE. An exception to this is in Delaware Code Title 10, Chapter 81, § 8108. In the case of a mutual and running account between parties, the limitation, specified in § 8106 of this title, shall not begin to run while such account continues open and current. If this account were a mutual account and a running account, the cause of action would still accrue from the last transaction, but the statute of limitation would not begin to run until the account was no longer open and current. However, the Plaintiff is still barred from this cause of action because after the last transaction in a mutual running account, the account is no longer a running account and the statute of limitations begins from the date of that last transaction. “It is equally clear both from the terms of the Delaware Statute and from a uniform current of authority that, where there is a mutual open account, there is an implied agreement of the parties that each item shall not constitute an independent debt, due at its date, but that the Statute shall not begin to run until the date of the last transaction.” Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Delaware 1955 The exception provided by Delaware Code Title 10, Chapter 81, § 8108 is not applicable. This account is not a mutual account. “Delaware Courts have held on a number of occasions that the quoted provision of 10 Del.C. § 8108 does not apply where all the charges were on one side.” Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 — Del: Superior Court 1981. “It seems entirely clear that where the account is all on one side, the cause of action arises from each item as far as the Statute of Limitations is concerned and they are severally barred when, as to them, the Statute has run.” Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Delaware 1955 Plaintiff’s Third Question: If the Delaware statute of limitations applies is the limitations period tolled under Delaware law because Defendant was not a resident of Delaware? Defendants Response The statute of limitations was not tolled by Delaware Code Title 10, Chapter 81, § 8117. A careful reading of the statute shows that the statute of limitation is only tolled until a person can be served with process. The statute also requires that a person first depart from Delaware. The Delaware Supreme Court addressing "Section 8117" held that the statute of limitation was not tolled since the defendants were non-residents and in dicta stated that to hold otherwise would "result in the abolition of the defense of statutes of limitation in actions involving non-residents." Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959). “In any event, whatever the precise argument made may be, we think that the Delaware statute of limitations on actions for personal injuries runs continuously without interruption when there is available to the plaintiff throughout the period an acceptable means of bringing the defendant into court. Therefore, the answer to the first question posed is that there has been no tolling of the statute of limitations since these defendants, at all times, were subject to substituted service” Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959). For purposes of this litigation, Defendant has always been and continues to be a Utah resident. The Plaintiff did not file suit and attempt service until beyond the statute of limitations. Since the Defendant, for purposes of this action, has never been a resident of Delaware, Section 8117 does not apply and it does not operate to toll the three years statute of limitations. CONCLUSION The Plaintiff’s cause of action is time-barred. PERTINENT UTAH CODES Utah Code §70A-5-116. Choice of law and forum. (1) The liability of an issuer, nominated person, or adviser for action or omission is governed by the law of the jurisdiction chosen by an agreement in the form of a record signed or otherwise authenticated by the affected parties in the manner provided in Section 70A-5-104 or by a provision in the person’s letter of credit, confirmation, or other undertaking. The jurisdiction whose law is chosen need not bear any relation to the transaction. Utah Code §78B-2-103. Action barred in another state barred in Utah. A cause of action which arises in another jurisdiction, and which is not actionable in the other jurisdiction by reason of the lapse of time, may not be pursued in this state, unless the cause of action is held by a citizen of this state who has held the cause of action from the time it accrued. PERTINENT DELAWARE CODES Delaware Code Title 5, Chapter 9, § 956. Governing law. A revolving credit plan between a bank and an individual borrower shall be governed by the laws of this State. Delaware Code Title 10, Chapter 81, § 8106 Actions subject to 3-year limitation. (a) No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 and 8127 of this title. Delaware Code Title 10, Chapter 81, § 8108 Mutual running accounts. In the case of a mutual and running account between parties, the limitation, specified in § 8106 of this title, shall not begin to run while such account continues open and current. Delaware Code Title 10, Chapter 81, § 8117. Defendant’s absence from State. If at the time when a cause of action accrues against any person, such person is out of the State, the action may be commenced, within the time limited herefore in this chapter, after such person comes into the State in such manner that by reasonable diligence, such person may be served with process. If, after a cause of action shall have accrued against any person, such person departs from and resides or remains out of the State, the time of such person’s absence until such person shall have returned into the State in the manner provided in this section, shall not be taken as any part of the time limited for the commencement of the action. CITED CASES Gresty v. Briggs, 127 Kan. 151 (Kan. 1928) Nevada v. Hall, 440 U.S. 410, 420-27 (1979) Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 - Del: Superior Court 1981. Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Delaware 1955 Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959).
  12. DEFENDANT’S ARGUMENT Definitions (as provided by USLegal.com) Accrue: The term Accrue has the following meanings: -To come into existence as a claim that is legally enforceable. -To come as a gain, addition or increment -To increase, accumulate or come as a result of growth. Mutual Account: Mutual account means an account showing debit and credit transactions between parties on both sides of the account. When two parties enter into a mutual dealing, a mutual account is created. Under a mutual account, each party to the account takes the position of a debtor and creditor in relation to the other party. In order to establish a mutual account, the parties must have a cross demand or cross open account and an express or implied mutual agreement stating that the claims are to be set off against each other. In Gresty v. Briggs, 127 Kan. 151 (Kan. 1928), the court observed that “Mutual accounts arise where each party has rendered services or sold articles of property to the other with the express or implied understanding that their respective claims shall, upon settlement, be offset to the extent of the smaller claim. Nor in such case is it material whether both or only one of the parties keep the accounts. The distinction lies in the nature of the transaction or transactions. The more usual definition of ‘’mutual accounts’’ is reciprocity of dealing, charges and credits on both sides each party having a cause of action against the other”. Running Account: Running account is an open, unsettled, revolving credit facility offered by a seller to a buyer. Using a running account, a buyer can continually buy or obtain goods or services up to the limit agreed with the seller. Amounts paid by the buyer can be used for making further purchases. Generally, a running account is made with a firm, store, or business, but the account will be maintained in a bank to which the salary, wages, or pensions are paid on a regular basis. When creating a running account, the buyer agrees to settle the account within the agreed date. Transaction: According to 15 USCS § 7006 (13), [Title 15. Commerce and Trade; Chapter 96. Electronic Signatures in Global and National Commerce; Electronic Records and Signatures in Commerce] the term transaction means “an action or set of actions relating to the conduct of business, consumer, or commercial affairs between two or more persons, including any of the following types of conduct— (A) the sale, lease, exchange, licensing, or other disposition of (i) personal property, including goods and intangibles, (ii) services, and (iii) any combination thereof; and ( the sale, lease, exchange, or other disposition of any interest in real property, or any combination thereof.” SUMMARY OF DEFENDANT’S ARGUMENT The Plaintiff has set forth 3 questions and Defendant answers as follows. Plaintiff’s First Question: Does the agreement’s choice of law provision expressly state that the parties’ intention was to include the Delaware statute of limitations? Defendants Response The agreement (“Cardmember Agreement”) explicitly states “THE LAW OF DELAWARE, WHERE WE AND YOUR ACCOUNT ARE LOCATED, WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT”. The agreement does not explicitly alter, modify or waive the Delaware statute of limitations. The agreement explicitly includes “THE LAW OF DELAWARE” without expressly excluding anything from “THE LAW OF DELAWARE”. The Delaware statue of limitations is a part of the law of Delaware. The U.S. Supreme Court has stated "It may be wise policy, as a matter of harmonious interstate relations, for states to accord each other immunity or to respect any established limits on liability. They are free to do so." (Nevada v. Hall, 440 U.S. 410, 420-27 (1979)) The Delaware statute of limitations is applicable. 1. The agreement establishes that the governing law of Delaware is to be used. 2. The agreement does not alter, modify or waive the Delaware statute of limitations. 3. A credit card account was created based on the agreement and it was maintained under the jurisdiction of Delaware. Chase Bank USA, N.A. exported and used the interest rate statutes of Delaware (Delaware Code Title 5, Chapter 9), in accordance with 12 U.S.C. § 85 (Rate of interest on loans, discounts and purchases), on the account since the creation of the account. 4. Chase Bank USA, N.A. is incorporated in Delaware. Delaware Code Title 5, Chapter 9, § 956. states “A revolving credit plan between a bank and an individual borrower shall be governed by the laws of this State (Delaware)”. 5. Delaware Code Title 10, Chapter 81, § 8106 establishes a 3 year statute of limitations for the plaintiff’s cause of action. 6. The plaintiff’s cause of action would be barred in Delaware. 7. Accordingly, the plaintiff’s cause of action is barred in Utah by Utah’s statute of limitations. Utah Code §78B-2-103. (Action barred in another state barred in Utah.) A cause of action which arises in another jurisdiction, and which is not actionable in the other jurisdiction by reason of the lapse of time, may not be pursued in this state, unless the cause of action is held by a citizen of this state who has held the cause of action from the time it accrued.
  13. It finally happened (for real this time). We won against Midland Funding. Everyone in this forum is certainly a very special friend. We can’t thank you all enough. This was a very tough one to sort out and I would like to contribute a bit to the group. Here in Utah, we had to argue that Delaware law and it’s statute of limitations was applicable. To make things even more difficult, we needed to show that the statute of limitations was calculated from the date of the last purchase and not from when the last payment was made and the following payment was delinquent. (Please don't post any case laws to the contrary for a while. I need my sleep and don't want to try for a third win on the same case. ) I would like to post some of the info that was part of a joint statement during a hearing on the SOL issue along with the Courts determination. In the Courts letter, I’ve been designated to prepare an appropriate Order consistent with their ruling and the grounds stated by Defendant which the Court adopts. That’s rather sweet! But, I’m rather overwhelmed with this request. Any pointers?
  14. The hearing will be in a few weeks. The extension should have been just for the SOL issues. They have since tried to get a deposition and compel interrogatories, but I filed for a protective order. So, they don’t get a deposition until there’s a ruling on it. The motion to reconsider, that was actually submitted, pointed more directly at their extension for discovery as the main issue of contention. The plaintiff never addressed the rule 56 delay in my motion to reconsider. Instead, they hijack the motion, in their opposition, and ask that the Delaware SOL be reconsidered. So, 78B-2-103 (Action barred in another state barred in Utah) can address their opposition. I just don’t know if I should file my reply to their opposition and point out 78B-2-103, or if I should wait for the hearing to present it. If they have enough of a warning before the hearing, it’s feared they’ll get imaginative again. Yup, if they claim that the 4 year SOL is not applicable, then they are claiming this case is not for a credit card account and that the contract is in writing with fixed terms and signatures. It does set things up for another interesting defense. Sure hope it doesn’t go that far.