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Showing results for tags 'Statute of Limitation'.
Recently served summons for breach of contract on a Barclays card. JDB is Unifund. I am currently battling PRA in magistrate for a separate suit (account stated) My knowledge to defend JDB revolves around traditional court litigation. After reading arbitration posts, I filed my answer. Denied everything. Affirmative defenses = lack of subject matter (arbitration), Statute of limitations. The scheduling order was made and entered the next day. It appears Unifund already filed a motion to vacate, is this the same as a continuance? Unifund did not attach a card agreement with their complaint so I'm not 100% certain arbitration is option. It appears most Barclays card agreements do have a arbitration clause. Q's Is Unifund known to follow the defendant through arbitration? Or more or less a sure thing they eventually walk? It's unlikely Unifund can prove breach of contract with proof of a written signed contract and I believe the Sol is close to or has passed (would need to argue accrual of time). Advise requested on the course of action to take before filing a motion to compel arbitration. Thanks
I had cancer when I was 20 and was on disability/SSI and almost died during this time. I had a small bill that my parents did not pay of $700(I had no income). Apparently worldwide asset purchasing opened a lawsuit for collections on this $700 when I was 23(2003). My mom signed for the paper when it was sent and I never knew about it. They didn't pursue anything however. I am now 35(2015) and out of nowhere they opened the case back up, sued me, and garnished my wages for $2000. Is this legal?? The statute of limitations is 6 years in NJ. I have a lawyer going after them for the violation of the FDCPA, but the judge wouldn't dismiss it for me based on statute of limitations because he said they are allowed to reopen that case from 2003 at any time? The judge said I could file a motion to vacate which would cost $25+ to file...is it even worth it to try to win this or should I just let them garnish the $2000 and be done with it? It isn't even on my credit report.
A California Consumer Defense Attorney said that most credit card companies incorporated in Delaware for a reason: This state doesn't have a cap limits for the interest rates charged on credit cards, so the credit card business is more profitable there. However, Delaware has 3 years Statute of Limitations. Often, the credit card Agreement has a "Choice of State Laws" provision, in which the credit card company would chose Delaware as the choice of state laws so that they can charge whatever interest rate they want. So, if a California consumer is sued by a credit card company that is incorporated in Delaware (Chase, BOA, Capital One, Discover, to name a few), the SOL should be 3 years instead of 4. Any member here can confirm? If the above is true, what is CA case-law we can use? I only know of a New York case law Portfolio Recovery v. King.
This has been going on since April and they sent me a MSJ last week. I did some digging and came up with this. I am going to file a motion to dismiss too, not sure how to word it. I know this is LONG but please someone look over and help me make it LAWYERISH ....THANKS IN THE STATE COURT OF HOUSTON COUNTY STATE OF GEORGIA some company Assignee of First USA Bank, N.A. Plaintiff, vs. ME Defendant. DEFENDENTS RESPONSE TO PLAINTIFFS MOTION FOR SUMMARY JUDGEMENT COMES NOW, ME, Defendant and responds some company Motion For Summary Judgement as follows According to Plaintiffs letter to Defendant Exhibit A the account was charged off on January 25th 2004. This statement does not show last payment made by defendant. According to the Cardmember Agreement paragraph titled Default/Collection Cost (Exhibit B pg 4 of 6) account is in default if “(1) in any month we do not receive your minimum monthly payment by the payment due date”. Plaintiff has failed to provide any evidence as to when account went into default, but yet continues to claim that last payment on account was dated May 5, 2003 (Exhibit C). Defendant has requested proof of this claim but Plaintiff has failed and refused to provide such proof. Defendant made payments for disability and unemployment protection services offered by First USA. Defendant requested these services take affect after being medically discharged from the Air Force. Her request was denied for both disability and unemployment. First USA is at default for denying services as agreed upon. Per Plaintiff's Affidavit in Support of Plaintiff's Motion for Summary Judgement paragraph 6, “On or about November 17, 1995, Defendant applied for a Visa credit card”. Defendant was a resident of the state of Florida during this time and continued to be until, or about, September 2003(see Exhibit D Florida DMV Record), said account was in default prior to then. According to Florida State Law the Statute of limitation is 5 years . Under the Federal Truth in Lending Act § 15 a credit card account is legally defined as an "open" account which is defined as credit extended by a business to a customer, charge account, credit account, charge account credit, open-end credit, revolving credit - a consumer credit line that can be used up to a certain limit or paid down at any time, revolving charge account - a charge account that does not have to be paid to zero balance. The Act is in Title I of the Consumer Credit Protection Act and is implemented by the Federal Reserve Board via Regulation Z (12 C.F.R. Part 226). The Regulation has effect and force of federal law. Open-end Credit Transactions: Open-end credit includes bank and gas company credit cards, stores' revolving charge accounts, and cash- advance checking accounts. Typical features: Creditors reasonably expect the consumer to make repeated transactions. Creditors may impose finance charges on the unpaid balance. As the consumer pays the outstanding balance, the amount of credit is once again available to the consumer Federal Law supersedes State Law or a State Court's interpretation. OCGA § 7-5-2(4) and OCGA § 44-14-3(a) define a credit card as revolving, thus making it an open account. As indicated, the Federal Truth in Lending Act clearly defines credit cards as open end accounts and in the state of Georgia, that would be a four year statute. Georgia's statutes provide, OCGA § 11-2-725. Statute of limitations in contracts for sale (1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. and § 9-3-25. All actions upon open account, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied promise or undertaking shall be brought within four years after the right of action accrues. However, this Code section shall not apply to actions for the breach of contracts for the sale of goods under Article 2 of Title 11. Plaintiff's Affidavit in Support of Plaintiff's Motion for Summary Judgement paragraph 7 states that the terms and conditions of the contract are set forth in the current Credit Card Agreement (Exhibit B titled cardmember agreement). According to the Cardmember Agreement under paragraph titled Assignment (Exhibit B pg 5) “Governing Law: This agreement and your account will be governed by the Law of the State of Delaware and, as applicable by Federal Law.” This makes Plaintiff's claim moot for two reasons 1) claim was filed in the State of Georgia not Delaware and 2) 10 Del.C. § 8106. Actions subject to 3-year limitation provides that Statute of limitations in Delaware is three years for open accounts, written contracts and oral agreements. Conclusion Defendant disagrees that Plaintiff is entitled to a judgement as a matter of law and further states that O.C.G.A. § 9-11-56(e) provides that “nothing in this Code section shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined.” Because the Defendant was not a Georgia resident and the account is governed by the State of Delaware, Defendant respectfully submits that the Court should dismiss, deny and find invalid the Plaintiff's complaint and Motion for Summary Judgement, and prays for Dismissal of the complaint by the Plaintiff.