Choice of Law, Statute of Limitations

[creditrepairguy]

Hi, so I was wondering about SOL in Massachusetts and choice of Law. I have a debt from Providian. The Card Holder Agreement says that governing law is New Hampshire. I live in MA and opened the account while I was in MA.

My question is. If I were sued in MA, could I argue that the SOL is up since NH has a 3 year SOL and that is what states laws govern the debt per the contract, or will I be laughed out of court since MA has a 6 year SOL..

Here is some case law I found..

1.) michael frankston v. aura systems-

http://bulk.resource.org/courts.gov/c/F3/52/52.F3d.333.93-56534.93-56601.html

2.) Nierman v. Hyatt Corporation -

http://www.napil.com/PersonalInjuryCaseLawDetail26691.htm

[creditrepairguy]

bump

[Amerikaner83]

are you planning on being sued? I don't really understand....are you just doing a hypothetical for the heck of it or do you think you are being sued?

I would venture to theink the whole "choice of law" provision doesn't really matter, since you aren't being sued in NH.

[willingtocope]

Well...the first link doesn't work...and the second is about "personal injury"...so, neither is much help.

IMO, the governing law in this case would be the FDCPA...which gives them the choice of where to sue...where you opened the account, or where you live now...so, I think you're stuck with MA.

You could try the NH argument, but, you're probably misintrepreting something in their original terms and conditons. I say that because CC companies are very, very careful to pick their "governing law" statements to favor them as much as possilbe. Its unlikely Providian would have missed that.

[creditrepairguy]

Well I received a dunning letter from a Mass law firm....

I fixed the link and the first one might be more on point.

What I thought. Is that the FDCPA forces them to sue me in MA. But in MA, I might have the choice of which SOL to apply (choice of law) since the agreement says that it should be governed by NH law...

Under the Waiver of Certain Rights it says

We may delay or waive enforcement of any provision of this agreement without losing our right to enforce it or any other provision later. You waive: the right to presentment, demand protest, or notice of dishonor, any applicable statue of limitations, and any right you may have to require us to proceed against anyone before we sue you.

Under the Applicable Law; Severability; Assignment it says

No matter where you live, this agreement and your Account are governed by federal law and by New Hamshire Law....

Thanks for any help..

[willingtocope]

Again, I'm pretty sure the FDCPA would govern here (unless there is a local state law (like in texas) that modifies it). You've got an interesting agrument about the "governed by NH law" clause in their T&C, but, I'm still betting there's a big gotcha in there somewhere or their high priced lawyers are gonna get fired.

[USofA]

Under the FDCPA they would have to sue you in MA. The suit can not be filed in NH. However, that said, under the terms of the contract, the MA court would have to proceed under NH law for substantive matters.

Statute of Limitations is considered procedural in most states so in most states, even when important foriegn law, the statute of limitations would be the local SOL.

In laymen's terms, in most, if not all, states you must use the local courts statute of limitations.

None of that, however, precludes you from raising the SOL in NH as a defense and you may be lucky and get it ruled two late to file

[creditrepairguy]

USofA thanks. Your post was very helpful. So here is a snippet from the decision in Frankston v Aura. (linked in the 1st post). I don't understand what the Second Restatement is. The best I can make out is that SOL is no longer procedural in MA. Would that be correct? And if so.. Would I have a good defense against this case?

Snippet of Frankston v. Aura Systems

At the time that this suit was filed, the highest court in Massachusetts had not addressed the issue of choice of law for statutes of limitations for more than eighty years, see e.g. Clarke v. Pierce, 215 Mass 552 (1913), but in some modern cases, intermediate courts had reaffirmed the traditional Massachusetts rule treating the matter as procedural. See e.g., Wilcox v. Riverside, 487 N.E.2d 860, 861 (Mass.App.1986) (reversed on other grounds). However, shortly before oral argument, the Supreme Judicial Court of Massachusetts announced that it was changing its traditional rule. In New England Telephone & Telegraph Company v. Gordeau Construction, 419 Mass. 658 (Ma.1995), the court stated that "for the future [ ] this court's treatment of the application of statutes of limitations as procedural will no longer be continued." Rather, the court adopted prospectively the approach advocated by the Second Restatement.

So this is what the 2nd Restatement says about Statutes of Limitations..

§ 142. Statute Of Limitations

The following § 142 replaces the original §§ 142 and 143:

Whether a claim will be maintained against the defense of the statute of limitations is determined under the principles stated in § 6. In general, unless the exceptional circumstances of the case make such a result unreasonable:

(1) The forum will apply its own statute of limitations barring the claim.

(2) The forum will apply its own statute of limitations permitting the claim unless:

(a) maintenance of the claim would serve no substantial interest of the forum; and

( the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence.

[USofA]

I would claim that NH SOL has run and that the case is time barred. I would quote the above case as precident. Good Luck