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Can you file a motionto dismiss after you submit your answer??


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I'm pretty sure I have a solid SOL defense. I live in Ohio and it is a crap 1 suit. In the original card member agreement, It states that VA and federal law governs. The last payment made to the account was 3/05 and it was charged off in 12/05. VA sol on a cc is 3 years.

The next step is pre-trial....can I file a motion to dismiss based on the SOL? Or should I go through with all the legal stuff??? The main reason I did not do this first was because I did not want a judgement againist me and if the judge denied my mtd then I believe that may have happened??

Should I contact Crap 1's debt collecing attorneys??

Thanks in advance for your help!!!

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If it is still within the time frame of answering, amend your answer with counterclaims for the $1000 FDCPA violation of suing for time barred debt...I forget which FDCPA reference number it is, but you can look it up.

Its the OC....therefore FDCPA does not apply.

If the judge goes for the choice of law provision that VA law applies then it is outside SOL. Otherwise Ohio's SOL is 15years.

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Wouldn't the SOL applied in this case be for the state she lives in now? In Ohio the SOL is 15 years for written contracts and 6 years for open accounts. If DOLA was 3/05 and you live in Ohio, then the account is within the SOL and unfortunately they are within their rights to sue. Not for sure on this and I hope that I am wrong, but I think that the SOL applies to the state where you currently reside, not where you lived when you signed for the card...

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  • 2 weeks later...
Wouldn't the SOL applied in this case be for the state she lives in now? In Ohio the SOL is 15 years for written contracts and 6 years for open accounts. If DOLA was 3/05 and you live in Ohio, then the account is within the SOL and unfortunately they are within their rights to sue. Not for sure on this and I hope that I am wrong, but I think that the SOL applies to the state where you currently reside, not where you lived when you signed for the card...

This would be correct in most cases, but in the original agreement there is a choice of law provision, stating that VA law governs. I have never lived in VA, but CAP 1 is apparently based there and chooses to use there laws. I think it is very convenient for them to uphold only certain parts of the agreement!!

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Oddly enough, your starting point in the choice of law analysis is OHIO law.

You want to research whether, under OHIO's conflicts of law analysis, Ohio would want to uphold a contractual provision that another state's SOL provision applies. If so, then you look to the law in the contract (Va or Fed) and show the judge what that law is.

You should understand that your Judge may be a bit hostile to the approach. She knows the law of Ohio and will have to figure out Va/Fed law. Your job (assuming it is true) is to convince her that Ohio law compels her to conduct that inquiry. Also, there is the fairness issue. The drafter wanted Va law to apply because it gave the crediotor some big advantage (higher interest rate, etc). It would be unfair to permit the creditor to take all of the advantages of the chosen law and not accept its minimal burdens as well.

Good luck.

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Oddly enough, your starting point in the choice of law analysis is OHIO law.

You want to research whether, under OHIO's conflicts of law analysis, Ohio would want to uphold a contractual provision that another state's SOL provision applies. If so, then you look to the law in the contract (Va or Fed) and show the judge what that law is.

You should understand that your Judge may be a bit hostile to the approach. She knows the law of Ohio and will have to figure out Va/Fed law. Your job (assuming it is true) is to convince her that Ohio law compels her to conduct that inquiry. Also, there is the fairness issue. The drafter wanted Va law to apply because it gave the crediotor some big advantage (higher interest rate, etc). It would be unfair to permit the creditor to take all of the advantages of the chosen law and not accept its minimal burdens as well.

Good luck.

Thanks CAlawyer!!

I am still a bit confused though. Should I mention that the account was both opened and charged off while I was living in Florida. The account was never open during my stay in Ohio. I moved to OHio in 2007. Or dothey not care about that at all!!

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I think you are confused about venue. Venue can be proper in Ohio because you live there, etc. But even if venue is proper in Ohio, it is possible for the law of another jurisdiction to apply. If Ohio law allows you to apply the SOL of Va then you are golden don't need or want a different venue.

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  • 1 month later...
I think you are confused about venue. Venue can be proper in Ohio because you live there, etc. But even if venue is proper in Ohio, it is possible for the law of another jurisdiction to apply. If Ohio law allows you to apply the SOL of Va then you are golden don't need or want a different venue.

I have a question on this post regarding a similar situation I am in. I live in Indiana, and am arguing for Delaware SOL. Where do I look to determine if Indiana law allows me to apply the SOL of Delaware? Is the credit card agreement not enough? I find it unfair for the JDB to get to use the credit card agreement when it's convenient for them, but to say it's incorrect when I use it to my advantage. :(

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I have a question on this post regarding a similar situation I am in. I live in Indiana, and am arguing for Delaware SOL. Where do I look to determine if Indiana law allows me to apply the SOL of Delaware? Is the credit card agreement not enough? I find it unfair for the JDB to get to use the credit card agreement when it's convenient for them, but to say it's incorrect when I use it to my advantage. :(

I found a blog that might be helpful to you, they may even answer basic questions for free

http://www.indianaconsumerlawyerblog.com/debt_collection/

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It is called a "choice of law" analysis. What you want to find out is whether, under Indiana's choice of law analysis, it would follow a contractual provision stating that another state's law will apply. Here is a law review article about Indiana's choice of law analysis on torts (which is a more complicated subject). I haven't looked through the whole article, but hopefully the author addresses contractual provisions somewhere.

http://www.law.indiana.edu/ilj/volumes/v82/no2/10_McKeown.pdf

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