scardKaren

I need a legal argument as to why VA law should not apply

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Short story, Cap1 sued me. Local councel has broken several anti-trust local laws in course of trying to collect this alleged debt. I have very nice state charges on them, you can go to jail for what they did in this state, the law is clear as to what they did, and fines etc.

VA law is a problem... Vauge in every way.

Writing a contract saying VA law applies, I'm sure does not give them carte blanche to move in and break local laws. I need case laws etc and I've been searching for hours.

Anyone have anything handy?

TIA

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The only real thing relevant as far as collection efforts/llawsuits as far as a choice of law provision like this is usually the stature of limitations.

If they sue you they get to use the VA statute of limitations on debt (which is actually very short OR according to their new agreement your states statute whichever is longer. If the court lets them (and they often allow the case to go by whats in the agreement).

My understanding is the choice of law provis does NOT negate any of our state laws that they or their collectors are subject to when doing business in your state trying to collect from you.

For instance if VA law said it was legal for them to come to your house and kick your puppy until you paid them but NEV law had an anti puppy kicking statute then they cant kick your puppy. Its that simple.

The ONLY thing they ever really get away with in choice of law provisions is fiddling with the SOL to their benefit. So if you have them cold on things that are illegal to do in YOUR state then attack them from that angle. Get a lawyer, try and use it for leverage to settle your debt or however you want to use your violations.

If you REALLY have them on this type of thing then no court in your area is going to let them get away with saying "but your honor this is perfectly legal in VA!!!". Not gonna fly.

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The only real thing relevant as far as collection efforts/llawsuits as far as a choice of law provision like this is usually the stature of limitations.

If they sue you they get to use the VA statute of limitations on debt (which is actually very short OR according to their new agreement your states statute whichever is longer. If the court lets them (and they often allow the case to go by whats in the agreement).

My understanding is the choice of law provis does NOT negate any of our state laws that they or their collectors are subject to when doing business in your state trying to collect from you.

For instance if VA law said it was legal for them to come to your house and kick your puppy until you paid them but NEV law had an anti puppy kicking statute then they cant kick your puppy. Its that simple.

The ONLY thing they ever really get away with in choice of law provisions is fiddling with the SOL to their benefit. So if you have them cold on things that are illegal to do in YOUR state then attack them from that angle. Get a lawyer, try and use it for leverage to settle your debt or however you want to use your violations.

If you REALLY have them on this type of thing then no court in your area is going to let them get away with saying "but your honor this is perfectly legal in VA!!!". Not gonna fly.

Exactaly, but I want case law to back it up.

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I've think I got it.

http://www.corpfinblog.com/2010/07/articles/employment/9th-circuit-applies-california-law-to-determine-employment-status-despite-texas-choiceoflaw-provision/

Narayan v. EGL Inc., 9th Cir., No. 07-16487, 7/13/10

The 9th Circuit reached this conclusion by determining, under Texas law, that a choice-of-law provision that refers only to the interpretation and enforcement of a contract applies only to the contract itself, not to noncontractual disputes that arise under statutes or common-law principles. In this instance, according to the court, "The Drivers' claims involve entitlement to benefits under the California Labor Code. Whether the Drivers are entitled to those benefits depends on whether they are employees of EGL, which in turn depends on the definition that the otherwise governing law—not the parties—gives to the term ‘employee.'"

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Short story, Cap1 sued me. Local councel has broken several anti-trust local laws in course of trying to collect this alleged debt. I have very nice state charges on them, you can go to jail for what they did in this state, the law is clear as to what they did, and fines etc.

VA law is a problem... Vauge in every way.

Writing a contract saying VA law applies, I'm sure does not give them carte blanche to move in and break local laws. I need case laws etc and I've been searching for hours.

Anyone have anything handy?

TIA

Does this help?

See post --"Cap One Loses In Florida on Choice of Law"

Capital One Bank USA, NA v Gregorich, is a Florida small claims case that dealt with whether Capital One’s lawsuit against Ms. Gregorich was barred by the statute of limitations. Ms. Gregorich lived in Florida, whose statute of limitaitons was five years on written contracts. Cap One's credit card agreement provided that Federal or Virginia law applied and in this case Gregorich was relying on Virginia's 3 year statute of limitations for unwritten contracts by using Florida's Choice of Law provision.

The Court found that since the parties had agreed that Virginia law would apply, the Florida statute of limitations didn’t apply since the Cardholder Agreement did not contain information about interest rate or numerous contract terms, it was not, “A complete and concluded agreement between the parties.” This meant that the longer Virginia statute of limitations for written contracts did not apply.

The result? Capital One’s MSJ was denied and the suit was dismissed with prejudice.

The case is attached. http://www.infinitecredit.com/forums/litigation-101-resources-guides/9343-cap-one-loses-florida-choice-law.html

Edited by FL4answer58
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Just a thought - another post from DB in another site reads:

"I have read the Cap One v. Gregorich case, and I do not believe it is applicable to a case filed in Texas. Under Texas law, the statute of limitations is a procedural issue, and only substantive law is applied under a choice of law provision in a contract. A Texas court should thus apply Virginia's substantive law, pursuant to the choice of law provision in the contract, but will still apply Texas law to procedural issues. The statute of limitations is a procedural issue."

"Now, what was different in Gregorich is that the case was brought in Florida, and under Florida law, statutes of limitations are considered to be substantive. Thus, because the statute of limitations was considered substantive law, the Florida court applied Virigina's statute of limitations."

"Most states consider the statute of limitations to be procedural. In those states, you are stuck with the home state's statute of limitations, notwithstanding a choice of law provision in the contract."

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Just a thought - another post from DB in another site reads:

"I have read the Cap One v. Gregorich case, and I do not believe it is applicable to a case filed in Texas. Under Texas law, the statute of limitations is a procedural issue, and only substantive law is applied under a choice of law provision in a contract. A Texas court should thus apply Virginia's substantive law, pursuant to the choice of law provision in the contract, but will still apply Texas law to procedural issues. The statute of limitations is a procedural issue."

"Now, what was different in Gregorich is that the case was brought in Florida, and under Florida law, statutes of limitations are considered to be substantive. Thus, because the statute of limitations was considered substantive law, the Florida court applied Virigina's statute of limitations."

"Most states consider the statute of limitations to be procedural. In those states, you are stuck with the home state's statute of limitations, notwithstanding a choice of law provision in the contract."

Thanks for the help, but SOL is of no help to me, under Nevada, or Virgina law. I have nice decptive trade practices against them.

Nevada law is clear that a debt collector is not allowed to lie, or make missleading stayments. and it's punishable with a 10K fine.... After your 3rd offence, you can get up to 6 months in jail.

Virgina law is vauge.

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