Federal Law vs. State Law?? Which way do i go.

[ken5025]

I am confused I posted this in another forum, but the answer I got made me wonder????

Here is my situation: T-Mobile has been after me for an $1900 bill which i do not feel i owe. I have DVed about 6 CA'S, and so far have avoided a law suit. It will be 2 years in Oct. 2010 that they have been trying to collect. It is my understanding that AZ. (my state) SOL on written contracts is three years. However, it is also my understanding that federal law says the SOL on phone bills is 2 years. This article (quoted below) makes me believe that I am almost home safe, because federal law trumps state law due to the Supremacy Clause. But could someone please clarify for me if federal law states that SOL on cell phone bills is 2 years and does federal trump state in this case and MOST IMPORTANT am i almost home safe????????????

The Supremacy Clause and Federal Preemption

State Law versus Federal- Which rules?

[THE SUPREMACY CLAUSE Article. VI. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.]

Any federal law does trump any conflicting state law

Issues like credit reporting and debt collector abuse are researched by millions of consumers each and every day. Commonly, there is confusion as to whether the law to consider is a state or federal law and which one will finally rule. The Supremacy Clause in the Constitution explains that federal law always trumps state law which means federal always wins if there is a conflict between the two. If there is no conflict then the state law will be used but if there is any question or conflict of the two reading as the same, then the federal rule would win.

[FL4answer58]

Where are you going with this - 'choice law'?

Do you have an agreement whereby you have two jurisdictions?

SCOTUS, State and Federal, Districts, and then Local or County, ...

Case is always -- Supreme Court, Circuit, District, then Division

Or are you asking IF constitutional trumps them?

SOL's for all States http://www.creditcards.com/credit-card-news/credit-card-state-statute-limitations-1282.php

Edited September 27, 2010 by FL4answer58

[ken5025]

CA said they are going to file a suit against me for this cell phone bill . i dont' have, can't afford an attorney. My question is, when i go to court, can i use as my defense...............a federal statute

Under 47 USCS § 415

§ 415. Limitations of actions

(a) Recovery of charges by carrier (T-Mobile in my case). All actions at law by carriers for recovery of their lawful charges, or any part thereof, shall be begun, within two years from the time the cause of action accrues, and not after.

or..... do i have to use my state stutue (AZ) which is 3 years for a written contract. They are suing me in AZ superior court am\n yes, i am asking if this federal statute trumps state statute re: collection on cell phone bills.

Edited September 26, 2010 by ken5025
add info

[FL4answer58]

Many states have their own specific (SOL) statute of limitations with signed contracts.

What category does my debt fall under?

Many times you cannot figure out if your debt is a contract, open end or revolving. Look below to address this issue.

--Oral Contract: You've agreed to pay money back via a verbal agreement. This can include your word, his word and a witness. These are harder to prove but are recognized as "oral contract".

--Written Contract: You have signed a contract or document promising to repay a loan or debt. Example is medical bills, cell phone bill, closed end signature loan or some secured loans like auto.

--Promissory Note: It is like a contract loan except it contains more information about payback. Such information can be interest, principal, late fees etc. A home loan or HELOC can be a promissory note.

--Open Ended Accounts: Just what it says, "open end" i.e.: a credit card debt or revolving line of credit.

Cell phone agreements are written contracts:

If it isn't a federal rule there would be no supremacy clause (as in who rules state or federal) but rather the state could choose to adopt it or not. Most states have adopted it. According to FindLaw, a more specific statute rules over (trumps) a more general statute. Therefore if a certain state has a more specific statute it can trump (rule over) the Federal statute entirely.

Bottom line: Use the Federal rule here for cell phones, but read the state rule as well and see which one applies--, is more specific or offers more protection.

Federal law tells us the statute of limitations for this type of debt is only two years. 47 U.S.C. Section 415

See, caselaw. One that was interesting is a case where a long distance carrier filed suit against a customer (business) for not paying bill. Suit was filed after two years, but within the state's SOL. Here's the summary of the ruling: INTERNATIONAL MAGAZINE SERVICE OF ATLANTA, INC. v. ALLNET COMMUNICATIONS SERVICES, INC. A95A2572. (220 Ga. App. 160)

In the case above "Plaintiff's entire claim against defendant is barred by the federal statute of limitation." This is because this federal law trumps state law.

Yes, you are correct.....

Edited September 27, 2010 by FL4answer58

[ken5025]

Thank you so much-that is a huge help-at least I know i can try to use that as one of my defenses!