Cap1 only has a 3 years SOL for everyone?

[diamonddan73]

I was reading some threads and saw that Cap1 has in a clause the User Agreement that everything falls under either Federal or VA law regardless of where you live. If there is no Federal law, then it's VA law. So I read the user agreement myself and it does state that everytthing is under VA law if there is no Federal law. In VA the SOL is only 3 years and I live in CA where the SOL is 4 years. Does their User Agreement mean that they can't try to collect on a debt over 3 years old?

[RebelLady]

Does their User Agreement mean that they can't try to collect on a debt over 3 years old?

No. OCs and JDBs can and will try to collect on debts that are OOS. What it does mean, however, is that you can use the SOL as an affirmative defense.

Which SOL applies is also determined by whether or not your state imports SOLs from other states and whether your state regards the SOL as a substantive or a procedural issue. Try to find some caselaw that is specific to your state to determine whether it imports SOLs and whether it views SOLs as substantive or procedural (how your state applies SOLs from out-of-state).

For instance, my state doesn't import SOLs

RL

[Guest usctrojanalum]

This all depends on the State you are currently living in. Some States will support choice of law provisions, others will not.

[skippy1960]

During my dealings with Cap1 I found California courts will not typically agree to SOL changes based on choice of law provisions in case law.

Frankly you really need to think this through because Virginia consumer law is pretty weak in comparison to California even if you won the arguement. You do give up alot of protections for instance in California we have Rosenthal Act which is a mirror to FDCPA only a bit stronger because the OC, is consider debt collector as well as attornies in some cases. They all make mistakes along the way and violate at times also.

The one area I have seen were you can make work what you are thinking is going the arb route. Cap1 has been requesting Virginia Law, if they pay and get all the way to hearing. In this instance you would be good, assuming you can prove last date of activity on the account.

[diamonddan73]

The only reason I was asking is because im at about 3 1/2 years since they alleged the last payment on the account. I was hoping to make things easy because they would be past the SOL for VA. I would sill have about 6 months left on the Cali SOL of 4 years.

[skippy1960]

I am not saying you shouldn't do some research, you need to find some case law that supports your perspective. I did some research myself and found that most of the cases didn't support my/your theory. Check for yourself to be sure.

Another strategy would be to string the case along till after the SOL has expired and then attempt to get case dismissed. Meaning if you come across something that could get the dismissal now hang tight. Dismissal would be without prejudice and then you have a very solid affirmative defense once they re-file.