flanole

Sued by Capital One in Florida

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1. Who is suing you? Capital One Bank (USA), N.A. is Plaintiff but Zakheim & Lavrar is Attorney for Plaintiff and clearly state "This is an attempt..." They are a shady JDB/CA

2. For how much? $984 + interest at 28% from Nov. 2008 + $300 Attorney

3. Who is the original creditor? Capital One Account Charged Off in Oct. 2007 but never sold or assigned

4. How do you know you are being sued? Served with civil summons and notice to appear for pretrial conference

5. How were you served? Were you served? Summons was inadvertantly served on a neighbor of mine who is dealing with a separate legal matter and thought it was for him...he passed it along to me

6. What was your correspondence (if any) with the people suing you before you think you were being sued? Received various correspondence over time stating "This communication from a debt collector is an attempt to collect a debt..." I did not reply to any letters, nor to any other collection notices.

7. Where do you live? Volusia County Florida

8. When is the last time you paid on this account? Last payment was around January 2007.

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or B) looking it up online (many states have this information posted daily). Must appear in court on May 27, 2011 for pretrial conference

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. No.

12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? No requirement for written response...No interrogatory was attached. I will post the details of the documents below.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Attached to the Civil Summons are the Complaint (details below), a photo copy of statements from around Aug. 2006, May-June-July 2007(note that the May statement clearly states in bold that I am 4 payments behind), and a computer printout that says Capital One Cycle Facsimile report that shows previous balance, "transaction," late fee, interest, my name & a card number from October 2007, which is apparently when the debt was charged off).

14. What is the SOL on the debt? In Florida-Open-ended is 4 years and written is 5 years...I am hoping I can make affirmative SOL defense

(2) WITHIN FIVE YEARS.—

(a) An action on a judgment or decree of any court, not of record, of this state or any court of the United States, any other state or territory in the United States, or a foreign country.

(B) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of ss. 255.05(10) and 713.23(1)(e).

© An action to foreclose a mortgage.

(d) An action alleging a willful violation of s. 448.110.

(3) WITHIN FOUR YEARS.—

(a) An action founded on negligence.

(B) An action relating to the determination of paternity, with the time running from the date the child reaches the age of majority.

© An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.

(d) An action to recover public money or property held by a public officer or employee, or former public officer or employee, and obtained during, or as a result of, his or her public office or employment.

(e) An action for injury to a person founded on the design, manufacture, distribution, or sale of personal property that is not permanently incorporated in an improvement to real property, including fixtures.

(f) An action founded on a statutory liability.

(g) An action for trespass on real property.

(h) An action for taking, detaining, or injuring personal property.

(i) An action to recover specific personal property.

(j) A legal or equitable action founded on fraud.

(k) A legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts.

(l) An action to rescind a contract.

(m) An action for money paid to any governmental authority by mistake or inadvertence.

(n) An action for a statutory penalty or forfeiture.

(o) An action for assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort, except as provided in subsections (4), (5), and (7).

(p) Any action not specifically provided for in these statutes.

(q) An action alleging a violation, other than a willful violation, of s. 448.110

Isnt there a level of fraud if the JDB is trying to collect a debt that is not theirs???

Here's what the Complaint says...

Count I-Breach

1-Action is less than $5K

2-Plaintiff and def. entered into a CC agreement (attached)

3-Plaintiff performed T&Cs

4-Def. did not perform T&Cs

5-Def. breach is material breach going to the essence of the agreement in that def. did not make payments as agreed

6-Plaintiff has been damaged $984 plus 28% int from Nov. 2008 plus $300 atty fee

7-Pursuant to "default" clause def. will pay atty fee

CountII Account Stated

1-Action less than $5K

2-Plaintiff and Def had "business transactions" between them wherein plaintiff extended credit to def. in form of a revolving account

3-Plaintiff rendered statements to def. and def. did not dispute them in a timely manner

4-Plaintiff demands $984 plus 28% int. from Nov. 2008

Issues

1-Is this a suit by OC or JDB??? Is there fraud on behalf of JDB if Cap One still owns debt??

2-What statute has been violated???

3-What is SOL? When did clock begin ticking? (Last payment Jan. 2007)

4-What should I file-if anything-between now and the pretrial conf????

5-Any affirmative defenses???

6-If my motion to dismiss is shot down at pretrial should I be prepared to make a settlement offer? Is the JDB even authorized to accept an offer???

Any insight and guidance would be greatly appreciated!!!

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Issues

1-Is this a suit by OC or JDB??? Is there fraud on behalf of JDB if Cap One still owns debt??

Check your credit report. If Cap1 has sold it, their TL will state "sold/transferred" or "charged off/sold"...something to that effect. If it doesn't say anything about sold or transferred, they still own it. The reason the attorney included "this is an attempt" is because debt collection attorneys are considered debt collectors, and they must include that statement.

2-What statute has been violated???

Don't know of any yet.

3-What is SOL? When did clock begin ticking? (Last payment Jan. 2007)

The SOL would have started around Feb. 2007.

4-What should I file-if anything-between now and the pretrial conf????

Read your court's Rules of Civil Procedure.

5-Any affirmative defenses???

Don't know yet. Hopefully some others on the board have an idea.

6-If my motion to dismiss is shot down at pretrial should I be prepared to make a settlement offer? Is the JDB even authorized to accept an offer???

You don't know yet that you're being sued by a JDB. Cap1 could very well be the Plaintiff.

According to FL case law, the SOL for credit card debt is 5 years.

Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008

Gaisser v. Portfolio Recovery Associates, LLC - Google Scholar

"Conversely, if Florida's five-year statute of limitations applies or the New Hampshire statute applies and was tolled until February 8, 2007, or later, the state case was timely and Plaintiff has failed to state a claim."

This case law is important. The Plaintiff, Gaisser, sued on the grounds that the SOL in Portfolio's home state of New Hampshire should apply (choice of law). The court ruled that New Hampshire's 3 year SOL applied because of the choice of law provision in the original cc agreement.

See what state governs Cap1's agreement and what the SOL is in that state.

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I believe Cap One agreements all specify Virginia as the governing law. SOL is 3 years in VA.

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BV80-Thanks for the info...It seems Cap One still owns debt (below from Experian)

CAPITAL ONE

Address:

PO BOX 30281

SALT LAKE CITY, UT 84130

(800) 955-7070 Account Number:

486236237292....

Address Identification Number:

0062181908

Status: Account charged off. $985 written off. $1,285 past due as of Nov 2008.

Date Opened:

05/2002

Reported Since:

05/2002

Date of Status:

10/2007

Last Reported:

11/2008

Type:

Credit card

Terms:

NA

Monthly Payment:

$0

Responsibility:

Individual

Creditor's Statement: Account closed at credit grantor's request.

Account History:

Charge Off as of Nov 2008, Oct 2008, Jun 2008, May 2008, Apr 2008, Mar 2008, Feb 2008, Jan 2008, Nov 2007, Oct 2007

150 days past due as of Aug 2007

120 days past due as of Jul 2007

90 days past due as of Jun 2007

60 days past due as of May 2007

30 days past due as of Apr 2007

Furthermore, It would appear that Virginia law would govern (see below)....with a 3 year SOL...so how do I make that work for me???????File a Motion to dismiss citing Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008

Governing Law – WE MAKE THE DECISION TO GRANT CREDIT, OPEN AN ACCOUNT, AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. This Agreement is to be construed in accordance with and by the laws of the United States of America and by the internal laws of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of parties. This agreement is made in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal Law). If a court decides not to enforce a part of this Agreement, this Agreement will then read as if the unenforceable or invalid part were not there, but the remaining parts will remain in effect.

Waivers

Lost or Stolen Cards or Account Access Checks

Communications

ARBITRATION. PLEASE SEE ENCLOSED “ARBITRATION PROVISION.” Please not that the terms included in the arbitration provision are part of your customer agreement.

©2005 Capital One Services, Inc.

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Furthermore, It would appear that Virginia law would govern (see below)....with a 3 year SOL...so how do I make that work for me???????File a Motion to dismiss citing Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008

Hopefully some members on here can help you with that. I do believe you'd have to go ahead cite the Statute of Limitations as an affirmative defense.

Read the posts on arbitration. Linda7 is very knowledgeable about that issue.

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I don't know a lot about Florida and arbitration, but I do know there is something about needing to ask for arbitration early in the game for your state. Here are my thoughts - first, I'd go to debtorboards Debtorboards - Sue Your Creditor and Win! - Index and repost this in the arbitration forum and get some quick feedback as to arbitration and your state. The next thing is, I would question whether you were served correctly. There may be a chance that you can get this dismissed as you were not properly served, but here again - I don't know your state's rules. This is something that you need to bring up at the forum too! However, if your chance to arbitrate is past because you've already been served, but "if" you can get this thrown out because you weren't served properly - you can then start over and stand a chance to elect arbitration. With an amount this small, if you can get your foot in the door . . . I believe that Capital One would go away as it would cost them too much to try and collect the debt. In the meanwhile, let me get all my Pincus stuff together and I'll post back with that. That case of course was in Florida and he was able to use the contract's own language and argued the 3 year SOL against Capital One and he was successful.

So, in this order - post over at debtorboards. Find out "if" you can have this dismissed because you weren't properly served. And then find out what the requirements are for electing arbitration in Florida. I'll be back shortly when I have the Pincus information for you which you could also use to argue with in arbitration even "if" Capital One wanted to arbitrate. Even if you can't get this dismissed and have to go with things as they are, I'd still use the Pincus case as a defense! :)++

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Almost forgot this one too! xdancex

Capitol One v Robert C. Cuellar,

County Court of the Thirteenth Judicial District

in and for Hillsborough County, Florida

CIVIL DIVISION, Case No. 07-CC-12751

Court rules that Capitol One's contract specifying Virginia law to be used in governing contracts which set an SOL for three years is applicable to the collections case.

Cruellar was being sued on for a Capital One account in Florida and held Capital One to the Virginia Law standard in the contract, and it was determined that the breach of contract occurred in Virginia and under current conflict of laws standards, the law in the state where the breach occurred applies. Virginia SOL applied, and the Defendant Cuellar won summary judgment against the plaintiff for a time-barred debtl.

Cuellar wins summary judgement on breach of contract

The core of the decision is:

Quote

Accordingly, the Court finds that the arrangement between the parties constitutes an “unwritten” contract or purposes of the statute of limitations analysis, that Florida procedural law applies, that Florida procedural law, i.e., borrowing statute, dictates that Virginia’s shorter, three year statute of limitations applies and application of the three-year statute mandates that Defendant prevails on its Motion for Summary Judgment on the breach of contract count.

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Be very careful in what you do! You might need to first file a "motion to quash service". I have read that if you answer the suit, you have waived your rights to quash service. So, I think the proper order would be to file the motion to quash service "immediately". Your motion to quash service should get rid of the suit "temporarily". I'm sure they will file again and have you served properly, but this is that little opportunity that you will have to be able to file your motion to compel arbitration "before" they file suit (again). But, quickly . . . go over to debtorboards and see if my line of thinking will work for your state. :)++

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While you were responding I registered at Floridadebtor and was waiting for confirmation when I came across the Pincus case...and apparently several others that support the position that I am

1-Under the Rule of Virginia Law based on the Agreement

2-Virginia has already affirmed this is an oral contract

3-The SOL in Va. for Oral contracts is 3 years...

soooooo....when does the clock start for SOL in Va.???

I made my last payment in Jan. of 2007....account was charged off in Oct. 2007...

So strategically speaking the argument is valid regardless of whether I am in court or arbitration, but by electing arbitration the suit may go away because of the cost/reward aspect for Cap One and I dont have to go through the hassle of the formality of pleadings etc...

What is the likelihood of them refiling if indeed the service was not proper?

I am assuming that the wheels keep turning at Cap One/CA and they just count on people being intimidated or not having time or knowledge to research etc....do I have anything to lose by electing arbitration?

I will research the service issue and arbitration and repost...thanks for the quick response!

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They will most definitely refile and have you served properly. However, (again you need to check at debtorboards and I know there is something "different" about Florida and arbitration), if you file your motion to quash and immediately go for the arbitration (again check at debtorboards as I don't know if you need to let the attorney know that you are electing arbitration or if you have to go ahead and initiate), but get the proper order in what to do where your election of arbitration will be correct.

Your last payment being in January - would make the account be in default when the next payment was due and was not paid. It is beyond SOL if argued correctly! You need to force the contract's own language! :)++

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Here are some Florida statutes that you need to read - Florida Statute 48.031 (1)(a)

48.031 Service of process generally; service of witness subpoenas.

(1)(a) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.

Florida Rules of Civil Procedure RULE 1.070 (e) PROCESS - provides that “a copy of the initial pleading shall be delivered to the party upon whom service is made.”

Edited by Linda7

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Hey there, Linda! I was hoping you'd offer some advice here! :D

The case you cited with Cap1, and the case I cited with Portfolio need to be remembered. Those have the FL courts ruling in favor of the consumer against an OC and a JDB.

Edited by BV80

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Hey there, Linda! I was hoping you'd offer some advice here! :D

The case you cited with Cap1, and the case I cited with Portfolio need to be remembered. Those have the FL courts ruling in favor of the consumer against an OC and a JDB.

They do indeed need to be remembered! Great cases for sure! xdancex

flanole - here's some more information on your motion to quash that you need to file immediately! Keep in mind these are "general" statements for a motion to quash service (so, please call your courthouse to get your state's specific rules). If not done quickly, you will lose your right! Call your courthouse and tell them that you were not served properly and ask them specific details on how to file your motion to quash service.

What Can I Do if the summons was not served to me properly?

If you are not served properly, you can file a "Motion to Quash Service of Process." In this motion you will tell the court that you were not served properly. This motion needs to be filed with the court before you take any other action to fight the case. If you file another motion or pleading before you file this motion, you will not be allowed to fight the improper service.

Sometimes motions are combined to argue more than one thing in a motion. For example, you may combine a motion to quash service of process and a motion to dismiss the case. However, if you choose to combine your motion to quash service of process with any other motion, it must be in the same motion and it must be submitted before any other motions are submitted in the case.

What Should the Motion Say?

The motion must tell the judge three things:

  • that you were never served with a summons;
  • that no one who lives with you and who is 13 or older was served with your summons; and
  • that you never appeared in the lawsuit.

You will need to have this motion notarized. You should also add details about why the service was improper to help convince the judge. For example, if the sheriff says that he/she served you with the summons at 1276 Main Street but you live at 2276 Main Street, you should explain that in the motion and attach your utility bill from 2276 Main Street to support what you say. Or if the sheriff says he/she served a “22 year old” and you are 60 years old, you should point that out in your motion.

Find out from the clerk of the court how to file the motion and how to set it up for the court call. When it is on the court call, the judge will hold a hearing to decide if he/she will grant your motion. Also, send a copy of the motion and a notice to the other side of the case, telling them when the motion will be presented to the court.

What happens at the hearing?

You must tell the judge that you are trying to quash the service for lack of jurisdiction. Explain to the judge what you wrote in your motion, and tell the judge why the service was improper. If you have proof, like a utility bill or a witness, tell the judge about your proof.

If the judge grants your motion, the person trying to sue you will have to start the process over again. But, they can make you come back to court if they serve you properly.

Edited by Linda7

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After further investigation the Motion to Quash process of service is out so I have prepared a Response to the Claim by Cap One based on the Choice of Law SOL defense asking for dismissal....would appreciate any feedback...

Comes now the Defendant, Kevin T. O’Brien (appearing pro se), and files this ANSWER TO CLAIM AND MOTION TO DISMISS CLAIM in response to Complaint and Motion For Summary Judgment filed herein by Plaintiff, Capital One Bank (USA) N.A.. as follows:

All answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

COUNT 1- BREACH OF CREDIT CARD AGREEMENT

1- Admitted

2- Admitted

3- I am without sufficient information or knowledge of the allegations in

paragraph 3 of the Amended Complaint and, therefore, must deny same.

4- I am without sufficient information or knowledge of the allegations in

paragraph 4 of the Amended Complaint and, therefore, must deny same.

5- I am without sufficient information or knowledge of the allegations in

paragraph 5 of the Amended Complaint and, therefore, must deny same.

6- I am without sufficient information or knowledge of the allegations in

paragraph 6 of the Amended Complaint and, therefore, must deny same.

7- I am without sufficient information or knowledge of the allegations in

paragraph 7 of the Amended Complaint and, therefore, must deny same.

COUNT 2- ACCOUNT STATED

8- Admitted

9- I am without sufficient information or knowledge of the allegations in

paragraph 9 of the Amended Complaint and, therefore, must deny same.

10- I am without sufficient information or knowledge of the allegations in

paragraph 10 of the Amended Complaint and, therefore, must deny same.

11- I am without sufficient information or knowledge of the allegations in

paragraph 11 of the Amended Complaint and, therefore, must deny same.

Affirmative Defenses

As and for a First Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

As and for a Second Defense

Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted or will accept payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received or will receive other compensation in the form of monies and/or credits.

As and for a Third Defense

Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Collateral Estoppel.

As and for a Fourth Defense

Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

As and for a Fifth Defense

Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense has been lost or destroyed.

As and for a Sixth Defense

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

As and for a Seventh Defense

Defendant alleges that this action is time-barred under §8.01-246(4) of the laws of Virginia which states

personal actions based on contracts:

Subject to the provisions of §8.01-243 regarding injuries to person and property and of §8.01-245 regarding the application of limitations to fiduciaries and their bonds, actions founded upon a contract, other than actions on a judgment or decree, shall be brought within the following number of years next after the cause of action shall have accrued:

(4)In actions upon any unwritten contract, express or implied, within three years.

WHEREFORE, Defendant, Kevin T. O’Brien, respectfully submits that the Court should deny the Plaintiff's Request for Judgment, filed herein by Capital One Bank (USA) N.A. and prays for Dismissal of the complaint by the Plaintiff for damages of $984.40, together with pre-judgment interest, reasonable attorney’s fees of $300.00 and any other relief the court deems proper.

______________________________ ______________________________

Defendant, Dated

Kevin T. O’Brien

317 Flagler Avenue

New Smyrna beach, FL 32169

407-284-2103

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Secondly I have prepared a MSJ based on existing case law as best I could find it for Fla. Cap One customers....once again welcome any and all feed back....

MOTION FOR SUMMARY JUDGMENT IN FAVOR OF DEFENDANT

1-Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude additional unnecessary litigation of the issue in a suit on a different cause of action involving a party to the first case, and plaintiff’s claims are barred. In support of this action Defendant cites the following cases:

 502007SC016285 Capital One Bank v. Steven Pincus in the 15th Judicial Circuit for Palm Beach County Florida

“Therefore the court finds that the agreement at issue herein is an oral contract subject to Virginia’s three year statute on limitation which was violated by the filing of this action in excess of three years from the date of last transaction.”

 Capital One Bank v. Robert C. Cuellar Case 07-CC-12751 in the 13th Judicial Circuit for Hillsborough County Florida

“Accordingly, the Court finds that the arrangement between the parties constitutes an “unwritten” contract for purposes of the statute of limitations analysis, that Florida procedural law applies, that Florida procedural law, i.e., borrowing statute, dictates that Virginia’s shorter, three year statute of limitations applies and application of the three-year statute mandates that Defendant prevails on its Motion for Summary Judgment on the breach of contract count.”

 Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008

2-Defendant designates Virginia as the Choice of Law based on the clear and explicit language of the contract:

“Governing Law – WE MAKE THE DECISION TO GRANT CREDIT, OPEN AN ACCOUNT, AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. This Agreement is to be construed in accordance with and by the laws of the United States of America and by the internal laws of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of parties. This agreement is made in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal Law). If a court decides not to enforce a part of this Agreement, this Agreement will then read as if the unenforceable or invalid part were not there, but the remaining parts will remain in effect. “

©2005 Capital One Services, Inc

3-Florida courts have ruled in several cases that Choice of Law provisions contained in credit card agreements apply to statute of limitations claims (Capital One Bank v. Gelsey, 15 Fla. L. Weekly Supp. 64a., Capital One v. Tarpinian 15 FLW Supp. 856a Fla. Palm Beach County Court 2008.)

4-Florida courts consider the statute of limitations to be substantive, and therefore the statute of limitations of the parties' chosen forum (Virginia) should apply where there exists a contractual choice of laws provision. Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008. ("Under Florida rules, statutes of limitations are considered substantive in nature."); Pescatrice, 539 F.Supp.2d at 1379 See also Western Group Nurseries, Inc. v. Ergas, 211 F.Supp.2d 1362, 1366 (S.D.Fla.2002) (citing Fulton County Adm'r v. Sullivan, 753 So.2d 549, 553 (Fla. 1999); Merkle v. Robinson, 737 So.2d 540 (Fla.1999))

5-Under Virginia Law said contract is an oral contract based on:

Newport News Hampton & Old Point Dev. Co. v. Newport News Street Ry. Co. 32 S.E 789, 790 (Va. 1899) “nothing must be left open for future negotiation and agreement; otherwise it may not be enforced”; said agreement is subject to unilateral changes by the Plaintiff; there is no duration limitation to the agreement; and no specification of credit limit of interest rates.

In re. Banks Auto Parts 385 BR 142, 49 Bankr. Crt. Dec. 203 (Ed. Va. 2008) “a writing must contain the names of the parties and terms of the contract in order for the agreement to be a written contract.”

6-Statue of limitations for actions taken against unwritten (oral) contracts is 3 years under §8.01-246(4) of the laws of Virginia.

7-Last known activity on stated account based on documentation provided by Plaintiff is determined to be no later than January 2007.

SUMMARY

Choice of Law designating Virginia as the appropriate forum is clearly communicated in the aforementioned agreement and supported by case law in the State of Florida. Under Virginia law the contract is clearly defined as unwritten (oral) for which the Statute of Limitations is 3 years from date of last activity. Date of last activity is identified as January 2007. Accordingly, this action is in excess of three years from the date of last activity defining it as a time-barred transaction under §8.01-246(4) of the laws of Virginia.

WHEREFORE, Defendant, Kevin T. O’Brien, respectfully submits that the Court should deny the Plaintiff's Request for Judgment,filed herein by Capital One Bank (USA) N.A. and prays for Dismissal of the complaint by the Plaintiff for damages of $984.40, together with pre-judgment interest, reasonable attorney’s fees of $300.00 and any other relief the court deems proper.

______________________________ ______________________________

Defendant, Dated

Kevin T. O’Brien

317 Flagler Avenue

New Smyrna beach, FL 32169

407-284-2103

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[quote name=

According to FL case law, the SOL for credit card debt is 5 years.

.

Are you sure?

The statute of limitations on debt in Florida puts a time limit on the amount of time you can be sued for a debt.

Oral Contract: 4 years (credit cards)

Written Contract: 5 years

Promissory Note: 5 years

Open-Ended Accounts: 4 years

Edited by LearningasIgo

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Good stuff, great thread.

flanole - you may want to edit and remove the personal info (address/telephone number)from your post.

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For sure if you're in Florida, you should use the choice of law provision in Crapital One's CC agreement to use against them for the SOL.

Here's the case that started it all:

Capital One Bank V Pincus

For State’s that do not allow Foreign Statute of Limitations you might have the argument per the contract’s recitation that a foreign state’s law was adopted created an ambiguity that should be resolved against the drafter of the document by in fact giving the debtor the benefit of the foreign state’s SOL. The court would not and could not give the creditor a longer SOL by virtue of the creditor having chosen the foreign state’s laws in its cardholder agreement–but a shorter one may perhaps be afforded the debtor, if the court is willing to uphold a time-honored principle of contract law–that ambiguities are construed so as to favor the party that didn’t write the document.

Governing Law: “This Agreement is to be construed in accordance with and governed by the laws of the United States of America and by the Internal laws of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause this application of the laws of any jurisdiction other than the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of the parties. This Agreement is made in Virginia. It will be governed only by Federal Law, and Virginia law (to the extent permitted by Federal Law).

Virginia Codes

§ 8.01-246 3 years since either the last charge for goods or services or the last payment.

In actions on an open account, [the accrual period begins] from the later of the last payment or last charge for goods or services rendered on the account.

§ 8.01-246. Personal actions based on contracts.

2. In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not;

4. In actions upon any unwritten contract, express or implied, within three years.

§ 8.01-248. Personal actions for which no other limitation is specified.

Every personal action accruing on or after July 1, 1995, for which no limitation is otherwise prescribed, shall be brought within two years after the right to bring such action has accrued.

Edited by ctown18

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Are you sure?

The statute of limitations on debt in Florida puts a time limit on the amount of time you can be sued for a debt.

Oral Contract: 4 years (credit cards)

Written Contract: 5 years

Promissory Note: 5 years

Open-Ended Accounts: 4 years

It's strange. I found case law stating both.

Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008 states 5 years.

Pescatrice v. Orovitz, 539 F. Supp. 2d 1375 - Dist. Court, SD Florida 2008 states 4 years.

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