Another question on SOLs

[donqII]

What are the chances that if your state SOL differs

from a creditors choice of law, that they will pull that

card, if you are sued after an SOL has run out in your state.

Example: In Pa. the SOL for credit card debt is 4 years.

Cit*'s choice of law is South Dakota and that is 6 years.

Are they going to extend things if they try and sue

after my state's 4 years?

In the reverse,

Fi*'s choice is Del. which is 3 years.

If they bring suit will I be successful to argue that by

their choice Del.'s 3 years puts my account at time barred?

I am not close to either of 3 or 4 years but just trying

to prepare...

[jackson212]

choice of law has always made my eyes bleed.

i would think that the state's statute of limitations laws would apply, not the choice of law, but what do i know.

im subscribing to this thread though want to see the outcome

Edited July 27, 2011 by jackson212

[nobk4me]

Not clear how a judge may rule. Have you checked case law on this in your state?

However, an arbitrator (in JAMS) may be more likely to rule in your favor.

[BV80]

It seems the cc companies sometimes want to apply more than one state's laws to the case. For instance, they'll request to be awarded their state's post judgment interest rate, but they want to use your state's SOL. It would seem to me that they can't have it both ways.

Edited July 28, 2011 by BV80

[TheSarge2]

I have found PA caselaw enforcing the "choice of law" clause.....

search Boise v Sonoco (too new to hyperlink it)....but a quote out of the case:

"Under the Agreement, both Boise and Sonoco explicitly agreed that Delaware law would govern the interpretation and performance of the Agreement.4 It is well settled Pennsylvania law that “if the parties have designated that the law of a particular state should apply to their agreement, then Pennsylvania courts typically will apply that choice of law provision.”

The keyword being "typically" tho.....

[jackson212]

here is the link to the case, its from 2002

http://www.courts.phila.gov/pdf/cpcvcomprg/boise503.pdf

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CIVIL TRIAL DIVISION

:

BOISE CASCADE CORPORATION, :

:

Plaintiff, :

v. :

:

SONOCO PRODUCTS COMPANY, :

January Term, 2002

No. 3939

Commerce Court

Control No.: 021749

[tempteroffate]

As the case you cited mentions, it comes down to substantive vs procedural laws and how the court chooses to apply them.

It has been argued that SoL is a procedural law (someone please correct me if I have this backwards) and so typically it will be the laws of the state that the case is being heard in that will be upheld.

In my wife's current case, we have argued that the JDB (Midland) should be applying the Applicable Law clause for the Credit Card account they purchased and are suing over. As such, we provided card member agreements for the credit card (three versions) and pointed to the two states those three agreements selected as applicable law and pointed out that the alleged debt was time-barred based on the SoL laws of those states. In response, the JDB motioned to have our counterclaim dismissed claiming we shouldn't be using the applicable law clauses and should be using the laws of our state. Our response, of course, was fine, but even in CO they're outside the SoL (if applied as we interpret it) and submitted a legal brief supporting our interpretation of the SoL for credit cards in CO.

The judge in the case opted to hold the ruling on the motion until trial and the plaintiffs are scheduling the trial date in about a week and a half, so for now, we're proceeding as normal and waiting for the plaintiffs to schedule the trial date and then will hit them with rfa's, rogs and discovery. I asked and in our county we aren't required to get permission from the judge to do discovery.

[jq26]

Great thread. And this is where you argue for whatever helps your case. For the most part, this is unsettled law. Choice of law is a real pain in keyster.

So if your state law puts the debt beyond the SoL, then argue that SoL is procedural and not substantive. If toher way around, argue that the SoL was agreed upon by the choice of law provision. Obviously, the plaintiff will argue the flipside to that argument. But even making the argument puts time/effort and another hurdle between you and a judgment.

[donqII]

I have found PA caselaw enforcing the "choice of law" clause.....

search Boise v Sonoco (too new to hyperlink it)....but a quote out of the case:

"Under the Agreement, both Boise and Sonoco explicitly agreed that Delaware law would govern the interpretation and performance of the Agreement.4 It is well settled Pennsylvania law that “if the parties have designated that the law of a particular state should apply to their agreement, then Pennsylvania courts typically will apply that choice of law provision.”

The keyword being "typically" tho.....

This is interesting in that both plaintiff and defendant agree for Delaware law and it is suggested as substantive law.

There is a consumer atty. in Pa. who is all over the web in my area.

He says in his blogs and such that if you are past 4year in Pa. you are out of

SOL.

While most of mine fall in the Pa. 4 year SOL time span or less, I worry about Cit* as they are 6 years for their choice of law state

I do know one person in JAMS right now with Cit*.

In the beginning they were fine with VA as choice of law, but

when they submitted their brief, they noted it would be SD

which got me thinking...

[jackson212]

In the beginning they were fine with VA as choice of law, but

when they submitted their brief, they noted it would be SD

which got me thinking...

how does VA come into all this? i am not familiar with C*ti and its tactics.

[donqII]

how does VA come into all this? i am not familiar with C*ti and its tactics.

A friend of mine was sued by C*ti. In VA.

This friend is pretty far along in JAMS.

In the early stages choice of law was discussed and C*ti

was fine with VA as the choice of law.

But now a briefs have been exchanged and C*ti in theirs,

did a subnote claiming choice of law to be SD...

Has to be for their anticipated win.... judgment wise

if they prevail.