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Being Sued in Michigan by Portfolio Recovery Associates, VA


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Hello,

I have a couple of questions regarding the Michigan Statute of Limitations concerning recovery of collection debts: Pursuant to MCL 600.5807(8); the statute of limitations is 6 years. I have also found that it begins to run "In actions brought to recover the balance due upon a mutual and open account current, the claim accrues at the time of the last item proved in the account.

Is this accurate?

What is considered the last item proved to the account in Michigan? My last payment, or the fees levied by the credit card company afterwards?

Complaint is dated 11/9/11; my last payment was June of 2005. My credit report confirms.

Thank you so much, likley more to follow....

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I believe so as well. Most SOLs start to toll when the last payment is made. You may want to check the choice of law provision in the CC agreement. If it is VA, I believe they have a SOL of 3 years. If that benefits your situation, use it against them. They like their choice of law so much, let's see how they like it if it defeats their claim. Check my posts, there is some sort of UCC type law six states have that may affect this. I posted it a few days ago.

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The following case law is from a U.S. District Court in MI, but it would be persuasive in your court:

"Under MCL § 600.5807(8) the controlling statute of limitations for the collection of past due debts is (6) six years from the date the cause of action accrues. Section 600.5831 further provides that, 'n actions brought to recover the balance due upon a mutual and open account, the claim accrues at the time of the last item proved in the account.'" Charbonneau v. Mary Jane Elliott, PC, 611 F. Supp. 2d 736 - Dist. Court, ED Michigan 2009

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If there's no case law, you can request proof of the date in discovery. Request a copy of the statement showing the date of last payment. You can also get copies of your bank statements from June, 2005 and several months after to show that you made no more payments after June. You would just need to get the statements authenticated.

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I believe it could be addmitted under evidence even if considered hearsay. I think a credit report meets exception 17 in the Mihcigan Rules of Evidence: Here is what I found so far, maybe it will help somone else also if I am right:

In the

MICHIGAN RULES OF EVIDENCE

RULES 101-106

Hearsay is not admissible except as provided by these rules.

Rule 803 Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

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I believe it could be addmitted under evidence even if considered hearsay. I think a credit report meets exception 17 in the Mihcigan Rules of Evidence:

Possibly, or the business records exception. In either case however, there must be foundational testimony from the custodian of the records or other qualified witness, and the declarant (you) are neither of those.

Have you considered how difficult it may be to get an approprate witness from the credit reporting agency to appear and testify on your behalf?

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How do I get a docuement authenticated? Also, what if the account is closed?

Thanks!!

All you have to do is go to the bank and ask if they still have records of your account. If they do, the bank employee who makes copies for you can sign an affidavit stating his/her name, that he/she is an employee of ______ Bank, that the copies of the statements are true and correct, and that they were made at or near the time of the event...something like that. Just go by the JDB's affidavit.

Most banks have a notary, so the notary can witness the bank employee's signature and notarize the affidavit.

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Why go through this? You didn't give us the most important piece of information. Who issued the credit card? If the CC cardholder agreement specifies VA law, go to court and wave it at the judge. Tell him they demanded it, you agreed to it, and therefore the court should not set it aside under lex loci. The SOL in VA is 3 years. Too bad for them. Chase lost a few because of this, I posted that also. If it is someone else, check the SOL for the bank's home state.

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I've been trying to find the orignal card agreement. It was an Orchard Bank Card issued by HSBC Bank. SO far inmy e-mail searches, They only have P.O. Boxes, but the original card agreement must have the address of the issuing bank. Looks to be Nevada from everything online. If I can verify it's Nevada, it looks like 4 years...BOOYA!

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I've been trying to find the orignal card agreement. It was an Orchard Bank Card issued by HSBC Bank. SO far inmy e-mail searches, They only have P.O. Boxes, but the original card agreement must have the address of the issuing bank. Looks to be Nevada from everything online. If I can verify it's Nevada, it looks like 4 years...BOOYA!

You need to find out if Michigan has a choice of law provision. If it does, find out if the provision allows for choice of law in credit card contracts. I'd call an attorney and just ask those questions.

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Correct, it is Nevada.

HSBC Privacy and Security Policy

Here is the statute: it's a bit vague. Intrument in writing seems to be the sticking point. They will argue that the cardholder agreement is exactly that.

NRS 11.190 Periods of limitation. Except as otherwise provided in NRS 125B.050 and 217.007, actions other than those for the recovery of real property, unless further limited by specific statute, may only be commenced as follows:

1. Within 6 years:

(a) An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States, or the renewal thereof.

(B) An action upon a contract, obligation or liability founded upon an instrument in writing, except those mentioned in the preceding sections of this chapter.

2. Within 4 years:

(a) An action on an open account for goods, wares and merchandise sold and delivered.

(B) An action for any article charged on an account in a store.

© An action upon a contract, obligation or liability not founded upon an instrument in writing.

(d) An action against a person alleged to have committed a deceptive trade practice in violation of NRS 598.0903 to 598.0999, inclusive, but the cause of action shall be deemed to accrue when the aggrieved party discovers, or by the exercise of due diligence should have discovered, the facts constituting the deceptive trade practice.

3. Within 3 years:

(a) An action upon a liability created by statute, other than a penalty or forfeiture.

(B) An action for waste or trespass of real property, but when the waste or trespass is committed by means of underground works upon any mining claim, the cause of action shall be deemed to accrue upon the discovery by the aggrieved party of the facts constituting the waste or trespass.

© An action for taking, detaining or injuring personal property, including actions for specific recovery thereof, but in all cases where the subject of the action is a domestic animal usually included in the term “livestock,” which has a recorded mark or brand upon it at the time of its loss, and which strays or is stolen from the true owner without the owner’s fault, the statute does not begin to run against an action for the recovery of the animal until the owner has actual knowledge of such facts as would put a reasonable person upon inquiry as to the possession thereof by the defendant.

(d) Except as otherwise provided in NRS 112.230 and 166.170, an action for relief on the ground of fraud or mistake, but the cause of action in such a case shall be deemed to accrue upon the discovery by the aggrieved party of the facts constituting the fraud or mistake.

(e) An action pursuant to NRS 40.750 for damages sustained by a financial institution or other lender because of its reliance on certain fraudulent conduct of a borrower, but the cause of action in such a case shall be deemed to accrue upon the discovery by the financial institution or other lender of the facts constituting the concealment or false statement.

4. Within 2 years:

(a) An action against a sheriff, coroner or constable upon liability incurred by acting in his or her official capacity and in virtue of his or her office, or by the omission of an official duty, including the nonpayment of money collected upon an execution.

(B) An action upon a statute for a penalty or forfeiture, where the action is given to a person or the State, or both, except when the statute imposing it prescribes a different limitation.

© An action for libel, slander, assault, battery, false imprisonment or seduction.

(d) An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process.

(e) Except as otherwise provided in NRS 11.215, an action to recover damages for injuries to a person or for the death of a person caused by the wrongful act or neglect of another. The provisions of this paragraph relating to an action to recover damages for injuries to a person apply only to causes of action which accrue after March 20, 1951.

(f) An action to recover damages under NRS 41.740.

5. Within 1 year:

(a) An action against an officer, or officer de facto to recover goods, wares, merchandise or other property seized by the officer in his or her official capacity, as tax collector, or to recover the price or value of goods, wares, merchandise or other personal property so seized, or for damages for the seizure, detention or sale of, or injury to, goods, wares, merchandise or other personal property seized, or for damages done to any person or property in making the seizure.

(B) An action against an officer, or officer de facto for money paid to the officer under protest, or seized by the officer in his or her official capacity, as a collector of taxes, and which, it is claimed, ought to be refunded.

[1911 CPA § 25; A 1951, 247]—(NRS A 1965, 948, 1415; 1967, 113; 1981, 1023, 1885; 1983, 612; 1985, 698; 1987, 14, 1346; 1991, 117; 1993, 454, 2628; 1997, 1591; 1999, 1238; 2005, 1424; 2007, 742, 2472, 2848)

NRS 11.200 Computation of time. The time in NRS 11.190 shall be deemed to date from the last transaction or the last item charged or last credit given; and whenever any payment on principal or interest has been or shall be made upon an existing contract, whether it be a bill of exchange, promissory note or other evidence of indebtedness if such payment be made after the same shall have become due, the limitation shall commence from the time the last payment was made.

[1911 CPA § 26; RL § 4968; NCL § 8525]

See the difference? You'd have to prove there was no instrument in writing. Even so, June 2005 add 6 yrs equals June 2011. I think they lose either way.

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All you need to show the court is that the SOL has expired. In your answer to the complaint simply deny all claims and state that the debt is past the SOL. Attach proof of last payment and ask for the judge to dismiss.

Then turn around and hire a Consumer Law Attorney to sue the JDB for filing a fraudulent lawsuit and violations under the FDCPA..if you are in the Detroit area, I have a great one that will sue this JDB for free. He will have the case settled in less than a month. He has represented me in suing 4 Collection Agencies/JDBs and I have gotten settlements from each of them.

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To start, thanks for the info everyone!

I don't have any solid record of last payment at this point...just my credit report, an e-mail confirming that payment, but no statements...looking into choice of law to make an SOL AD bulletproof using their affidavit asserting ownership in 2006 against them (definitely no payments since then can be verified by thier redcords, if they have them...)

...SOL Nevada 4 years...Virginia 3 years as mentioned by Eagle...

I also haven't found any case law for certain in Michigan that it's the date of the last payment that starts the SOL. Any leads here would be much appreciated!

I have considered getting the bank statements from that time, but my concern is that I have no way to prove a payment wasn't made from another account or elsewhere....

Weigh in please!

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To start, thanks for the info everyone!

I don't have any solid record of last payment at this point...just my credit report, an e-mail confirming that payment, but no statements...looking into choice of law to make an SOL AD bulletproof using their affidavit asserting ownership in 2006 against them (definitely no payments since then can be verified by thier redcords, if they have them...)

...SOL Nevada 4 years...Virginia 3 years as mentioned by Eagle...

I also haven't found any case law for certain in Michigan that it's the date of the last payment that starts the SOL. Any leads here would be much appreciated!

I have considered getting the bank statements from that time, but my concern is that I have no way to prove a payment wasn't made from another account or elsewhere....

Weigh in please!

600.5807 Damages for breaches of contract; specific performance; fiduciary bonds; deeds; mortgages; surety bonds; appeal bonds; public obligations.

Sec. 5807.

No person may bring or maintain any action to recover damages or sums due for breach of contract, or to enforce the specific performance of any contract unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.

600.5831 Accrual of claim; mutual and open account current.

Sec. 5831.

In actions brought to recover the balance due upon a mutual and open account current, the claim accrues at the time of the last item proved in the account.

600.5827 Accrual of claim.

Sec. 5827.

Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.

Those sections state that a claim first accrues or begins at the time the damage occurs. In my opinion, that is the date of default...the month a payment was due but you never paid again.

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Those sections state that a claim first accrues or begins at the time the damage occurs. In my opinion, that is the date of default...the month a payment was due but you never paid again.

That's the question for me- what defines default? 30 days after the last payment would be July, but OC's usually don't officially default the account for 90 days (nice way to get fees). If it's the last payment, I'm golden, if it's default, then what defines default in Michigan? If I have to go by Michigan SOL of 6 years, then it will come down to the exact day.

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Those sections state that a claim first accrues or begins at the time the damage occurs. In my opinion, that is the date of default...the month a payment was due but you never paid again.

That's the question for me- what defines default? 30 days after the last payment would be July, but OC's usually don't officially default the account for 90 days (nice way to get fees). If it's the last payment, I'm golden, if it's default, then what defines default in Michigan? If I have to go by Michigan SOL of 6 years, then it will come down to the exact day.

Here's some case law:

"Under MCL § 600.5807(8) the controlling statute of limitations for the collection of past due debts is (6) six years from the date the cause of action accrues. Section 600.5831 further provides that, 'n actions brought to recover the balance due upon a mutual and open account, the claim accrues at the time of the last item proved in the account.'"Charbonneau v. Mary Jane Elliott, PC, 611 F. Supp. 2d 736 - Dist. Court, ED Michigan 2009

Whenever there's any uncertainty, it's best to contact an attorney. Call the Lawyer Referral Service at the MI Bar Association. Request the name of an attorney in your area. Because you got his name from the bar association, he'll give you a consultation either for free, or at a reduced rate. Some attorneys will even provide the consultation over the phone. He could give you a firm answer regarding the SOL and choice of law. That way, you'll have no doubts.

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Default is a generic term that means you failed to fulfill the obligations of your contract. The exact terms will be defined in the cardholder agreement; 30 days, 60 days, etc. The clock starts to run the day after the last payment was due from what I understand, or it could be the day after the last pmt was made. Someone here will know that technicality. The SOL is whatever state the cardholder agreement choice of law happens to be. You use their SOL, not yours.

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