HELP Quickly Needed. How do I argue VA SOL?

[chiquita55]

My pretrial is Friday and my trial Monday and I am finishing up a trial brief. I want to argue for a VA sol instead of a CA one in the brief. I don't have a clue what I am doing. Can someone tell me what to say about that? Does anyone know the law on that and have any case law on it? I need to get this to the court today. yikes!

[nascar]

I have to ask why you, as a defendant, would want to argue Virginia statute of limitations in California?

Virginia, for "oral," is three, Cali is only two

Virginia, for "written," is five, Cali is four

[chiquita55]

Oh we have an argument in my trial brief for 2 years. but I also wanted to use the 3 years. I guess its 5 and not 3! sorry thanks for explaining! I dont have to worry about that now! I thought I had heard VA was 3 years and Cali was 4.

[Neo]

Chiquita, Resurgence Financial, Llc Vs P. Chambers

[chiquita55]

Thanks Neo. I will look that up. Boy am I under the gun and don't know what I am doing. lol After today I have to sit home and memorize my brief and try to understand it so I can argue it Monday!

[chiquita55]

Neo or Nascar, does Cap One have a deleware clause? Seadragon thinks it does so we have used this 2 year clause. Does anyone know for sure? I do see that the agreement says is is under the VA laws.

[1stStep]

Nice find

[nascar]

Neo or Nascar, does Cap One have a deleware clause? Seadragon thinks it does so we have used this 2 year clause. Does anyone know for sure? I do see that the agreement says is is under the VA laws.

Delaware is 3 and 3, at a minimum. Could be 6 under right circumstances

[legaleagle]

This is a great link; they show every SOL by state with a map, and provide links to the statutes.

Statutes of limitation for credit card debt collection, all 50 states

Here's the rub with Cap One.....I just read one of their cardholder agreements the other day on line. It clearly states a choice of law of VA but you waive all SOLs and they can use yours if it is longer. California is 4 years for credit cards according to the info they cite under statute 337. VA is 3.

[chiquita55]

UH OH, Well Seadragon wrote it up using that 2 year thing and the brief has been filed now. Hope there is alot of other ammunition. I don't know why he thought it had the Delaware clause. Maybe he can explain here later his thoughts.

[Savoir]

This is a great link; they show every SOL by state with a map, and provide links to the statutes.

Statutes of limitation for credit card debt collection, all 50 states

Here's the rub with Cap One.....I just read one of their cardholder agreements the other day on line. It clearly states a choice of law of VA but you waive all SOLs and they can use yours if it is longer. California is 4 years for credit cards according to the info they cite under statute 337. VA is 3.

In this thread you stated something different .....

[Seadragon]

friend who didn't know what to write. Now the understanding part.

In the brief for the non written implied alleged agreement it coveras the 2 year CALIFORNIA statute for non written SOL. Deleware was mentioned a long time ago but after research found it was a virginia choice of law. That is the reason the brief brings up the 2 year.

I am glad I could help Chiquitta52.

Ultimately when being helped here everyone is going to have to second check all of us.

California non written agreement(including implied adhesion contracts) 2 yrs.

Glad to help

[chiquita55]

OK Seadragon you are going to need to explain this further before Monday! I am kind of lost but man do I appreciate all your help. I wish we had longer to or that I had longer for all this to sink it. It has been a whirl wind . I will sure be glad when this is over!! I don't think the others on this thread have heard of the 2 year sol. I was hoping someone did earlier today....

[legaleagle]

In this thread you stated something different .....

The thread you linked to is about Trak America and FIA, which is in Delaware. This is a Cap 1 case. They are in VA.

[legaleagle]

VA Statute.....I think para 4 is the one. I like that because it sounds in account stated.

§ 8.01-246. 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:

1. In actions or upon a recognizance, except recognizance of bail in a civil suit, within ten years; and in actions or motions upon a recognizance of bail in a civil suit, within three years, omitting from the computation of such three years such time as the right to sue out such execution shall have been suspended by injunction, supersedeas or other process;

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;

3. In actions by a partner against another for settlement of the partnership account or in actions upon accounts concerning the trade of merchandise between merchant and merchant, their factors, or servants, within five years from the cessation of the dealings in which they are interested together;

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

Provided that as to any action to which § 8.2-725 of the Uniform Commercial Code is applicable, that section shall be controlling except that in products liability actions for injury to person and for injury to property, other than the property subject to contract, the limitation prescribed in § 8.01-243 shall apply.

(Code 1950, §§ 8-13, 8-17, 8-23; 1964, c. 219; 1966, c. 118; 1977, c. 617.)

------------------------------------------------------------------

California statute:

337. Within four years: 1. An action upon any contract, obligation

or liability founded upon an instrument in writing, except as

provided in Section 336a of this code; provided, that the time within

which any action for a money judgment for the balance due upon an

obligation for the payment of which a deed of trust or mortgage with

power of sale upon real property or any interest therein was given as

security, following the exercise of the power of sale in such deed

of trust or mortgage, may be brought shall not extend beyond three

months after the time of sale under such deed of trust or mortgage.

2. An action to recover (1) upon a book account whether consisting

of one or more entries; (2) upon an account stated based upon an

account in writing, but the acknowledgment of the account stated need

not be in writing; (3) a balance due upon a mutual, open and current

account, the items of which are in writing; provided, however, that

where an account stated is based upon an account of one item, the

time shall begin to run from the date of said item, and where an

account stated is based upon an account of more than one item, the

time shall begin to run from the date of the last item.

3. An action based upon the rescission of a contract in writing.

The time begins to run from the date upon which the facts that

entitle the aggrieved party to rescind occurred. Where the ground for

rescission is fraud or mistake, the time does not begin to run until

the discovery by the aggrieved party of the facts constituting the

fraud or mistake. Where the ground for rescission is

misrepresentation under Section 359 of the Insurance Code, the time

does not begin to run until the representation becomes false.

[legaleagle]

Neo or Nascar, does Cap One have a deleware clause? Seadragon thinks it does so we have used this 2 year clause. Does anyone know for sure? I do see that the agreement says is is under the VA laws.

I think he has his banks mixed up. Chase is in DE, not Cap 1. The Cap 1 agreement can use either SOL, yours or theirs.

[chiquita55]

-----the non written implied alleged agreement it coveras the 2 year CALIFORNIA statute for non written SOL -----------------

I can't find this law for above. If anyone can, please let me know. But what Seadragon is saying I think is that Cap One claims that they wrote me or that they told me about this debt and that they were going to sue me. They also claim that their is an implied agreement about the debt.

However, that is not true. I never received anything regarding this debt until I got a subpoena from them. Seadragon says there was no meeting of the minds. There wasn't. So thats why he says that it falls under the comment in the first line. I don't know that I understand this well enough to talk about it in court which is why I was looking for more info. I also need a copy of this 'law' that states that. I think Seadragon sent it to me at one time but I can't find it now. Trying to get everything in order!

[BV80]

Take a look at this case for choice of law:

Resurgence Financial, LLC v. Chambers - Google Scholar

[BV80]

I don't believe the 2 year SOL will work for you.

339. Within two years: 1. An action upon a contract, obligation or

liability not founded upon an instrument of writing, except as

provided in Section 2725 of the Commercial Code or subdivision 2 of

Section 337 of this code;

The above states that the 2 year SOL does not apply to actions based on subdivision 2 of section 337.

337. Within four years

2. An action to recover (1) upon a book account whether consisting

of one or more entries; (2) upon an account stated based upon an

account in writing, but the acknowledgment of the account stated need

not be in writing; (3) a balance due upon a mutual, open and current

account, the items of which are in writing; provided, however, that

where an account stated is based upon an account of one item, the

time shall begin to run from the date of said item, and where an

account stated is based upon an account of more than one item, the

time shall begin to run from the date of the last item.

[chiquita55]

I am going to wait and see what Seadragon says about this. I will let him know to check out the thread and comment. I don't even know what that is saying above. lol

[legaleagle]

It means an oral agreement. Your SOL is 4 years.

[Seadragon]

each purchase, and that the non disputing of the billing statement is an adhesion agreement.

It is implied and not written and not an oral contract so 2 years would apply (if the do not have charge slips).

So that is why I argue that and who knows thre judge may like it and rule in your favor. Do you think a CA is gonna appeal and make new case law? California doesn't have alot of collections caselaw(That is because CA's dont want the appellate looking into their shenanigans.

Of course I may be wrong but does it hurt anything putting it in no?

[chiquita55]

What case law are you using for this argument Seadragon? Wouldn't you have to quote some kind of case law to support this?