SOL Oregon vs contracts

[Happybluesky]

Noted recent posts concerning Stuttel Hammer suing for Capital One in Oregon.

OR SOL is 6 years, but Stuttel Hammer is in WA, which has an SOL of 3 years.

OR SOL is 6 years, but Capital One may specify VA law in its CC contracts, and I believe SOL in VA is 3 years.

Would one or both of the above facts provide a valid Affirmative Defense for the period between 3 and 6 years?

Also, can the list clarify:

1. The issue of precisely when the SOL begins.

2. For folks close to the SOL, what action the creditor has to take satisfy the requirement of being within the SOL, and anything the alleged debtor can do to delay the creditor.

As a special case, if the first demand letter came shortly before the SOL, would one buy more time by DVing just shy of 30 days later, or by just ignoring the letter, hoping for more dunning letters? If the collector was not positive of whereabouts of alleged debtor, wouldn't DV confirm that for them, possibly hastening a lawsuit?

[BV80]

You're referring to choice of law or conflict of laws. Some states will allow the SOL for another state, while some don't. You need to check your state laws.

1. See if your state statutes specify. My state specifies that the SOL begins on the date of default. That's when a payment is due, but the payment is never made. Usually that would be the month after your very last payment.

2. A creditor can show the date of last payment by providing a cc statement. What do you mean by delaying the creditor?

A DV request wouldn't delay the SOL. Yes, a DV request would confirm your location providing you give your correct address.

[Happybluesky]

Thread starter following up on BV80's response:

By delaying creditor, I was referring to stalling for time with an approaching SOL. I wonder if timely DVing might be counterproductive in this case.

A discussion on delaying tactics, and the advisability of DVing in this case, would be very useful.

[drummer55]

pay attention to 3 cases sitting in the Oregon appeals court. They deal with whether or not Oregonians can use Delaware's SOL. District court said yes we could in all 3 cases and ole dg is appealing everyone of em.

go to State of Oregon Law Library Digital Search Collection State of Oregon Law Library Digital Search Collection the 3 cases to search for are..

A 144594

A 146957

A 144530

from what I understand these cases should be decided on very soon.

the appeals site is VERY useful and will lead you to other peoples success's and failures.

[legaleagle]

Doesn't matter where the lawyer is located. Cap 1 is 3 years or yours, whichever is longer. Not sure when they started that, you have to get a credit card agreement for when you opened the account. I doubt they can get away with changing the SOL at a later time. If the collections lawyer shows up in court and says "mine is longer than yours," make him prove it.

[BV80]

Thread starter following up on BV80's response:

By delaying creditor, I was referring to stalling for time with an approaching SOL. I wonder if timely DVing might be counterproductive in this case.

A discussion on delaying tactics, and the advisability of DVing in this case, would be very useful.

Added note: Once a lawsuit has been filed, the SOL is tolled. The SOL clock stops running.

[Huey Pilot]

Noted recent posts concerning Stuttel Hammer suing for Capital One in Oregon.

OR SOL is 6 years, but Stuttel Hammer is in WA, which has an SOL of 3 years.

OR SOL is 6 years, but Capital One may specify VA law in its CC contracts, and I believe SOL in VA is 3 years.

Would one or both of the above facts provide a valid Affirmative Defense for the period between 3 and 6 years?

Also, can the list clarify:

1. The issue of precisely when the SOL begins.

2. For folks close to the SOL, what action the creditor has to take satisfy the requirement of being within the SOL, and anything the alleged debtor can do to delay the creditor.

As a special case, if the first demand letter came shortly before the SOL, would one buy more time by DVing just shy of 30 days later, or by just ignoring the letter, hoping for more dunning letters? If the collector was not positive of whereabouts of alleged debtor, wouldn't DV confirm that for them, possibly hastening a lawsuit?

Oregon Statutes of Limitation

Unlawful trade practices: 1 year, (ORS 646.638(5).

NOTE: There is no statute of limitations for a cause of action brought as a counterclaim to an action by the seller. (ORS 646.638(6)).

Contract or liability: 6 years, (ORS 12.080)

Judgment: 10 years, (ORS 12.070

12.090 Accounts; accrual of cause of action. In an action to recover a balance due upon an account, the cause of action shall be deemed to have accrued from the time of the last charge or payment proved in the account. Interest, financing and carrying charges shall not be deemed such a charge. [Amended by 1973 c.204 §1]

12.080 Action on certain contracts or liabilities. (1) An action upon a contract or liability, express or implied, excepting those mentioned in ORS 12.070, 12.110 and 12.135 and except as otherwise provided in ORS 72.7250;

(2) An action upon a liability created by statute, other than a penalty or forfeiture, excepting those mentioned in ORS 12.110;

(3) An action for waste or trespass upon or for interference with or injury to any interest of another in real property, excepting those mentioned in ORS 12.050, 12.060, 12.135, 12.137 and 273.241; or

(4) An action for taking, detaining or injuring personal property, including an action for the specific recovery thereof, excepting an action mentioned in ORS 12.137; shall be commenced within six years. [Amended by 1957 c.374 §3; 1961 c.726 §396; 1973 c.363 §1; 1983 c.437 §2; 1987 c.705 §3; 1991 c.968 §2]

Here is "Precisely your answer" on the statute stuff. Are you being sued at this time? If not you will want to be very careful about putting anything in writing that might restart the toll. If you are close you might be able to wait them out.

Drummer55 filed an motion to dismiss with preference of Virginia Law (3 Year SOL) in lieu of an answer to his Virginia tolled lawsuit. Oregon recognizes Law's of other States.

HP

[BV80]

Oregon recognizes Law's of other States.

Here's a case you might want to review. In Avery v. First Resolution Management, Avery, an Oregon resident, filed an FDCPA claim against First Resolution, a JDB, for filing suit outside the SOL. First Resolution bought her defaulted account from Providian. They filed suit within OR's SOL of 6 years. They eventually dismissed because basically the case wasn't worth the time and effort.

Avery filed her claim in OR District Court stating that First Resolution violated the FDCPA for filing outside the SOL. Providian, the OC, was based in New Hampshire which has a 3 year SOL. She lost. She appealed to the 9th Circuit Court of Appeals. The 9th Circuit ruled that NH's SOL applied, BUT so did NH's tolling statute. NH law states if you leave the state, the SOL is tolled. The 9th Circuit ruled that because Avery never resided in NH, the SOL was tolled, and, as a result, First Resolution did not file suit outside NH's 3 year SOL. In other words, if another state's SOL applies, other statutes from that state relating to the SOL apply, as well.

Excerpt from the ruling:

"Because Avery was absent from New Hampshire at all relevant times, the statute of limitations on the claim against her was tolled under New Hampshire law and had not run by the time the Attorneys brought suit against her in Oregon."

Avery v. First Resolution - Google Scholar

[Huey Pilot]

BV80,

Thanks for the info. Excellent read but a little confusing.

I've read the trial brief a couple of times on this as well as the appeal. It seems like Avery was doing pretty good until she filed suit for FDCPA violations. Probably would never have been retried?

Correct me if I'm wrong but this appears to read Avery prevailed on the Appeal but lost on the attorney fee's.

The potential case law coming out of this is that foreign contract SOL is binding in the OC's State where credit card agreement stated on the original Credit card terms of agreement. Attorney fee's are a separate issue binding only if money is collected when the law suite actions is taken in the defendants present county of residence. Sound like Avery pays attorney fee's but to whom? Also since no collections are authorized for debt repayment it appears fee's for the plaintiff are not authorized?

HP

Edited February 13, 2012 by Huey Pilot
Spelling error.

[BV80]

BV80,

Thanks for the info. Excellent read but a little confusing.

I've read the trial brief a couple of times on this as well as the appeal. It seems like Avery was doing pretty good until she filed suit for FDCPA violations. Probably would never have been retried?

Correct me if I'm wrong but this appears to read Avery prevailed on the Appeal but lost on the attorney fee's.

The potential case law coming out of this is that foreign contract SOL is binding in the OC's State where credit card agreement stated on the original Credit card terms of agreement. Attorney fee's are a separate issue binding only if money is collected when the law suite actions is taken in the defendants present county of residence.

HP

No...she didn't prevail on appeal. First Resolution filed a counterclaim for the debt and the district court dismissed it. BUT, Avery filed for a violation of the FDCPA. The OR District court ruled that First Resolution did not violate the FDCPA. Avery lost, and that's what she appealed in the 9th circuit court along with appealing for her attorney's fees.

The 9th Circuit agreed with the district court about the FDCPA claim and affirmed the ruling on the attorney's fees.

"Accordingly, the district court did not err in granting summary judgment to the Attorneys on the claim that they had violated the FDCPA by attempting to collect on a time-barred debt."

It is a little confusing. I had to read it several times.