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SOL and Tolling

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My understanding is tolling (pausing) of a statute of limitations occurs once a debt collector files suit.

My case is that I'm being sued by Midland Funding LLC on a Chase Bank credit card that defaulted on 2-26-09 (date of last payment). The SOL determined here was 3 years from that date, based on a combination of NY law (where I live) and Delaware law (location of Chase).

The debt collector however filed suit in Oct 2011 prior to my expected SOL expiration (3-26-12) date, which I take means I cannot now raise the SOL defense until after the present case is, hopefully, dismissed and another introduced?

What's unclear is does my SOL reset after the present case ends? or does it resume from the month where the previous case had stopped it? It seems like this would give the JDB nearly unlimited time to try different cases.

Edited by RichardJ
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Great, thanks for the response(s) above.

What makee you think it will be dismissed?

I'm not sure, it was to pose the question of how the SOL would proceed from the date of tolling.


What's going on with my case is this:

I have not acknowledged the debt, and requested signed contracts. Midland has only a few billing statements, and no signed contracts. Their case is based on an "account stated" and breach of contract. I'm still investigating some proper defenses on that.

Also, Midland has not shown a chain of ownership on the debt which links to the original creditor. I'll included that in my defense. They show a single purchase from another JDB, but even that was not included in their motion for summary judgment. I'm guessing it's because I didn't bring it up. I'm hoping that has more teeth, the problem is I did not raise that as an "affirmative defense" in my response to the summons. Still investigating if I can amend my response to the summons with the local court here.

Edited by RichardJ
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What court are you in? NYC and upstate are different.

Upstate NY, Niagara County, just outside of Buffalo.

The JDB has motioned for summary judgment, a prima facia case based on a few credit card statements. They have no signed contract, a few billing statements, and no contract linking chain ownership to the OC (it was purchased from another JDB).

The cause of action appears to be:

Defendant received these monthly statements and retained them for a reasonable time without objection, thereby clearly establishing an account stated.

It goes on to list citations of cases won on "account stated" and how usage of the credit card establishes valid credit card agreement or contract, and my acceptance of it. Finally, that it is up ot me to produce "evidententiary proof of the existence of a triable issue of fact."

Next day in court, May 19. I quickly fired off a letter of discovery to their attorneys, and plan to file motion of discovery with the court this week. I asked for complete billing statements establishing the entire amount requested ($8,000), proof of contracts with OC or the chain of assignees, affidavit from individual who assembled plaintiff's billing statements, etc,...

I'm in the process of drafting my Opposition to Summary Judgment, I guess the weekpoints I see here is they don't own the OC contract, and the HERESAY defense on the billing statements not being affirmed for court as official custodian of records.

Thanks, any other holes you see?, suggestions helpful. :)

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usage of the credit card establishes valid credit card agreement or contract, and my acceptance of it.

Did they cite New York case law? Not all states have this use and acceptance crap. Some that do incorporate it into state banking law, which you can argue does not apply to national banks. Incomplete discovery may not work in NY either. See below, this is from a NY law firm.

Summary judgment motions may be brought at any time after an issue is joined. CPLR 3212. Completion of discovery is not a requisite before the court can grant a summary judgment motion. Chemical Bank v. PIC Motors Corp., 58 N.Y.2d 1023,1026 (1983); Naryaev v. Solon, 6 A.D.3d 510 (2d Dep’t 2004); Herba v. Chichester, 301 A.D.2d 822 (3d Dep’t 2003). “The mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient.” Naryaev, 6 A.D.3d at 510; Jones v. Gameray, 153 A.D.2d 550 (2d Dep’t 1989). A party opposing summary judgment on the basis of requiring discovery must prove that he is “not merely seeking a fishing expedition.” Kaltsas v. Solow, 15 Misc.3d 1124(A) (Westchester Cty. S.Ct. 2007). It is true that a party opposing a motion for summary judgment may claim that facts essential to justify opposition exist which are within the exclusive knowledge and possession of the moving party and, thus, that the motion should be delayed until after some discovery. See CPLR §3212(f). However, without an evidentiary showing by the opposing party, “mere speculation or conjecture” is insufficient to support this conclusion. Pank v. Village of Canajoharie, 275 A.D.2d 508, 509 (3d Dep’t 2000).

“A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence.” Bailey v. New York City Transit Authority, 270 AD2d 156, 157 (1st Dept.2000) [emphasis added]; Zuckerman v City of New York, 9 N.Y.2d 557 (N.Y. 1980). (“The opposition papers submitted herein consists solely of the affirmation of an attorney. As such, the defendant has failed to submit evidence in admissible form to raise a triable issue of fact. We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.”

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Ya I was afraid of that unless the discovery was enough to sway judge on triable issues of fact not presented. Another angle was lack of affidavit authenticating billing statements...

(B) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision © of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

CPLR 3212

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Problem you have is (I looked) Delaware has use and acceptance as a law, and Chase specifies DE law. (Bet Midland doesn't know that) Your argument can be that you agreed to......what? How do you agree to the terms of a contract nobody ever sent you? Billing statements containing terms are not contracts, either. Don't let them pull that one on you. Bills are after the fact. Also, NY has a Bill of Particulars. Check that out. Maybe if you make enough trouble for Midland, they'll give up. Again, what state were those case laws for use and acceptance from?

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It looks like he's citing all NY case law on the "account stated" part of it, not Delaware. Here's a few...

An account stated is an agreement between the parties to an account based upon prior transactions between them with respect to the correctness of the account items and balances due... the agreement may be implied by the retention of an account statement for an unreasonable period of time without objection - Citibank (South Dakota) N. A., Plaintiff, v. Levie Jones et al., District Court, Nassau County, NY, First District


Citibank (South Dakota), N.A. v. Runfola, 283 A.D.2d 1016, 1016, 725 N.Y.S.2d 246 (N.Y. App. Div. 2001)

Neuman Distribs. v. Falak Pharmacy Corp., 289 A.D.2d 310, 734 N.Y.S.2d 221

I knew SOL laws from DE apply in NY, not aware on the account stated part (?). But like you said maybe he doesn't too. :)

If Rule CPLR 3212 (New York City Civil Court) is the basis of his motion for summary judgment(assuming?), I'm attacking a flawed motion under NY laws for summary judgment (ie. improper evidence, failure to state a claim).


Also, they have one affidavit in support:

An affidavit submitted by a legal expert employed by Midland who attests to an understanding the accounting of Midland, that they are a rightful assignee of the OC (again no contracts shown, no chain of ownership, the previous owner was a JDB), that the documents were kept in regular course of business, etc,,...

My understanding this person had to actually assemble the billing statements presented to the court "custodian of records," and attest to that.

Edited by RichardJ
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You have to look at NY banking statutes to see if they recognize use and acceptance. DE has it, but it's iffy as to whether or not the OC can export the statute without proving you agreed to DE law. That's tough to do, considering no cardholder agreement ever tells any consumer what DE law is. They could have the death penalty for credit card default for all you know.

Also, take a look at DE interest law, chapter 23, I believe it requires a written agreement in order for them to charge more than a set limit. You can have some fun with that, if they can't produce something in which you agreed to a higher interest rate, they have a problem.

Edited by legaleagle
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