SOL borrowing statute

[Osprey13]

I am new to post here, but have been reading and learning things over the past couple of weeks. Wonderful information!

I've not received a summons yet, so didn't start off with the 20 something question answer. Just looking ahead as a matter of "in case".

I have read on here that my home state of Florida does borrow the SOL on cc debts from other states (specifically Delaware and Virginia in my question today).

Someone told me that not all courts in Florida will permit this borrowing statute, and it's hard to prove something is outside the SOL of a different state. That doesn't make any sense to me, so thought I would post this to hear back from others on this forum.

Could it be true that not all courts within Florida permit/allow (not sure how to word it) the borrowing statute?

[BV80]

I am new to post here, but have been reading and learning things over the past couple of weeks. Wonderful information!

I've not received a summons yet, so didn't start off with the 20 something question answer. Just looking ahead as a matter of "in case".

I have read on here that my home state of Florida does borrow the SOL on cc debts from other states (specifically Delaware and Virginia in my question today).

Someone told me that not all courts in Florida will permit this borrowing statute, and it's hard to prove something is outside the SOL of a different state. That doesn't make any sense to me, so thought I would post this to hear back from others on this forum.

Could it be true that not all courts within Florida permit/allow (not sure how to word it) the borrowing statute?

It would depend upon the courts that have allowed the use of another state's SOL. Lower courts are bound by the decisions of higher courts.

In my state, we have county courts. The decision of one county court is not binding on another county court. We have one appeals court above all the county courts. The decisions made by that appeals court is binding on all the county courts. Then we have the SC Supreme Court.

The following case was an FDCPA in a FL federal court. I don't believe the decisions of federal courts are binding on the state courts. However, they could be very persuasive to a judge.

Gaisser filed an FDCPA claim against a JDB. Gaisser claimed that the JDB (Portfolio Recovery) violated the FDCPA for filing suit outside the New Hampshire SOL. The original creditor's company was located in NH.

The federal court ruled that the NH SOL applied to the account. That's the statement you'd want to use.

Gaisser v. Portfolio Recovery Associates - Google Scholar

"Because the three-year New Hampshire statute of limitations applied to the debt, and the period was not tolled under the statute, Defendants have not shown the state suit was timely filed. Accordingly, the Motions to Dismiss on this ground are without merit."

[DonqIII]

I am new to post here, but have been reading and learning things over the past couple of weeks. Wonderful information!

I've not received a summons yet, so didn't start off with the 20 something question answer. Just looking ahead as a matter of "in case".

I have read on here that my home state of Florida does borrow the SOL on cc debts from other states (specifically Delaware and Virginia in my question today).

Someone told me that not all courts in Florida will permit this borrowing statute, and it's hard to prove something is outside the SOL of a different state. That doesn't make any sense to me, so thought I would post this to hear back from others on this forum.

Could it be true that not all courts within Florida permit/allow (not sure how to word it) the borrowing statute?

I am not from FL therefore I really cannot give you a definitive yes or no.

But I would say that it would a reasonable addumption that it would come down to whether or not you provide proper paperwork and documentation on FL case law in support of it.

You cannot just expect to walk into a court and say to the judge, this is SOL cause they ( the OC/JDB) claims DE in their agreement.

You need to proceed as professional and give the court your argument as to why DE would be the proper choice.

There is a lot of case law for FL on this subject.

If it were me I would start researching case law, and then research

how you get that into court should you receive a summons.

As to how you would prove something is outside the SOL of any state should start with your own record keeping, if you have any.

Start yourself a file.

Look back at the billing statements you may still have and also your bank records.

Not that it would be admissible in a court of law, but if you check your credit reports, especially Equifax, they should show date of first delinquency and also date of last payment.

The date of first delinquency would be the month following the date of last payment that they decided their is a problem with this account and the handling of it so they report it negatively to the CRAs.

It may not coincide with what is posted as date of last payment IF there was any amount paid on the account after what they determine is the first delinquency date.

One of these two will set the clock for the SOL to start.

Usually it will be the delinquency date, however, if your state says so, they may say that any payment, including a $10 one will restart the SOL count.

So you need to check the CRAs and also your records for that and then you can be reasonably sure you are safe to count from there.

[BrunoTheJDBkiller]

L.W.T. v. Brodsky, 2006 WL 3617983 (Fla. Cir. Ct. 2006)

BACKGROUND AND FINDINGS OF FACT

This is an action for breach of contract relative to a Chase Manhattan Bank ("Chase") Visa credit card account to which LWT alleges it is the current owner of by purchase and assignment. LWT filed this action on April 25, 2006. The Defendant, a resident of Florida, was served with the complaint on or about April 29th, 2006. The principal amount in controversy is $2,313.15, as alleged in LWT's Complaint. In response to LWT's complaint, Brodsky served on LWT a Motion for Summary Disposition. In her Motion for Summary Disposition, Brodsky has invoked the choice-of-law provision under the Chase Agreement. Specifically, paragraph 23 of the Chase Agreement provides: " this Agreement is governed by the laws of the United States and the state of Delaware. Any dispute concerning any item in this Agreement will be resolved by those laws." Based on this provision, Brodsky argues in her Motion for Summary Disposition that Delaware's three year (3) statute of limitations set forth in Del.Code Ann. Tit. 10, § 8106 (2006), governs LWT's action. Brodsky further argues that because LWT alleges in its Complaint that Chase closed Brodsky's account for non-payment on October 19, 2001, no later payment has been alleged, and because LWT filed this action April 25, 2006, LWT's action is barred pursuant to Section 8106. LWT and Brodsky have stipulated that Delaware's statute of limitations governs.

FINDINGS OF LAW

It is well settled in Florida that Florida courts will enforce a choice-of-law provision in a contract, and said provision is presumed to be valid unless the foreign law contravenes public policy of the forum jurisdiction. See Mazzoni Farms v. E.I. Dupon De Nemours & Co., 761 So.2d 306 (Fla.2000); see also Fla. Stat . § 671.105(1) (2006). In this case Brodsky has properly invoked the choice-of-law provision of the Chase Agreement, which is subject to enforcement by this Court. Furthermore, Del.Code Ann. Tit. 10, § 8106 (2006) (hereinafter "Section 8106"), provides for a three-year statute of limitations on a breach of contract cause of action and the parties have stipulated to such in this case.

This is supposed to be good, but it is unpublished

993 So.2d 526 (2008)

L.W.T., INC.

v.

McCORRISTON.

No. 2D08-2392.

District Court of Appeal of Florida, Second District.

September 24, 2008.

Decision without published opinion. Cert.denied.

Also this CA case supposedly references a good FLA Case. Almost fell asleep waiting for the page to load.

RESURGENCE FINANCIAL LLC v. CHAMBERS, No.

[Osprey13]

Thank you very much for the replies.

Well, if/when the JDB does sue, I've already started my learning here, that's for sure!

I know this would be in county court based on amount they would claim is owing. I've already pulled my CRs, but don't have them on hand to refer to. However, I do remember my last payment on the supposed account was Aug 2009 with the 1st delinquency showing as Sept 2009. Nothing else has ever been paid on this to anyone.

It's good to know that if needed I MIGHT be able to use the fact this is outside 3 year SOL. I've read the other posts about fighting JDB claims and know I can also use proof they own the supposed account. It's been passed around several times already; 3 different banks (mergers) and now the 2nd JDB.

Not that I would want to be sued, but I'm sure this one would be interesting, at best!

Oh, forgot to mention, the sad thing is I've already flunked my first test (as in learning/being in school). I didn't reply to the letter they sent that gave me 30 days to deny the account as valid.

Edited November 8, 2012 by Osprey13
Forgot to mention:

[Osprey13]

After thinking about this more, it appears I really should have sent the DV letter.

Not doing so, (and it being well past the 30 days from receiving the JDB letter), have I hurt my situation should they file lawsuit against me?

[saytar]

Ahh go ahead and send it. They don't have to answer it, they just can't continue collection efforts till they do.

That leaves them 2 choice's.................drop it and resell it a zombie debt collector or sue.

You didn't say which collector so not sure what they will do.

[kutuzov]

This case laws is all you need:

"Florida courts consider the statute of limitations to be substantive, and

therefore the statute of limitations of the parties’ chosen forum will apply where there exists a contractual choice of laws provision." "Fulton County Adm'r v. Sullivan, 753 So. 2d 549 - Fla: Supreme Court 1999" Fulton County Adm'r v. Sullivan - Google Scholar

"Absent an argument by Defendants that Delaware law contravenes strong public policy of Florida, Delaware law applies to substantive matters, including the statute of limitations." McCorriston v. LWT INC., 536 F. Supp. 2d 1268 - Dist. Court, MD Florida 2008

McCorriston v. LWT INC - Google Scholar

"It is undisputed that in Delaware, a three year statute of limitations for collection suits applies:

No action . . . based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations . . . shall be brought after the expiration of 3 years from the accruing of the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 and 8127 of this title. Del. Code Ann. tit. 10, § 8106." McCorriston v. LWT INC., 536 F. Supp. 2d 1268 - Dist. Court, MD Florida 2008

In an FDCPA case involving a debt buyer, Gaisser v. Portfolio Recovery Associates, LLC, Dist. Court, SD Florida 2008, one of the assertions made by the Plaintiff against Portfolio Recovery Associates (PRA) and their counsel, Robert J. Orovitz, P.A. was the filing of a lawsuit outside the statute of limitations. PRA had filed suit against Gaisser in the Broward Courty Court for a Providian National Bank credit card debt that the debt buyer claimed to own. The cardmember agreement for the account stated that the account was governed by the laws of New Hampshire. The statute of limitations in New Hampshire for this type of debt is three years.

The United States District Court of the Southern District of Florida stated that "Contrary to Orovitz's suggestion, Florida courts consider the statute of limitations to be substantive, and therefore the statute of limitations of the parties' chosen forum will apply where there exists a contractual choice of laws provision."

The court further stated:

"Because the three-year New Hampshire statute of limitations applied to the debt, and the period was not tolled under the statute, Defendants have not shown the state suit was timely filed." Gaisser v. Portfolio Recovery Associates, LLC - Google Scholar

[Savoir]

After thinking about this more, it appears I really should have sent the DV letter.

Not doing so, (and it being well past the 30 days from receiving the JDB letter), have I hurt my situation should they file lawsuit against me?

..... most of the experienced posters on this board seem to regard DV only as a method to buy time as the threshold of proof they have to provide is very low (not much information is required to validate).

The only reasons I request DV is to put the plaintiff on alert that 1.) if there is an arbitration clause in the card member agreement; I elect arbitration and 2.) to give myself time.

[kutuzov]

And also to put them in notice that I'm gonna defend myself, that on it's own might scare them, do the simple DV not the all under the sun DV.

[texasrocker]

...and also to push them into possible FDCPA violations for a counter suit.

[Osprey13]

Ahh go ahead and send it. They don't have to answer it, they just can't continue collection efforts till they do.

That leaves them 2 choice's.................drop it and resell it a zombie debt collector or sue.

You didn't say which collector so not sure what they will do.

This particluar one is Mid-land.

I do have another potential with AA. Am about 2 months shy of SOL if borrowing statute is considered. Last payment on that one (the AA one) was Dec 2009

I have been reading the thread regarding Midland (great information) and will be getting the book another poster has regarding AA. I suppose I am in information gathering mode right now as a "just in case" precaution.

[Osprey13]

Ahh go ahead and send it. They don't have to answer it, they just can't continue collection efforts till they do.

That leaves them 2 choice's.................drop it and resell it a zombie debt collector or sue.

You didn't say which collector so not sure what they will do.

...and also to push them into possible FDCPA violations for a counter suit.

If they have FDCPA violations, they are going to have them without me sending a letter anyway, right?

They only can reach me via mail (no phone). Not sure what the letter would do to provoke other violations. (one of my many downfalls is that I'm an over-thinker; hence I am trying to understand the many different viewpoints on this forum. The more I understand, the more I can effectively duplicate and control my situation).

I've noticed that some posters claim they have sent the letter, and in return have received a summons (sued). What came first? They were going to be sued anyway, or did the letter provoke things?

[Osprey13]

..... most of the experienced posters on this board seem to regard DV only as a method to buy time as the threshold of proof they have to provide is very low (not much information is required to validate).

The only reasons I request DV is to put the plaintiff on alert that 1.) if there is an arbitration clause in the card member agreement; I elect arbitration and 2.) to give myself time.

I can see the point of doing the DV letter. I suppose my fear is that it stirs the pot. But, that's jus my own personal thought on it (and maybe my own inability to confont).

Luckily, I've found this board and am using this time to learn and dig thru my papers at home to find anything I can regarding my past history. Sure would be awesome to have everything ready and not need it !

[BrunoTheJDBkiller]

If your records are accurate and show a last payment of 9-2009, that means the account went into default in 10-2009. If they sue you, file for a dismissal and countersue them for an FDCPA violation. The case you want to cite is the US Federal Trade Commission v. Asset Acceptance. The Complaint is on line, you could use it as a template. Suing on a time barred debt violates the FDCPA. They have a bunch of law students and paralegals cranking out this garbage by the metric ton, they probably think FLA's SOL applies.

[Osprey13]

If your records are accurate and show a last payment of 9-2009, that means the account went into default in 10-2009. If they sue you, file for a dismissal and countersue them for an FDCPA violation. The case you want to cite is the US Federal Trade Commission v. Asset Acceptance. The Complaint is on line, you could use it as a template. Suing on a time barred debt violates the FDCPA. They have a bunch of law students and paralegals cranking out this garbage by the metric ton, they probably think FLA's SOL applies.

Well, I'm 99.99% sure of my records. I have some old letters from OC saying account is ## days past due, etc. Amazing how much paperwork a person (me) can collect.

Good information everyone, thanks!

I'll put this one on the back burner. One less to worry about, with the added pleasure of possibly countersuing.