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I've not been sued at this point, but am interested in confirming my thoughts here.

 

BOA credit card opened 2003 ish.

 

Per CC statements:

 

Last payment posted on account 12/04/2009.

 

Last charge to the card done on 01/05/2010.

 

Next payment was due 01/17/2010.

 

Late fee posted 01/19/2010 for missed payment of 01/17/2010.

 

No other payments have been made, and this is confirmed with a credit report pulled 6 months ago.

Credit report showed 30 days late as of Feb 2010.

 

According to 2006 CC agreement, governing law = Delaware, which is 3 years SOL on CC debt.

 

Account has since been purchased by a JDB around June 2012.

 

Am I correct in thinking, and after checking the court website today and finding nothing has been filed to sue me, that I am outside the SOL if using the borrowing SOL of Delaware?

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http://www.debtdefense.com/pdf/finality.pdf'>http://www.debtdefense.com/pdf/finality.pdf Capital One vs Steven Pincus Case number 502007SC016285

Originally Posted by BV80

"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" http://scholar.google.com/scholar_case?case=9123000721126633326&q=Fulton+County+Adm%27r+v.+Sullivan&hl=en&as_sdt=2,41'>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
http://scholar.google.com/scholar_case?case=10059683058545263569&q=McCorriston+v.+LWT+INC&hl=en&as_sdt=2,10'>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." http://scholar.google.com/scholar_case?case=8238023685110453984&q=Gaisser+v.+Portfolio+Recovery+Associates,+LLC&hl=en&as_sdt=2,10'>Gaisser v. Portfolio Recovery Associates, LLC - Google Scholar

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Yipppeeee !!!  Thank you-thank you!

 

I kinda thought so.  Have been holding my breath, so to speak, for the past month.

Was checking the court website every day.

 

1 down, actually 2 down (the other went "safe" a couple months ago on a NH SOL I think it was)

 

2 to go

 

But its the bigger ones that are now "safe"

 

1 pending in court for 3 months now with no action at all.  Unfortunately I went the scardy cat way and got a lawyer on that one since it was with an OC.

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Junk debt buyers buy junk debts and sue you for the money owed+,they hope you dont show for court to challenge them and they win by default.Thats what they do.

Delaware has 3 years SOL on CC debt.

The FDCPA protects consumers against time-barred collection lawsuits because courts have

interpreted the FDCPA’s fairness requirements to prohibit collection lawsuits on stale debt.

Congress passed the Fair Debt Collection Practices Act for the purpose of eliminating "the use of abusive, deceptive, and 1483*1483 unfair debt collection practices by many debt collectors." 15 U.S.C.A. § 1692(a).

I could not find one for BOA

ORDER GRANTING DEFENDANT'S MOTION TO

DISMISS

AVALOS, J.

*1 THIS CAUSE having come before the Court for a hearing and the Court having heard the argument of the parties, reviewed pertinent case law and pleadings, the court hereby finds as follows:

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 Court is not persuaded by LWT's argument that that the analysis of whether its breach of contract claim against Brodsky is barred does not begin and end with Section 8106. The Parties stipulated that Delaware's statute of limitations governs and the court does not have to look past the stipulation and the plain meaning of the statute. However, even if this Court were to address Delaware's tolling statute and borrowing statute, this Court finds that they are not applicable to the case at bar. These statutes are found at Sections 8117 and 8121, respectively, of Chapter 81, Title 10 (hereinafter "Section 8117"). This Court will not address section 8121 in light of LWT's position.FN1

FN1. Plaintiff in paragraph 32 of his Memorandum of Law in Opposition to Defendant's Motion for Summary Disposition states that "section 8121 does not apply to this action."

*2 Section 8117 provides as follows:

If at the time when a cause of action accrues against any person, such person is out of the State, the action may be commenced, within the time limited therefore in this chapter, after such person comes into the State in such manner that by reasonable diligence, such person may be served with process. If, after a cause of action shall have accrued against any person, such person departs from and resides or remains out of the State, the time of such person's absence until such person shall have returned into the State in the manner provided in this section, shall not be taken as any part of the time limited for the commencement of the action.

The Delaware Supreme Court addressing "Section 8117" held that the statute of limitation was not tolled since the defendants were non-residents and in dicta stated that to hold otherwise would "result in the abolition of the defense of statutes of limitation in actions involving non-residents." Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959).

For purposes of this litigation, Brodsky has always been and continues to be a Florida resident.The Plaintiff did not file suit and attempt service until well beyond the statute of limitations. Since the Defendant, for purposes of this action, has never been a resident of Delaware, Section 8117 does not apply and it does not operate to toll the three years statute of limitations.

Plaintiff in paragraph 33 of his Memorandum states in part that the Defendant `at all times during the pendency of this action (and prior to the filing of the same) has been a resident of the State of Florida.

It is therefore ORDERED and ADJUDGED as follows:

1. That there are no genuine issues of material fact.

2. That the Plaintiffs claim is barred by the Statute of Limitations stipulated to by the parties.

3. That "Section 8117" and "Section 8121" of the Delaware Code do not apply, and

4. Defendant's Motion for Summary Disposition is GRANTED.

DONE AND ORDERED.

Fla.Cir.Ct.,2006.

L.W.T. v. Brodsky

Not Reported in So.2d, 2006 WL 3617983 (Fla.Cir.Ct.)

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