Jump to content

"Most Significant Relationship Test"


Recommended Posts

I am posting this new thread because I need to respond right away to Midland's reply to my MTD. 

 

Basically, Midland is controverting the fact that DE is governing law.

 

Midland's entire reply is centered around the "Most Significant Relationship Test." Midland's counsel listed case law which all depends on PLACE OF PERFORMANCE & DOMICILE. The reply also states that I opened and used the card in Washington. I did not live in WA during any time that this case asserts.

 

The reply states that my domicile was in Utah, and I opened the account in Washington. During the dates Midland claims I opened and maintained the account I lived in Idaho (the entire time). SOL in Idaho for open ended accounts is 4 years. SOL in WA is 3. I didn't move to UT until 2010. I hadn't lived in WA since 2002.

 

 

MOST SIGNIFICANT RELATIONSHIP TEST:

 

(a) The place of contracting              (I lived in Idaho during the dates they claim I opened the account)

( B) The place of negotiation              (I lived in Idaho during the dates they claim I opened the account)

© The place of performance           (I lived in Idaho during the dates they claim I opened the account)

(d) The location of the subject matter of the contract,       (I lived in Idaho during the dates they claim I opened the contract)

(e) The domicile, residence, nationality, place of business of the parties.    (I lived in Idaho during the dates they claim I opened the account.)

 

The address in WA is showing on the account application screenshot. I hadn't lived in that house for 10 years. Midland claims that I opened the account in 2009. I sold the house and moved to Idaho in 2001.

 

So my question is do I just file a reply controverting their claim? Or, do I file a MTS. By the way, they filed this three days late as well. Oh, and initial disclosures rule was instituted 4 months after they filed suit! So they didn't need to provide them to me. Jerks!

 

How would I formulate my reply? Couldn't I just use their same case law to substantiate my claim?

Link to comment
Share on other sites

I'm not an expert on Utah procedural law, so grain of salt and all that, but I'd imagine filing a Reply Brief would be wise. Your Customer Agreement will state that the place of execution is Delaware, that the original creditor is located there and extends credit from there, etc.

 

Chances are your state's permitted interest rates etc. are all less generous than Delaware's: include the fact that the contract has been utilizing Delaware law to permit a higher interest rate than Idaho would allow, which demonstrates that Delaware has had the most significant relationship to date. Basically, Delaware has its paws all over this case, so it's a bit much to argue it doesn't meet the Most Significant Relationship test.

 

Basically, your Customer Agreement, combined with the creditor's presence in Delaware, should be enough: don't forget that the original (Delaware-based) creditor is (was) just as much a party to the contract as you are! And that, to date, payments were sent to Delaware, Delaware law has applied, etc.

 

I'm not sure it's wise to hammer the fact that you lived in Idaho rather than Washington: while I'd still include it to further demonstrate their ignorance, your goal is to make Delaware law apply, not Idaho law. And of course include the fact that they're late.

Link to comment
Share on other sites

Did they cite any case law to support their opposition?  If so, what cases did they cite?

 

BTW, Idaho has a borrowing statute, as well.

 

§ 5-239

 

5-239. Actions barred in another state. When a cause of action has arisen in another state or territory, or in a foreign country, and by the laws thereof an action thereon can not there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state and who has held the cause of action from the time it accrued.

Link to comment
Share on other sites

I'll post the cases tomorrow.

 

After reading through UT cases I think I'm ok on the DE being governing law.

 

Midland is also arguing that my last PAYMENT date was within SOL, however DE law states that the clock starts clicking at the last charged transaction. The only transaction on their years worth of statements are payments, except for one which is a balance transfer in August 22 2008. I noticed that the statement with that transfer was not included with their complaint. Anyhow, they filed suit exactly 3 years and 7 days ago. So 7 days after the Delaware SOL ran out.

 

So it looks like I must argue last payment v. last charge. Another member on this forum won his/her case in UT citing the very same thing. I think his/her case is unpublished.

Link to comment
Share on other sites

I've read that.  I don't believe the judge in that poster's case read the cases she cited.  They weren't really applicable.  Also, her argument about when a cause of action accrues doesn't really make sense.  But it doesn't matter because she defeated the JDB.  However, there is DE case law that states that an clear acknowledgment of a debt starts the SOL.  A payment is an acknowledgment. 

 

I just thought that possibly DE has a specific statute that says the SOL for a cc account starts with the last charge. 

  • Like 1
Link to comment
Share on other sites

You may want to get your hands on the briefs filed in Pincus v. Law Offices of Erskine & Fleisher. This is the Florida case that established Capital One's credit card agreements are subject to the Virginia's 3 year statute of limitations. 

 

Even though the argument centers on Florida law, the rationale extends beyond the borders of that state. I'm attaching a copy of the Plaintiff's response in opposition to motion to dismiss; I hope you find it helpful.

  • Like 1
Link to comment
Share on other sites

Here is one way I would do this. First start out by mentioning that plaintiff reply was late filed. You will to attack this from many angles. Call their BS evidence what it is, fabricated or evidence that ID Theft has taken place, but proof positive this is not your debt and the court must dismiss  Submit an affidavit of what you said before about not living where they say you did live, if you have documentation of the sale of the house attach it as well.

 

By their own arguments and dates, Utah has the least significant relationship since no performance of the contract occurred in Utah.The most significant relationship based on the all over the map evidence they submitted would be where the OC is headquartered and the state the parties agreed to be bound by law.

Link to comment
Share on other sites

I've read that.  I don't believe the judge in that poster's case read the cases she cited.  They weren't really applicable.  Also, her argument about when a cause of action accrues doesn't really make sense.  But it doesn't matter because she defeated the JDB.  However, there is DE case law that states that an clear acknowledgment of a debt starts the SOL.  A payment is an acknowledgment. 

 

I just thought that possibly DE has a specific statute that says the SOL for a cc account starts with the last charge. 

 

Here is the Delaware Statute:

 

§ 8106. Actions subject to 3-year limitation.

No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, 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, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant 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.

 

I interpret this (as I have seen others do as well) as the last account activity. This could be a charge or a payment to the card.

Link to comment
Share on other sites

What may also apply is the language in the cardholder agreement. You are not in default until you miss a scheduled payment. That is not the date of the last payment, it is 30 days later. Courts usually enforce contracts absent any reason to do otherwise. The significant relationship test is almost exclusively applied in insurance claims and car accident cases, where applying the laws of one state rather than the other would be prejudicial to one party. Check their case law (if they gave you any) and see what kinds of cases they cite. I bet you not one of them is a credit card case. If they did not include case law, that's the tip off, they know there isn't any that supports this argument.

Link to comment
Share on other sites

YOU GUYS ARE THE BEST! I'm not so freaked out with ALL of your help. Here is what I included in my MTD regarding when DE statute of Limitations begins.

 

 

Accordingly, the cause of action does not start to accrue from the time of default as any amount owed is owed at the time of each transaction.

 

The only transaction charge listed in the Plaintiff supplied credit statement(s) shows a balance transfer for $850.00, which is dated 8/22/2008 (See Exhibit- C) The last payment shown on the credit account was 4/7/2009. This debt is time-barred as matter of law.

 

A payment in and of itself is not a transaction and no cause of action would accrue from a payment to this account. “Delaware has not adopted the proposition that a payment postpones commencement of or tolls the running of the statute of limitations.” Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 - Del: Superior Court 1981.

Link to comment
Share on other sites

Ok,

 

Made a mistake- I stated that I was and always have been a resident of Utah. I don't know why I put that, seriously! I was thinking of that I was a resident of Utah during this entire lawsuit.

 

2nd Mistake: I miscalculated the SOL for the last payment date. My last payment was made on April 7th of 2009. I was trying to calculate from 2009-2013! I know that SOL runs until the date suit is filed.

 

So my only hope on the DE argument is that the SOL tolling begins at date of last charge, which none even shows, however somewhere I saw a balance transfer in 8/22/2008, which is just 3 years and 7 days that the case was filed.

 

Questions:

 

Should I or could I amend my MTD to include the correct info- that I lived in IDAHO During account opening.

and

Can I file a Motion for untimely reply and my reply in the same motion?

 

Thanks, I am looking up all the case law I can by the way.

Link to comment
Share on other sites

Here is what I found also, and KENTWA, I think you brought this up a while ago:

 

 

Utah Consumer Credit Code
Remedies and Penalties
Section 205
Statute of limitations.

            

70C-7-205.   Statute of limitations.

 

            No action under this title may be brought more than one year after the date of the occurrence of the violation. This section does not bar a person from asserting a violation of this title in an action to collect the debt which is brought more than one year after the date of the occurrence of the violation as a matter of defense by recoupment or setoff to the extent of the outstanding balance of the debt.


Enacted by Chapter 159, 1985 General Session

 

 

 

 

http://www.courts.state.ny.us/Reporter/3dseries/2011/2011_50366.htm

 

I just found this link in Stardustertoo's thread. It is quite interesting. It is the argument between UT & NY governing law.

 

The judge explained that the SOL in UT is actually 1 year (which isn't firmly cemented, but I need to look for cases.)

 

It also explains that American Express provide charge card statements, however they show no purchases or transactions (no payments are mentioned). 

 

If anyone has time to read it, it's pretty good.

Link to comment
Share on other sites

Yeah, the 1 year hasn't seemed to fly in UT courts yet. Should I seek leave to amend my MTD for the issues I posted above? Or supplement? In a reply I can controvert their new claim, however I have wrong info in my MTD (always lived in UT...when I actually lived in ID during the date of supposed ownership of the account.)

 

Did I shoot myself in the foot? Don't know what I was thinking. Kept thinking of the life span of the lawsuit, not where I lived for 9 years!

Link to comment
Share on other sites

The SOL in Title 70C is for violations of 70C and has nothing to do with the SOL on credit cards. The NY judge was not reading sautes  but made a very bad leap of faith that what a Pro Se was telling him was right and plaintiff did not attempt to argue otherwise, rather plaintiff tried to only argue about what states law applied. That should be lesson one, always argue your points from many different possible angles and always address everything opposing has to say.

 

I am thinking that due to possible confusion from timelines in your motion, that you should withdraw and resubmit. Make it clean as possible. You know where they are likely to go to argue this now and can address those up front. Your reply to their reply should never raise new issues, but rather only refute any arguments they may raise in their reply.

Link to comment
Share on other sites

Does the cardmember agreement specify that payment will be sent to DE?   If the cardmember agreement doesn't specify where payment is to be made, here's some UT case law:

 

 

In Financial Bancorp, Inc. v. Pingree & Dahle, Inc., the court stated:

 

Utah follows the majority position that limitation periods are generally procedural in nature. Lee v. Gaufin, 867 P.2d 572, 575 (Utah 1993). Therefore, as a general rule, Utah's statutes of limitations apply to actions brought in Utah.

An exception to this rule that the law of the forum governs limitation periods is set forth in Utah Code Ann. § 78-12-45 (1992). That section provides in relevant part that "[w]hen a cause of action has arisen in another state or territory, ... and by the laws thereof an action ... cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state." Id.

 

Because the contract is silent regarding the place of payment, we presume payment was to be made where the payee resides or at its place of business. Olsen v. Tholen, 111 Utah 241, 177 P.2d 75, 77 (Utah 1947) (where contract fixes no place for payment, tender thereof at vendor's residence is sufficient); see also Schecter v. Fishman, 525 So.2d 502, 503 (Fla. Dist.Ct.App.1988) (holding that where contract does not expressly provide place of payment, payment is to be made where payee resides). Hence, we conclude that the cause of action arose in California and thus, by reason of section 78-12-45, the action is barred in Utah if it would be barred if brought in California. Financial Bancorp, Inc. v. Pingree & Dahle, Inc., 880 P.2d 14, 16 - 17 (Utah App. 1994).

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.