Connecticut Borrowing Statute for SOL from Delaware?

[grandgnu]

Card opened in MA and used in MA, presently reside in CT, never used in CT and default date is listed before I lived in CT.  Choice of law provision in member agreement on credit card is Delaware.

 

If suit is brought against me in Connecticut, is there a borrowing statute I can reference to use the 3-year Statute of Limitations from Delaware?  In MA and CT it's 6 years as far as I can tell.  More than 3 years has passed since the original missed payment AND since the account went past 180 days past due and was Charged off.

[shellieh98]

it depends on if ct has a borrowing statute

[grandgnu]

it depends on if ct has a borrowing statute

 

Yes, I am aware it depends on that.  I asked in my OP if there was one, I have been unable to locate it via google and was hoping someone could point me to the correct statute if there is one.

[shellieh98]

http://www.proskauerguide.com/litigation/7/IV

http://www.ebglaw.com/files/45325_Non-compete%20Laws%20Connecticut%20(3-506-2779).pdf

 

 

 

I think they do, but i cant find any thing specific to credit card debt. but it has this. 

 

 

CHOICE OF LAW PROVISIONS

Courts in Connecticut generally uphold choice of law provisions in 

non-competes, unless either the:

Chosen state has no significant relationship to the parties and 

there is no other reasonable basis for the parties’ choice.

 

so since ct does not have a significant relationship, then they should recognize choice of law for Delaware.

[grandgnu]

Thanks for the info.  I'm assuming if I have to defend myself in court they'll be looking for me to cite specific CT statutes to back this up, so if anyone can point me in the correct direction it's greatly appreciated.  The ONLY interest CT would have is that it's my current residence.  But since the choice of law is Delaware and the account as opened, used and is listed as defaulted while I resided in MA, I'm hoping I can utilize the SOL defense on this one.

[shellieh98]

What you need is the cardmember agreement governing the account stating so. I am sure there is ct statute somewhere, but if you are sued in ct and lived in another state when all charges occurred  they will try to use the laws of your former state.  You would need the statute from that state to help back up your case, but even so, if your cardmember agreement says it uses Delaware  then I would go with it.  The card was opened there because that is where the OC is, you made payments to Delaware, and the default occurred in Delaware   

[grandgnu]

I do have a copy of the card member agreement that says to the extent state law applies, Delaware is the choice of law.  And I believe MA does have a borrowing statute, but if I'm sued in CT not sure how I can apply that.

[shellieh98]

I believe you file a motion in lieu of an answer.  Check your state rules of civil procedure, you may have to answer, I don't know, but then you can File a motion to dismiss based on a time barred debt.  include a copy of the cardmember agreement in your defense statement, I am sure there is a motion floating around here on this board on how to write it, I will look. 

[shellieh98]

I can't find a sample motion, others can weigh in Im sure.  but here is some case law n support of your motion. http://caselaw.findlaw.com/ca-superior-court/1289969.html

[grandgnu]

I was under the impression I would list the time barred debt/SOL as an Affirmative Defense, but open to suggestions.  Note that suit has not been brought against me, my wife recently did arbitration with the same OC on her card, but that wasn't out of the SOL at the time they brought suit (she MTC to get it into ARB)

 

But since mine would be SOL based on Delaware law, I didn't want to move this into ARB because then I lose the SOL defense, is my understanding.  So just trying to see if I can borrow the Delaware SOL to cover me in CT, since the account wasn't even opened in CT, was never used or paid from CT, etc.

[Seadragon]

I was under the impression I would list the time barred debt/SOL as an Affirmative Defense, but open to suggestions.  Note that suit has not been brought against me, my wife recently did arbitration with the same OC on her card, but that wasn't out of the SOL at the time they brought suit (she MTC to get it into ARB)

 

But since mine would be SOL based on Delaware law, I didn't want to move this into ARB because then I lose the SOL defense, is my understanding.  So just trying to see if I can borrow the Delaware SOL to cover me in CT, since the account wasn't even opened in CT, was never used or paid from CT, etc.

I believe you would file a motion to dismiss as this affects subject matter jurisdiction for the court. Filing a motion to dismiss extends the time to answer I believe. The only bad thing, however is that you are basically admitting the card is yours. This choice of law would have to be air tight.

 

I am sure there are examples of motions to dismiss based on that. You are directly challenging the jurisdiction of the court using another states SOL. I believe that CT has that borrowing statute if the SOL is less than 6 years. So reiterating that the motion to dismiss would be good for the SOL but you are basically admitting the debt so it has to be air tight.

 

The other defenses may not be well received in CT, also you can say that it is a violation of state collection laws for filing on a time barred debt.

[grandgnu]

So pretty much I'd argue:

 

1.  The account was opened in MA

2.  The account was only used and paid on in MA

3.  The choice of law provision is Delaware

4.  The account was never used or paid while I resided in the state of CT

 

But I feel like I'd need to cite specific CT state statutes in regard to borrowing SOL from another state, and I still haven't been able to locate a borrowing statute.  I'm assuming I should be referencing it specifically in my MTC should it come to that.  Can anyone point me to the correct statute, subsection and wording on this one?

[shellieh98]

Don't forget the payments were made to DE, the default occurred in DE, opened in DE , cardmember states rules of DE govern the account,therefore DE should be the governing state.

[nobk4me]

I was under the impression I would list the time barred debt/SOL as an Affirmative Defense, but open to suggestions.  Note that suit has not been brought against me, my wife recently did arbitration with the same OC on her card, but that wasn't out of the SOL at the time they brought suit (she MTC to get it into ARB)

 

But since mine would be SOL based on Delaware law, I didn't want to move this into ARB because then I lose the SOL defense, is my understanding.  So just trying to see if I can borrow the Delaware SOL to cover me in CT, since the account wasn't even opened in CT, was never used or paid from CT, etc.

 

I don't see losing the SOL defense in arb.  Just stipulate that the governing contract law is Delaware.  When the creditor files their claim for the debt, move to dismiss based on DE's 3-year SOL.

 

Now, if state law is clearly in your favor, then make the argument in court rather than arb.  But if there is ambiguity in your state's law, arb can be used to your advantage here.

[grandgnu]

I don't see losing the SOL defense in arb.  Just stipulate that the governing contract law is Delaware.  When the creditor files their claim for the debt, move to dismiss based on DE's 3-year SOL.

 

Now, if state law is clearly in your favor, then make the argument in court rather than arb.  But if there is ambiguity in your state's law, arb can be used to your advantage here.

 

These articles show that SOL often doesn't apply in private arbitration such as JAMS:

 

http://www.gpmlaw.com/uploadedFiles/Resources/Articles/enforceability_applicability_statute_limitations_arbitration_CMiller(1).pdf

 

http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/8c9f13012b96736985256aa900624829/6bf69830a26b1a01852573630053b020?OpenDocument

 

 

Which is why I'm reluctant to press for arbitration should my case go to court.

[grandgnu]

Damn, looks like legal eagle hasn't used this site since August of 2012, was hoping to get his input since he's from CT

[CT Yankee]

Is this a small claims case? I may be able to offer help if it is.  I'm in CT

[grandgnu]

Is this a small claims case? I may be able to offer help if it is.  I'm in CT

 

Debt is under 10K according to the letter I received.  So far I've send a DV response.  But since my wife was sued by Discover for her debt (she's collection proof) I'm concerned that they may attempt to sue me on this as well (and I'm not collection proof)

 

So trying to see if I can borrow the Delaware SOL and get this dismissed IF they try to sue.

[CT Yankee]

You may have a better chance than most because of your situation. The above mentioned CT choice of laws is specific to employment/labor disputes but does mention that CT is open to Section 188 of the Restatement (Second) of Conflict of Laws.

           http://www.ebglaw.com/files/45325_Non-compete%20Laws%20Connecticut%20%283-506-2779%29.pdf

 

You referenced the same material concerning SOL in arbitration as I've seen and in follwing that, see if your agreement contains something like this:

 

"The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitation and shall honor all claims of privilege and confidentiality recognized at law."

 

If so then arbitration would be the way to go with JAMS. Just my opinion.....

[raul2000]

Grandgnu was there a favorable outcome in your case.  I am pretty much fighting the same fight with Chase with a SOL from Delaware.

[grandgnu]

Grandgnu was there a favorable outcome in your case.  I am pretty much fighting the same fight with Chase with a SOL from Delaware.

 

I haven't been sued, I was just inquiring in case it went down.

[racecar]

Restatement (Second) of Conflict of Laws s 187

 

Restatement (Second) sec. 187