Need Help fighting SOL from different state.

[raul2000]

Need help with SOL.  I have a JDB trying to collect on a credit card that went bad on March of 2008.  I originally obtained the card in California where the SOL is 4 years, now the JDB is trying to collect in AZ where the SOL is now 6 years.  It used to be 3 years but due to changes in legislature here it's now within SOL again which is 6 years. When the card went bad I was living in Florida where the SOL is 5 years.  I know it's a mess.

 

Can I claim SOL on the card because the original contract was signed in CA.  Can I also claim that the State of AZ has no jurisdiction over the matter because this contract was not executed in this state.

 

According to state law,

 

Stipulates that an action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following:

Ø        A contract in writing that is executed in this state.

Ø        A credit card as defined in the Criminal Code statute

 

Also the JDB is based out of CA.

 

I was served with a Summons, I responded with an answer denying the debt and now received the disclosure from the JDB. 

 

In the disclosure they have an electronic bill from the last payment, and one from when it was charged off.  There is no copy of the contract agreement with my signature and only the generic terms of use on most credit card bills.

 

They have a Bill of Sale from three different JDBs.

 

Bill of Sales.

1. Chase to Vion Holding LLC 6/2009

2. CCR Trust to Allgate Financial LLC/Jackson Capital 3/2013

3. Jackson Capital to Cortez Investments 3/2013

 

The balance on the old debt is $5890 but in one letter are claiming $11,500

[raul2000]

Can ARS 12-506 be used to dismiss a case. I seem to have the same issue.

 

Had credit card that was signed in California 2004, moved to Arizona 2007, and then moved to Florida where the account went default March 2008. Since then moved again to Texas 2009 and now living back in Arizona 2011to present. My argument is that Arizona has no jurisdiction in the case because the contract was not signed in Arizona but in California and the account went default in Florida. In both instances the Statute of Limitations has expired.

 

Being also that they have no written contract with signature in their possession then the unwritten contract rule would apply where the statute of limitations has expired also. 

 

 

ARS 12-506

Action barred by foreign statute of limitation, bankruptcy or insolvency

A. No action shall be maintained against a person removing to this state from another state or foreign country to recover upon an action which was barred by the law of limitations of the state or country from which he migrated.

B. No action shall be brought to recover money from an immigrant who was released from its payment by the bankruptcy or insolvency laws of the state or country from which he migrated.

[nascar]

Statute of limitations has not expired as to any of the states you cited. The statute of limitations in any of the states you've listed did not expire while you were a resident there. None of them will apply to you. Instead, the SOL is tolled in each of the states you mentioned.

 

Get a copy of your original Chase cardholder agreement. It probably has a choice of law provision, using a state that probably has a favorable statute of limitations. 

[racecar]

http://www.creditinfocenter.com/community/topic/315171-this-victory-is-golden-law-of-delaware-and-sol/ the law of delaware

[raul2000]

Ok I guess it's time to roll my sleeves and start the fight. I was reading about how Stomp is fighting by using the SOL from Delaware, was planing on using Stomps argument to dismiss the case.

I received the disclosure package from the their lawyer and in it was a card user agreement. The agreement states.

The terms and enforcement of this agreement and your account shall be governed and interpreted in accordance with federal law and to the extent state law applies. The law of Delaware, where we ans your account are located, will apply no matter where you live or use your account.

[raul2000]

Thank you racecar I will be using the forum you posted as a start to my defense.

[racecar]

http://webcache.googleusercontent.com/search?q=cache:nM1FDrS6v6IJ:www.nclc.org/images/pdf/unreported/Ruffcorn.pdf+&cd=2&hl=en&ct=clnk&gl=us

[raul2000]

I was going through the disclosure package they sent me and came across a cardmember agreement they claim is from when I got the credit card and marked it as exhibit 4.  As I was reading it I noticed that the bottom of the page has a time stamp of 2010 and the last page has a copyright date of 2007.  In the event that I do go to trial, should I be looking at challenging this cardmember agreement as inadmissible because this was not the cardmember agreement I signed for in 2005. I was thinking if I get this thrown out then they no longer have a a written agreement and would have to fall back to the oral agreement statute in Arizona, which would make my case past the SOL.  Or am I just fishing and they will just argue that it's the same contract.

 

Will be filing a MTD on Monday based on the same argument STOMP is presenting in Phoenix, we seem to have the same case pretty much.

[raul2000]

All right guys here I am again asking for very strong advise. I was following Stomp as my case has a very similar situation as Stomp's case. I filed an answer before finding this forum otherwise I would have submitted something better. Once my answer was submitted They immediately served me with a disclosure package and a MSJ.  After going through the disclosure package, I found a credit card agreement with a Delaware choice of law statement. I filed a MTD following Stomp's case and today I received their opposition. I have finally gotten a scanner and have scanned and redacted everything that has been submitted. Seems like I have hit a hornet's nest and its coming at me hard. Any advise would be strongly appreciated. They want a total of $13,000 I do not have and am willing to fight them until there is no fight left in me. Then get up, dust off and do it again. 

 

Here is the base of what I have so far. 

 

1.Who is the named plaintiff in the suit? my wife and john doe husband (me)

1. 
   2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)Hameroff Law Group PC on behalf of Cortez Investment CO LLC
   
   3. How much are you being sued for? 5890.43  from the balance and 5732.78 on interests.
   
   4. Who is the original creditor? (if not the Plaintiff) Chase Bank Of Delaware
   
   5. How do you know you are being sued? (You were served, right?) Yes they served me on July 27
   
   6. How were you served? (Mail, In person, Notice on door) In person.
   
   7. Was the service legal as required by your state? Yes
   
   8. What was your correspondence (if any) with the people suing you before you think you were being sued? They sent letters from Hameroff Law Group
   
   9. What state and county do you live in?AZ, Pima County
   
   10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) They have the last payment posted March 2008
   
   11. What is the SOL on the debt? To find out: Arizona has a 6 year, Delaware has a 3 Year SOL
   
   12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). It show filed on July 16^th with nothing else.
   
   13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No
   
   14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No
   
   15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I received the summons on the 27^rd but I think are trying to make it look like the 16^th ; They are claiming : number 2 is below

I have already submitted an answer, a MTD and replied to their disclosure, denied and objected to every question, and requested admissions from them. They have since responded to my MTD.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They did not send anything on the Summons, but I have gotten a disclosure package from them since.

[raul2000]

This is the Summons that I was served with.

 

[raul2000]

Here is the answer I submitted before I found this very helpful Forum.

[raul2000]

Immediately after filing an answer they hit me with a disclosure package and a MSJ.

[raul2000]

Here is the Disclosure they provided to me. I did not include the evidence they submitted because it's attached to the MSJ

[raul2000]

Following what Stomp submitted I submitted the same argument in my MTD

[raul2000]

Request of Inter s.pdfI also submitted an answer to their discovery and disclosure where I denied everything and objected to everything else. With it requested my own set of interrogatories and admissions as I found throughout this forum. 

[raul2000]

Plaintiff oposition S.pdfAnd Just today did I receive their Opposition to my MTD.  They cited several thing that I have not seen on several of the forums I was following. 

[raul2000]

I know it's a lot to ask by hitting this forum with all these forms at once.  But any help I can get would be appreciated. I think I have done enough to get myself in trouble but such is life. Initially I called a lawyer for some advice and he wanted me to pay him $1000 initially plus all expenses to settle. I called Hameroff and asked them what they wanted, while I admitted to nothing and just wanted them to go away, and they told me that they would not settle for nothing more than a lump sum payment of $13,000 plus lawyer expenses. At the end no matter what I did they were going to try and hit me with a summary Judgement. So I told them that I would see them in court of file bankruptcy before I paid them a dime. So here I am....

 

Thanks in advance.

[raul2000]

Just looked at BMC100 posts and even though I'm in arizona, he has great advice.

[BV80]

@raul2000

 

 

Bill of Sales.

1. Chase to Vion Holding LLC 6/2009

2. CCR Trust to Allgate Financial LLC/Jackson Capital 3/2013

3. Jackson Capital to Cortez Investments 3/2013

 

 

Who is Vion Holding?  CCR Trust?  Are those 2 separate companies?   Is there a bill of sale from Vion to CCR?  It would easier if we could see the bills of sale.

[hot in az]

Wow Just to say I have no expertise in this area. I would try to look up rules of procedure for the state they sued you in, AZ rules of civil procedure. Sorry can't be of more help.

[raul2000]

On their opposition they claimed that Procedural Law of the Forum State governs statute of limitations.  My argument is based on the fact that the Contract Agreement, they provided me in their disclosure package, state that "The Law of Delaware, where we and your account are located, will apply no matter where you live or use the account. They are claiming that even if the contract has a choice of law that it's only substantiative law and that Arizona procedural law on Statute of Limitations is favored over foreign SOL even if the agreement is governed by substantiative law. 

 

I think I have a pretty good defense on the delaware law as it not being tolled indefinitely. I'm just being trumped on how to counter their choice of law, as they are ignoring the card agreement stated choice of law.

[BV80]

@raul2000

 

It's not that they're ignoring the cardmember agreement.  It's all about what AZ law allows.  I'm not an attorney, so here's a very basic explanation as I understand it.  Procedural means court procedure.  Substantive law has to do with the laws and rights.

 

Some courts have ruled that the SOL is procedural because it has to do with when one can or cannot file a lawsuit.  Filing a lawsuit is court procedure.  I don't understand that because the SOL is a law, but that's how those courts have ruled.  Anyway,  if something is based upon procedure, then the laws where the court is located apply to a case.

 

If that's how AZ courts have ruled, anything else will be a hard sell.

[raul2000]

Bills of Sale.pdf

 

Items introduced.pdf

 

Yes sir, I will post them along with the documents they introduced as their evidence.

[BV80]

@raul2000

 

 

I saw the bills of sale. 

 

Here's some things I noticed, and you need to get answers.

 

1.  They filed their disclosure statement on August 19.  They filed the MSJ on August 20.   Can they file a MSJ so soon after filing the disclosure statements?

 

2.  You filed your MTD after filing your answer.  Usually, a motion to dismiss is filed before an answer.  As a result, your MTD might be considered a MSJ.  That's something else you need to find out.

 

3.  You did not raise the issue of standing in your answer.  You referenced it in your MTD, but you didn't argue the defense.  As a result, you may have waived the right to use it.  However, there may be more to this.  We can address that after you get some answers.

 

4.  I think you need to respond to their MSJ.  You raised the issue of privity in your answer.  They addressed it in their MSJ.   Privity and standing are similar, but they're not the same.   In the case of a JDB, both defenses would be based upon proof of ownership, but that's where the similarity ends.

 

Standing means that a party has a right to sue because they've been injured in some way.  In this case, it would be an economic injury.  For Cortez Investments (CI) to show standing to sue, they have to prove they own the account and have been injured by your failure to pay.  No proof of ownership, no injury.  Therefore, no standing to sue.

 

Privity is similar, but it's still different.  It means that an agreement exists and both parties are bound by that agreement.  Lack of privity means no agreement exists between the parties.  Here's an example I found that easily explains it.

 

Curly owns an apartment complex and sells it to Larry.   Larry is now the new owner.   After Larry purchases the complex, Moe signs a lease and moves in.   Moe's apartment needs some repairs.   According to the lease, Larry has to make the repairs.  However, he refuses to do so.  Moe then sues Curly. 

 

All Curly has to do is raise the defense of Lack of Privity.  Moe has a valid agreement and complaint.   BUT his agreement and complaint is not with Curly because Moe signed the agreement with Larry. 

 

In a credit card case, the OC and the consumer have an agreement.  The agreement can be assigned, and the new owner now has an agreement with the consumer.   You would argue that CI has not proven they have an agreement with you.   How have they not proven it?   They haven't proven that an account allegedly owed by you was assigned to them.   Therefore, they haven't proven they haven't proven that an agreement exists between CI and you.

 

Lack of standing means that the plaintiff hasn't proven an injury.  Again, with no proof of ownership of the account, there's no proof the plaintiff was injured.

 

Lack of privity means that the plaintiff hasn't proven that an agreement exists between the parties.  With no proof of ownership of the account, there's no proof that an agreement exists between the plaintiff and the defendant.

 

I would argue both privity AND standing even though you may have waived the issue of standing.

 

5.  Has only one affidavit been provided?  If so, they're affidavit is insufficient to support a motion for summary.  Also, it's insufficient to authenticate their evidence.

[raul2000]

I was also looking at the Restatement of Conflict of Laws 187

 

 

187. LAW OF THE STATE CHOSEN BY THE PARTIES

TEXT

(1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue. (I was thinking of using this to counter their allegation implying that the AZ Statute applies instead of Delaware. It states that the law of the state chosen by the parties. In my case the contract agreement says the the Choice of law is Delaware.)

 

(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either

(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or

( application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of s 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.

(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law. http://www.kentlaw.edu/perritt/conflicts/rest187.html