Is anyone here familiar with NJ SOL cases?

[Skittlethat]

I've been reading through the forums like crazy but the language is quite a bit above my head and I just read something that disputes other information here.

 

I was planning out my SOL defense as my civil part case is from a Bank of America account that had a Delaware agreement.  By Delaware law this debt would be out of SOL, but I saw a reply on here that said my court would probably insist on NJ law even though the Bank of America agreements have Delaware law governing.  I am now lost again but there are no NJ specific SOL cases listed here with my exact situation.

[shellieh98]

I posted one on your other thread. NJ does not have a borrowing statute, so it is going to be hard to find any to the contrary, much less one specific to a debt defense .

[debtzapper]

http://scholar.google.com/scholar_case?case=8970497708102131356&hl=en&as_sdt=5,31,153&sciodt=4,31,153

 

In 2010, a fed. dist crt for the D. of NJ said there was no NJ case law regarding whether Del or NJ SOL would apply.  However, the court analyzed various other NJ trial court cases and other factors, and held that it believed that the Del SOL would apply.  However, this is only persuasive,not binding authority. 

 

From the case:

Conclusion

 

 

This Court has found no indication that choice-of-law clauses in contracts of adhesion, such as credit cardmember agreements, violate New Jersey public policy as articulated by the New Jersey Supreme Court. With the exception of the class-action waiver, which this Court severs from the Agreement, the Court has also found no indication that the consequence of upholding a Delaware choice-of-law clause in this case violates New Jersey public policy as articulated by the New Jersey Supreme Court. Accordingly, this Court predicts that, under New Jersey choice-of-law rules, the New Jersey Supreme Court would uphold the choice-of-law 596*596 clause in the Agreement and apply Delaware law to the Agreement. Under Delaware law, the "bill stuffer" amendments and, consequently, the agreement to arbitrate—with the exception of the class-action waiver—are valid

[racecar]

 A number of jurisdictions have abandoned the automatic application of the forum

state's statute of limitations. In the leading case, a New Jersey court applied North

Carolina's statute of limitations despite the absence of a borrowing statute.

Heavner v.Uni-Royal, Inc., 63 N.J. 130, 305 A.2d 412 (1973).

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

http://webcache.googleusercontent.com/search?q=cache:zokq9TAUrqkJ:www.leagle.com/decision/197319363NJ130_1181+&cd=1&hl=en&ct=clnk&gl=us

[Skittlethat]

Wow, I really feel like I just went from having a chance at winning this case to not having a chance at all.

 

Thanks so much for this information.

 

Does anyone have any advice on how I go about fighting this?  Should I tell Cavalry that I'm going to go with this statute of limitations fight or should I keep that to myself until the trial?  Our court here did not want us listing affirmative defenses in our answer so Cavalry doesn't know yet what my defense is.

 

I asked them for a copy of my signed agreement and for more proof that they own this account but I haven't received any reply yet.

[debtzapper]

See my PM

[racecar]

Who told you not to use Affirmative Defenses in your answer?

http://philipstern.com/resources.html read every thing on his site

http://www.philipstern.com/files/ index of files from him

Don't let them scare you and don't talk to them except in court.

Study the rules

learn how to win

[BV80]

Here's a couple of NJ cases for you to read.  They'll give you an idea of what the appeals court required for a JDB to prove it's case.  The judgment for the JDB in the first case was reversed and remanded back to the lower court.   The judgment for the JDB in the second case was affirmed.

 

http://scholar.google.com/scholar_case?case=12347089951873888061&q=%22LVNV+FUNDING,+LLC+v.+Colvell%22&hl=en&as_sdt=2,41

 

http://scholar.google.com/scholar_case?case=10015481035985920941&q=%22NEW+CENTURY+FINANCIAL+SERV.+INC.+v.+Dennegar%22&hl=en&as_sdt=2,41

[Skittlethat]

Who told you not to use Affirmative Defenses in your answer?

http://philipstern.com/resources.html read every thing on his site

http://www.philipstern.com/files/ index of files from him

Don't let them scare you and don't talk to them except in court.

Study the rules

learn how to win

 

The NJ Special Civil Part answer form is really just a yes/no check box form. It didn't even require an answer to each complaint but I included that on a separate sheet of paper anyway simply because I saw where people on this board said they have seen judges rule against defendants for not answering each complaint individually.

 

I've been reading that website and will continue to.

 

My question is now, should I resend my discovery requests that have not been answered and include the fact that I believe this account should be outside of it's statute of limitations, or should I not inform them of that?

 

 

Thanks so much for all your help everyone. I'm going to keep reading.

[debtzapper]

Who told you not to use Affirmative Defenses in your answer?

http://philipstern.com/resources.html read every thing on his site

http://www.philipstern.com/files/ index of files from him

Don't let them scare you and don't talk to them except in court.

Study the rules

learn how to win

 

 

The NJ Special Civil Part answer form is really just a yes/no check box form. It didn't even require an answer to each complaint but I included that on a separate sheet of paper anyway simply because I saw where people on this board said they have seen judges rule against defendants for not answering each complaint individually.

 

I've been reading that website and will continue to.

 

My question is now, should I resend my discovery requests that have not been answered and include the fact that I believe this account should be outside of it's statute of limitations, or should I not inform them of that?

 

 

Thanks so much for all your help everyone. I'm going to keep reading.

 

 

 

I would contact Phililp Stern as I suggested.

 

  If you want to go with the SOL defense, you will need to thoroughly familiarize yourself with that  federal district of NJ case I referenced, understand the NJ trial court decisions he cited, and using his reasoning, craft your argument why, in the absence of  any specific NJ appellate case involving choice of law in credit card cases, that Delaware's SOL should apply.  Since that fed dist decision was from 2010, you should go to your local courthouse (or maybe its online, see Stern's website) and see if any NJ trial courts have ruled on choice of law in credit card cases.

[Skittlethat]

I would contact Phililp Stern as I suggested.

 

  If you want to go with the SOL defense, you will need to thoroughly familiarize yourself with that  federal district of NJ case I referenced, understand the NJ trial court decisions he cited, and using his reasoning, craft your argument why, in the absence of  any specific NJ appellate case involving choice of law in credit card cases, that Delaware's SOL should apply.  Since that fed dist decision was from 2010, you should go to your local courthouse (or maybe its online, see Stern's website) and see if any NJ trial courts have ruled on choice of law in credit card cases.

 

Thank you. I'm still reading everything you listed. I cannot afford a lawyer so there is really no reason for me to contact one. It would be wasting his time. Quite honestly I'm unemployed so I don't even have anything to worry about them taking right now.

[debtzapper]

Thank you. I'm still reading everything you listed. I cannot afford a lawyer so there is really no reason for me to contact one. It would be wasting his time. Quite honestly I'm unemployed so I don't even have anything to worry about them taking right now.

 

Mr. Stern has been known to answer questions emailed to him.  You don't necessarily have to hire him as your lawyer.