rshaney

Regarding multi-state SOL, which law applies?

Recommended Posts

Hello,

 

First of all thank you to everyone that has contributed so much to this forum, the more I read the more valuable all this information becomes.

 

I am very new to this and have been served and preparing my answer. Ihave a couple questions, really hope someone can help.

 

My first question pertains to the SOL. My suit from a JDB with original debt from BofA was filed in my state of residence, MN. The debt however originated from when I lived in CA. Being that the SOL is different for the two states and would make a huge difference in my case which state's law is the court going to use?

 

Second question is regarding lack of standing. Since this is a JDB and several years old and likely sold a couple times would using a lack of standing defense be a good idea in my answer, or as I have read in a couple of threads should I save it for later? Lastly, if I do use it in my answer how do I phrase it, I know that is a basic question but I can't seem to get an answer?

 

Thanks in advance for any and all help.

Share this post


Link to post
Share on other sites

Generally speaking the SOL that applies is the state that you're being sued in, which should correspond to your current residence. Some states have borrowing statutes that allow you to use the SOL of the state that the creditor is from, it's something that's listed in the credit agreement. This is particularly useful if that state's SOL is shorter. 

Share this post


Link to post
Share on other sites

Thank you Spikey, so if I am reading this correctly the CA SOL which is shorter and would be time barred is out the window on this?

 

Aside from that I do not have the agreement yet and was planning on asking for that during the discovery, but from what I understand it could have reference to using Deleware law, which again would make this time barred by their laws as well, so maybe that's an argument?  

 

Any advise on the lack of standing defense? Thanks again.

Share this post


Link to post
Share on other sites

Yes, CA SOL is out the window, unless you moved back to California. 

 

Does Minnesota have a borrowing statute? If that's the case, then you'd need to see where the original creditor is incorporated. Bank of America for example is out of Delaware so a 3-year SOL would be appropriate via a borrowing statute. 

 

I'd suggest looking over the other Minnesota threads on here to get a better idea but lack of standing generally revolves around documentation or lack there of to prove that the debt collector suing you actually owns the debt. Since most junk debt buyers purchase debts in bulk, they rarely have the proper documentation or any way to tie a specific account to a sale.

Share this post


Link to post
Share on other sites

By the way, after doing some research, you have to be very careful when trying to invoke a borrowing statute. Some states do not allow them to be used when you are a resident of that state. Do your homework before you try to go that route.

Share this post


Link to post
Share on other sites

Thanks again, very much. Here is what I found, if i am reading this correctly this should be time barred either by a Deleware clause in bank of americas contract or by the location of their headquarters, is that correct? I am however having a problem translating the Subd 2., what does that mean?

 

 

541.31 CONFLICT OF LAWS; LIMITATION PERIODS.
Subdivision 1.General.

(a) Except as provided by subdivision 2 and section 541.33, if a claim is substantively based:

(1) upon the law of one other state, the limitation period of that state applies; or

(2) upon the law of more than one state, the limitation period of one of those states chosen by the law of conflict of laws of this state applies.

(B) The limitation period of this state applies to all other claims.

Subd. 2.Action arising out of state; resident plaintiff.

If a cause of action arises outside of this state and the action is barred under the applicable statute of limitations of the place where it arose, the action may be maintained in this state if the plaintiff is a resident of this state who has owned the cause of action since it accrued and the cause of action is not barred under the applicable statute of limitations of this state.

Share this post


Link to post
Share on other sites

If you can determine via Rule of Civil Procedure in MN, if the allow borrowing regarding SOL.  Here is the case law you need from CA, to derail the case.  This is a California appelatte case.  It deals directly with Delwares shorter SOL 3 years, I believe BOA is also HQ in Delaware.

 

http://caselaw.findlaw.com/ca-superior-court/1289969.html

 

First step is to see how MN, deals with borrowing another states SOL.

 

Good Luck

Share this post


Link to post
Share on other sites

It would be the choice of law provision that is contained within the contract, so you will need a copy of the contract or the agreement. Without the contract to govern you would have to argue with them which one applies.

  • Like 1

Share this post


Link to post
Share on other sites

@BV80 Is there a significance in what state I defaulted in?

 

Can anyone comment on the statute that i posted above. How would I find out what the law of conflict of laws is for MN, I can't seem to find that one.

 

Also does anyone know where I can get a bank of america credit card contract for 2007 from? Thank you to everyone for the input.

Share this post


Link to post
Share on other sites

@rshaney

 

You posted 541.31 (Conflict of Laws) in post #6.  Look at subdivision 2.

 

If a cause of action arises outside of this state and the action is barred under the applicable statute of limitations of the place where it arose, the action may be maintained in this state if the plaintiff is a resident of this state who has owned the cause of action since it accrued and the cause of action is not barred under the applicable statute of limitations of this state.

 

According to the highlighted phrase, if you defaulted in CA, the cause of action arose in CA.   (4 year SOL)

 

I interpret "has owned the cause of action since it accrued" to mean that the plaintiff would have to be the owner of the account at the time of default. 

 

So, if I'm interpreting the rest of that section correctly, it would seem that in order for you to be held liable for the account, the plaintiff would have to be a resident of MN and the owner of the account when the default occurred.

 

The default (cause of action) occurred while the OC still owned the account.  Therefore, the JDB plaintiff could not have been the owner of that cause of action when it accrued.

  • Like 2

Share this post


Link to post
Share on other sites

Thanks for that, i was really having a tough time reading that and that seems to make sense.

 

I just pulled my credit and saw that the attorney for the plantiff pulled my credit before serving me, this can't be legal can it? I searched and found another thread on this but didn't get too much info on it. Anyone know anything about this?

Share this post


Link to post
Share on other sites

California Civil Code §1654 (“In cases of uncertainty ... the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist")

 

If there is an uncertainty the judge has to make a determination in light most favorable the person who did not draft the contract.......Contra Proferentem

 

If they cannot provide a contract that governs a determination in light most favorable to you,,,,

 

Lack of standing by proving they do not own the debt would be easier than proving the sol,,,,,failure to state a claim for which relief can be granted.

Share this post


Link to post
Share on other sites

California Civil Code §1654 (“In cases of uncertainty ... the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist")

 

If there is an uncertainty the judge has to make a determination in light most favorable the person who did not draft the contract.......Contra Proferentem

 

If they cannot provide a contract that governs a determination in light most favorable to you,,,,

 

. . . in plain language, "construed against the drafter,"

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.