kcnjamie

HELP! SOL & FIA Card Servs: Should I contact original creditor?

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Hello!

 

Last week I posted about a summons I received with FIA Card Services as the plaintiff. http://www.creditinfocenter.com/community/topic/324277-help-with-fia-card-services-summons-in-ak/

 

I live in Alaska and the SOL is 3 years. For this complaint, the SOL has passed. I contacted a lawyer in Alaska and he agreed and that we should move forward with that as a defense. My lawyer contacted the plaintiffs lawyer and they said that the SOL is based on Oklahoma and should be 5 years. He is using that because he says I opened there and used there. According to the chart on this site http://www.creditinfocenter.com/rebuild/statuteLimitations.shtml, in Oklahoma: SOL for oral is 3 years and written is 5 years. Looking at the OK statute it isn't definitive on credit cards. I couldn't find anything concrete one way or the other. I also found a site discussing SOL for debt and it said that the big company's usually specify what state SOL is. It has a chart and it says SOL for Bank of America is based on Delaware laws and that time frame is 3 years. http://www.creditcards.com/credit-card-news/credit-card-state-statute-limitations-1282.php

 

Since the summons/complaint did not include any evidence and since I haven't yet located any documents on my own, I can't show anything saying where SOL should be. My lawyer and I are unsure what SOL will apply and he is hesitant to take case on full contingency because of this dilemma. So I most likely have to pay something to go forward with the possibility that we will prevail on SOL and I will be recouped. I can't afford that. So I was hoping to get more concrete information/evidence of where the SOL is based on before I sign on with the lawyer so either it will be a full contingency or I have better idea of what I'm paying for if I decide to go forward with a modified contingency.

 

So my question is, how do I go about getting documents/evidence? I figure at a minimum the credit agreement would say where SOL applies so I would hope to at least get my hands on that. Do I call the original creditor? Should I even do anything like that? I don't even know who to call because I don't think I had anything with BOA or FIA. I'd probably start with BOA. But I don't want to do anything that may hurt my case or a future case.

 

PLEASE HELP!!!

 

Thanks!

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Ask your lawyer to contact plaintiff's counsel and get a copy of the card agreement they intend to use and introduce as the basis of this SOL.  In fact have him ask plaintiff's counsel quote which AK state law he intends to use that says the state's laws where you opened the account trumps AK or DE law.  

 

My take on it is this:  when the SOL for the card agreement exceeds the state SOL that the defendant lives in the laws of the state of residence prevails.  It does not matter where the account was opened or used.  It matters where you live now, where you defaulted, and the governing law outlined in the CC agreement.

 

Were I the attorney I would send the plaintiff's counsel a letter stating that the card agreement state SOL which for BoA/FIA is Delaware/3 years or state of residence AK/3 years applies and not a former state of residence that is not part of the card agreement/contract.  They can send a check for the FCDPA violation statutory damages of $1000 and $xxxx for the attorney fees or go to federal court for the violation.  (see if you can pay the attorney a couple hundred bucks to send that letter)

 

My guess is this plaintiff's attorney folds.  I do not see any AK court allowing him to apply the state laws of OK when you no longer live there and the card agreement has a clear clause stating that the laws of DE apply.

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It's called forum shopping, and it's illegal. Your lawyer should know this. If he doesn't, you may need to look for a new lawyer. If he wants to make some money, he should help you with a counter suit. You both would come out ahead.

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Thanks for the advice! 

 

I was able to locate a site with recent credit card agreements (http://www.consumerfinance.gov/credit-cards/agreements/) and it definitely shows BOA/FIA the law applies in Delaware:

 

"WHAT LAW APPLIES

This Agreement is made in Delaware and we extend credit to you from Delaware. This Agreement is governed by the laws of
the State of Delaware (without regard to its conflict of laws principles) and by any applicable federal laws."
 
I also found a site with older examples from BOA, FIA, and MBNA and they all show Delaware. So I will go forward with that information. 
 
Thanks again for all the help! I will update with any new developments.
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Yes it does, but it really doesn't matter in your case cause Alaska also has a 3 year sol. It only makes it stronger. They could argue the ok. Longer statue, but they would need to prove you just moved to Alaska, And are not yet a perm. Resident. Even then it would be an uphill battle if ok. Has a borrowing statute.

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Look for another lawyer.   www.naca.net

 

Typically an excellent suggestion but in this rare case the OP is in Alaska and there are not exactly attorneys on every street corner like other states.  There are 3 naca attorneys for the whole state!

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Hi again!

 

Thanks for the suggestion for Krohn and Moss but they told me they don't take cases like this. They only take it BEFORE being sued....? Or he could have just told me that because I am in Alaska and they don't have anyone who can practice here. Either way disappointing...

 

I had updated the lawyer I was working with on all the information I had found out about (card agreements and that they show Delaware) but he still seems unsure if this is a win. But he says we can do a flat fee. The we'd do discovery and decide from there if we will do contingency.

 

Any thoughts?

 

 

Thanks!

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@kcnjamie

 

Let's see here.  Was the account charged off while you were in OK or AK?  

What was the date of the default that led to the charge off?

On that date, were you in AK or OK?

I have a method to my madness.  :-)

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@BV80

 

Well let the madness begin.... ;-)

 

I believe it was charged off in AK. I was in AK starting March - April 2010. I definitely have proof of being here at that time if needed. The charge off was after that. BUT the charge-off date I am using is from what the OC reported on equifax and it sounds about right from my memory.

 

BUT I don't know what date the plaintiff's lawyer has because there wasn't any evidence included with the summons.

 

Thanks again everyone for your advice! It has been helpful to bounce this issues off y'all that have experience and has relieved some stress!

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@kcnjamie

 

If the default that led to the charge-off occurred in Alaska, I would argue that because the account was still current and not in default while you lived in Oklahoma, you could not have been sued while living in Oklahoma.  No injury occurred in that state so there would have been no reason for anyone to sue you.

 

The alleged injury (default) occurred in AK and, therefore, the AK SOL would apply.    Ask the attorney about the "place of injury" in relation to the SOL.  Also add an FDCPA counterclaim for suing on a time-barred debt.

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Take BV80's analysis of your case to your lawyer.  I think you have a valid FDCPA claim.  Ask your lawyer if he would take your case on contingency, based on the attorneys' fees he would collect if he won your FDCPA claim.  You might also contact KrohnandMoss again, telling them you have a valid FDCPA claim.  They are based in Calif but their website says they have a lawyer licensed to practice in AK. A few years ago, one of their Calif based lawyers who is licensed in Miss won a FDCPA case regarding illegal debt collection calls.  I read his brief on PACER and he did an excellent job.

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Another option is to pay a flat fee for the lawyer to file a dismissal based on the SOL expiring.  It would be up to the Plaintiff to prove to the court it has not.  Once the case is tossed on those grounds the FCDPA violation is etched in stone and then he can handle that case on contingency.

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@kcnjamie

 

We are now beginning our 3rd FDCPA suit against a JDB for time-barred debt, represented by a very capable, experienced NACA attorney. The first two FDCPA lawsuits did not go to trial because a settlement was negotiated between the parties. Both JDBs asserted the bonafide error defense in their answer to the complaint. It's important to understand that the attorneys that defend JDBs in federal court are usually from top law firms, and not from the litigation mills you deal with in state court. Drafting and filing a technical FDCPA complaint is best left to experienced attorneys --if you hope to survive a motion to dismiss. Although I can't talk about details, the settlement amount is in excess of the $1000 statutory amount. An experienced consumer attorney knows where all the bodies are buried for the JDB, and should be able to go toe to toe with the opposing counsel to negotiate to your advantage. Documents can be scanned or sent and don't really require face time with your attorney. Good luck!

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