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I am confused by the SOL timelines and which I would use.  

 

All credit cards I have ever opened were done in the early 2000's while living in Illinois.  

 

2004, I moved to Florida.

6/2010 was the last date of payments to any cc

8/2010 moved to California

4/2014 moved to Colorado

 

 

Which SOL timeline can I follow?  I still have an address I use in CA that will show in my credit report etc but CO is my primary.  I would prefer CA as it is only 4 years.

 

Thanks for any guidance. 

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Oh and when they filed the current suit against you, that stayed the sol meaning it stopped, they were within the sol. Now if you were to get sued on any future debts, and say you had lived in colorado for 6months, it would still be timed barred meaning they could not sue you because you were a resident of California when the sol passed. They can't take the 6 year sol on the debts you defaulted on in 2010. You were still a resident of California in 9/2014 when those other accounts passed. ( so you have a month to sweat out your other accounts, but if they file against you in California, you claim wrong venue, by the time they file against you in colo. It should be done.)

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Whew!!!  Thank you!  That helps me on other items as well as the current case.  I am filing MTC for arbitration and I was concerned that they might dismiss and refile in CO.  I think on government documents, ID card, I stated I moved in May.  I will always have CA as an address as well for credit due to a shared Amex with parents.  I have jointly lived in several states, one I never even visited.  haha. 

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@NewportSweetPea

 

Here's something you need to think about and for which you may need to prepare (just in case).  You defaulted in Florida, so that's where the cause of action arose and the SOL started running.   When you left the state, the SOL there was tolled (SOL clock stopped running).  Since you're still considered a resident of CA, here's the applicable statute.

 

 

361.  When a cause of action has arisen in another State, or in a
foreign country, and by the laws thereof an action thereon cannot
there be maintained against a person by reason of the lapse of time,
an action thereon shall not be maintained against him in this State,
except in favor of one who has been a citizen of this State, and who
has held the cause of action from the time it accrued.

That says that if you couldn't be sued in FL, you could not be sued in CA.   You could be sued in FL if you went back to that state.  I'd contact an attorney and find out how the SOL that was tolled in FL would affect the SOL of CA.

 

Hopefully, the plaintiff won't notice that you lived in FL.  But if the FL address is on any credit card statements, the issue may arise.

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@BV80 I thought of that, but the sol in fl is 4 years, tolled when she moved. So it starts over in California, which is also 4 years. Sept. 2014 will be 4 years for California. Even though she moved to colorado before the sol ran, she is still considered a resident of California until October. 2014, the sol would be done then, no starting over.

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@shellieh98

 

An action on a contract in FL is 5 years.  There's no specific case law for the SOL on credit card debt in that state.   Even if the SOL is 4 years, it was tolled once the OP left the state.  If the SOL is 4 years, Resurgence Financial v. Chambers might help the OP while he's still considered a resident of CA.  That ruling was based upon a 3-year SOL because the court ruled that the cause of action occurred in DE where the credit card company was located. 

 

We don't know the governing state of the credit card company nor do we know the exact SOL of FL.

 

Once he's considered a resident of CO, Resurgence is of no help period.  The CO SOL of 6 years could apply. 

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in most cases either the SOL for the state you live in now or the state you lived in when you entered into the credit card agreement will apply. It becomes a jurisdiction problem. Most courts hate dealing with jurisdiction issues and will use the laws of the state you live in now. Since she would still be a California resident when it expires, my money would be on applying California's laws.

I have read where some courts follow the UCC's rules and apply borrowing statutes ( like the credit cards home state) when people are sued and there are multi jurisdictional issues. If they couldn't, what would stop a creditor from suing 15 years after the default on a debt if the debtor has moved every 3-4 years?

I think what it boils down to is you CAN be sued ant time after a default on a debt, and when you have multiple jurisdictions it boils down to who makes the best argument. Are they going to chance multiple FDCPA violations trying to collect when you raise the issue?

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@shellieh98

 

I would hope the CA SOL would apply.   It's just that the OP needs to think about what he'd do if the JDB realized the cause of action arose in FL.

 

A creditor couldn't sue after 15 years no matter how many times a consumer moved.  For one thing, the debt would only be tolled in the state where the cause of action arose.   States that have borrowing statutes can apply the SOL of the state in which the cause of action arose if that state's SOL is shorter.  But it depends on which state the court decides that the cause of action arose and whether the tolling statute of the state where the cause of action arose would apply.  That's explained in case law that follows.

 

If a state doesn't have a borrowing statute, it may apply its own SOL (law of the forum where you're being sued).  Also, some states look to see which state has the most significant relationship to the debt.  Once the OP becomes a resident of Colorado, CA has no relationship because the account was not opened in that state, nor did the cause of action arise there.

 

Resurgence Financial v. Chambers is the applicable CA precedent.  The court in that case ruled that the 3-year SOL of DE applied because that was the governing state in the credit card agreement.  It also ruled that the DE's tolling statute did not apply and the SOL was not tolled because the defendant never lived in DE.

 

However, in Unifund CCR Partners v. Sunde (Washington), the defendant tried to use the DE SOL from the cc agreement, the court ruled that while the cause of action arose in DE, the SOL in DE was indefinitely tolled (even though Sunde never lived there) because Sunde wasn't available for service in DE.  As a result, WA's 6-year SOL would be shorter than an SOL that was indefinitely tolled in another state.

 

"Not only is Washington's six-year statute of limitations shorter than Delaware's indefinitely tolled statute, but the purpose of a borrowing statute, as adopted by almost every state, is to prevent forum shopping by imposing the shortest applicable statute of limitations."

 

Oregon has a borrowing statute, but that statute also borrows the tolling statutes of other states.  In CACV of Colorado v. Stevens, the Court of Appeals ruled the same way as the Washington court in Unifund CCR Partners v. Sunde.  Since DE has a tolling statute, the court had to borrow that tolling statute and ruled that the SOL was permanently tolled in DE.   Therefore, OR's 6-year SOL was shorter.

 

"Here, the difference between Oregon's limitation period under ORS 12.080— six years without tolling because defendant is an Oregon resident—and Delaware's limitation period—which could run indefinitely because defendant may never become subject to service of process in Delaware—is indisputably substantial.  Furthermore, the possibility that Delaware's limitation period for plaintiff's claim could be indefinitely tolled indisputably imposes an unfair burden on defendant in defending against the claim— viz., defendant would be unable to avail herself of a statute-of-limitation defense."

 

Here's Colorado's borrowing statute:

 

13-80-110. Causes barred in state of origin

If a cause of action arises in another state or territory or in a foreign country and, by the laws thereof, an action thereon cannot be maintained in that state, territory, or foreign country by reason of lapse of time, the cause of action shall not be maintained in this state.

 

Since the cause of action arose in FL (if the JDB realizes it), it would depend on the FL SOL.  Also,the OP could see which state governs the applicable credit card agreements.   If any of them are governed by DE, he could argue the 3-year SOL.  It would just depend on where the court decided the cause of action arose and whether CO also borrows the tolling statutes of other states.

 

Hopefully, the OP will never be sued, but if there is a lawsuit, hopefully the JDB would not notice that the cause of action didn't arise in CA.

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Yes that is what I was trying to say. But I have seen fl rule both ways. Open ended accounts have a 4 year sol in fl. Vs contract which carries a 5 year sol. I've seen Utah with the same, but Utah rules contract most the time, I haven't seen fl rule cc as a contract, not to say it doesn't happen.

There is case law to support the open ended accounts for cc.

An action to recover on an open account is essentially an action to collect on a debt created by a series of credit transactions.

- in Allen v. Mac Tools, Inc., 1996 and one similar citation

Then this saying fl is 4 year for cc.

PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES, Appellee_ Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County

13 Fla. L. Weekly Supp. 560a

Contracts -- Credit agreement -- Limitation of actions -- No error in dismissal of statement of claim for breach of contract, account stated, and unjust enrichment for debt incurred on credit card based on expiration of four-year statute of limitations -- Construction of conflicting statutory provisions establishing five-year limitations period to recover on contract founded on written instrument and four-year limitations period to recover on liability not founded on written instrument and on store accounts requires that store accounts be subject to four-year statute of limitations whether or not founded on written instrument -- Further, action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes

And this

Section 95.11(2)(B), Fla. Stat., provides that the statute of limitations on actions to recover on a contract founded on a written instrument is five years. Conversely, section 95.11(3)(k), Fla. Stat., provides that the statute of limitations to recover on a contract, obligation or liability not founded on a written instrument and on store accounts is four years.

When construing statutes, the specific controls over the general. See Northwest v. Balkany, 727 So. 2d 382 (Fla. 5th DCA 1999). Thus, if a claim arguably falls within two contradictory subsections of the statute, the more specific controls. Even if Count 1 could be deemed an action founded on a written instrument, it can also be deemed an action on a store account. See 20 Am. Jur. 2d, Credit Cards, §46 (2005); Carte Blanche Corporation v. Pappas, 216 So. 2d 917 (La. 2d Cir. 1968).3 Store accounts have been subject to a separate statute of limitations since 1872. Laws of Florida 1872, c. 1869, §10; McClellan's Digest, §10, p. 733. “The provision is for the benefit of those who have stores, and keep goods therein for sale, and sell them, keeping accounts against the purchasers and relying upon their books of accounts in which the articles are charged as evidence in case of controversy,” and applies whether there is an express or implied agreement covering the charges. Saloman v. The Pioneer Co-operative Company, 21 Fla. 374, 385, 1885 WL 1777 (Fla. 1885). The current grammatical structure, which provides for the limitations period on actions “upon a contract . . . not founded upon an instrument of writing, including an action for goods, wares and merchandise sold and delivered, and on store accounts,” has been used since 1919. (emphasis supplied). Laws of Florida 1919, c. 7838, §10, subd.9. “. . . ©lauses separated by commas are nonrestrictive clauses intended to introduce independent concepts.” Amendments to the Florida Rules of Appellate Procedure, 696 So. 2d 1103, 1108, footnote 6 (Fla. 1996) (Anstead concurring) (quoting brief); see, also, The Elements of Style, Struck and White, 3rd Ed., p. 5 (“(p)lace a comma before a conjunction introducing an independent clause”). Thus store accounts are subject to a four year statute of limitations whether or not founded on a written instrument. See Saloman, supra; Wagner v. Botts, 88 So. 2d 611, 613 (Fla. 1956) (“(h)istorically, parliamentary enactments originally were not punctuated at all. However, the Legislatures of our country have consistently attempted to follow the rules dictated by grammar books with the result that statutes are now punctuated prior to enactment. The better rule now seems to be that punctuation is a part of the Act and that it may be considered in the interpretation of the Act but may not be used to create doubt or to distort or defeat the intention of the Legislature . . . We deem it proper to adhere to what now appears to be the better rule which is to treat the rules of punctuation on a parity with other rules of interpretation.”); Broward Builders Exchange, Inc. v. Goehring, 231 So. 3d 513, 515 (Fla. 1970) (“(i)t cannot now be assumed that the Legislature was unfamiliar with this simple rule of punctuation . . .”). Store accounts, of course, as a species of open accounts, may be based on either a written or oral agreement. See Robert W. Gottfried v. Cole, 454 So. 2d 695 (Fla. 4th DCA 1984); Hawkins v. Barnes, 661 So. 2d 1271 (Fla. 5th DCA 1995).

There were more, but not posting a bunch. ;)

So fl. Is tolled, can't sue in fl, they would have to rely on defendants current state or the state where the cc was. She will not be a resident of colo. until after the sol is up in ca, so I don't think the 6 year could apply, and colo. Has borrowing statues.

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Interesting FL case about a time-barred debt, the borrowing statute, what his atty said was FL's  4 year SOL on credit cards because, as he said, such agreements are never signed, they therefore fall under the FL statute for oral contracts, and a settlement for $120,000.

 

http://www.prweb.com/releases/2010/03/prweb3657014.htm

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Well, re-reading the article, the Palm Beach judge didn't exactly say FL had a 4 yr SOL on credit cards, but he said credit cards are oral contracts, not written contracts.  Saw another article where only the court in Palm Beach FL has ruled per Shellie's post that credit cards in FL had a 4 year SOL.  Will try to find it...

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@shellieh98

 

You posted some great case law that will help FL residents with SOL arguments.  I don't know if it's a published ruling or not.  It's amazing that a state as large as FL doesn't appear to have more case law for the SOL and credit cards.

 

So fl. Is tolled, can't sue in fl, they would have to rely on defendants current state or the state where the cc was. She will not be a resident of colo. until after the sol is up in ca, so I don't think the 6 year could apply, and colo. Has borrowing statues.

 

 

Yes, the SOL will be up in CA by the time the OP becomes a resident of CO.   Like I said, my whole point is just in case a JDB notices that the cause of action accrued in FL.  If the JDB doesn't notice that, then I'd argue the CA SOL.

 

But if a JDB does notice that the cause of action accrued in FL, CA law won't apply because nothing took place in that state.   The account was opened in IL and defaulted on in FL.   Notice that the CO borrowing statute references where the cause of action accrued.  Hopefully, a CO court would agree that the FL SOL applies and that it's 4 years.

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WOW! Great information! Thank you all so much. If any of these situations come up, I will be sure to refer to this.

I have an alleged debt from Citibank and just received notice from Midland today in the mail. They have obviously received my new address somehow. No action was taken in CA on this one, but I possibly have received letters in the mail from Citi. They held onto this account until recently. I have heard Midland is just as tough as PRA. Game on.

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