Answering A Request For Judgment (updated I Won!!)

[piggy]

Hi everyone! I am new here and hoping to get your eyes on this topic. I've been asking around but I need all of the help I can get!

 

I am in NY but not the city.

 

Stopped paying on a Master Card in 7/2007

 

November of 2012 I received a Formal Complaint. I answered and filed with the court a response just saying I didn't have enough information to answer.

 

Now they have sent me a Notice of Motion. That includes all of the credit card statements. An affidavit from the bank. Credit card terms that they say are from the time of default. I have no way of knowing if that's true. No dates on it.

 

I know the SOL in NY is 6 years. I am not sure if the complaint from 2012 makes this an ok suit. Shouldn't I get a reply in a quicker time frame. Obviously this is now out of the SOL but was in it I 2012.

 

The other complicating factor is the bank is in Utah. I can't figure out if the SOL there is 4 or 6 years for sure. I keep reading conflicting arguments on this. I've ready that a credit card is always an open ended debt so that would be 4 years.

 

Also this link to my AG's site says this:

 

   It is unlawful for a debt collector to bring suit against a consumer when the claims are outside of the applicable statute of limitations, the time frame established for the enforcement of legal rights.  Under New York’s longstanding “borrowing statute,” in order for an action to be timely filed in this state, it must be commenced not only within New York’s own statute of limitations, but also within the statute of limitations of the state where the cause of action accrued (if other than New York). In debt collection actions, a cause of action accrues where the original creditor of the debt resides. For example, while New York’s statute of limitations to collect on a debt is generally six years, if the original creditor on the debt was located in Delaware, which has a three-year statute of limitations, the shorter statute of limitations would govern the action

 

http://www.ag.ny.gov/press-release/ag-schneiderman-announces-settlements-two-major-consumer-debt-buyers-unlawful-debt

 

I did see in the Card Agreement they sent it says Controlling Laws: governed in accordance with any federal laws and any applicable Utah laws. I can't find anywhere that they specify it would be using my state laws.

 

Thanks for any advice you can give me. I am pretty terrified and trying to get as much info as possible.

 

So my question is where to go with my defense answer?

 

 

[shellieh98]

Start looking in your rules for failure to prosecute. If they have sat on it for 2 years you may be able to get it dismissed if they have done nothing to keep it active.

The sol in Utah is 4 years on open ended, and 5 on written contract. So if they sued you for account stated it should be 4 years, if breach of contract they would probably argue written contract. You need to check and see if you would have had to assert that defense in your answer, some states require it to use it.

[piggy]

Thanks! I've been trying to find information on the part where they waited 2 years and can't find much. It just seems outrageous to me that they can wait years after the initial complaint.

[piggy]

I looked all over the account agreement forms and there isn't a date. Just what appears to be a form number.

 

I've read through a couple of times. The only mention I can find is that it says it is governed by Utah statutes and federal law. That's why I'm thinking I need to go with the four year SOL. It seems from everything I have read that a credit card is just considered open ended credit but I find a lot of internet arguments about this!

 

I do have to file a response. They filed a request for intervention and it has now been assigned to a judge for Oct. 30. It was not in the system until now. I found that I guess I should have filed a dismissal request after they didn't respond after 90 days to my first answer so now the Failure to Prosecute options seems to be out. At least from what I can find. Not sure if I can still put that in my response.

 

Interesting! I just found this on their website in the current agreement. This is not in the one they sent me.  It also says governed under the Utah statutes.

 

27. Jurisdiction, Venue and Service of Process. You acknowledge that you applied for credit from a bank located in Utah and by using the card are borrowing money from a bank located in Utah. You acknowledge and agree that we may enforce this Agreement and resolve any disputes, for which arbitration is not demanded in accordance with the Arbitration Agreement, in courts located in Salt Lake County, Utah, and that such courts have proper jurisdiction to hear any matters related to this Agreement. You agree that we may serve process upon you using certified mail from the United States Postal Service or any other courier service, and you hereby acknowledge that the signature of any person found at your residence or other address on such mailing receipt will serve as satisfactory proof that process was served upon you and shall be deemed notice to you thereof.

[debtzapper]

@usctrojanalum is our resident NY member.  Maybe he can chime in.

[debtzapper]

This is the leading case for NY's borrowing statute and has been cited 54 times.

 

 

PORTFOLIO RECOVERY v. King

927 NE 2d 1059, 14 NY 3d 410, 901 NYS 2d … - NY: Court of …, 2010 - Google Scholar

On April 1, 2005, nearly five years after the assignment and more than six years after the account 
was canceled, Portfolio commenced this action against King, now a resident of New York, asserting 
causes of action for breach of contract and account stated. King asserts in his answer, ...

Cited by 54 How cited Related articles Cite Save

[debtzapper]

This is an answer by one of NY leading debt collection law firms:

 

 

 

 

Statute of Limitations A. Open Ended Accounts and Written Contracts: With respect to the timeliness of a plaintiff's action in New York, a collection matter based on an open ended or written contract must be commenced within six years of the accrual of the claim. See CPLR § 213. However, it should be noted that this does not apply to contracts that fall under Article 2 of the UCC or Article 36-B of NY Gen. Bus. Law. Since the introduction of the CPLR, there was general consensus amongst the courts that contractual choice of law provisions only apply to substantive issues, and that NY follows its own procedural laws. Thus, irrespective of any contractual choice of law provision, or the location of the creditor or any successor in interest, NY courts followed their own procedural rules, specifically applying the six-year statutory commencement period to all collection actions properly filed in NY. However, on 4/29/2010, the NY State Court of Appeals reached a landmark decision in Portfolio Recovery Associates, LLC v. King, 14 N.Y.3d 410, 927 N.E.2d 1059, 901 N.Y.S.2d 575 (2010), holding that CPLR § 202 requires that a cause of action must be timely under the limitation periods of both NY and the jurisdiction where the cause of action accrued. Also, if there was any question as to the retroactivity of King in applying a statute of limitations analysis, a recently decided Federal case upheld the implied retroactivity determination of King. See Diaz v. Portfolio Recovery Associates, LLC, No. 10 CV 3920, Slip Copy, 2012 WL 661456 (E.D.N.Y. Feb. 28, 2012). 

[piggy]

Thanks! I'm going to type up the response this weekend and get it in Monday.

[debtzapper]

Unfortunately, there is no statute or UT appellate case law that states that credit cards are open-ended accounts that are governed by UT's 4 SOL.  

 

However, in Hood v. American Express, an IL fed dist court analyzed UT law and held that credit cards are open-ended accounts and therefore have a 4 year SOL.  This is persuasive, not binding authority, but it something for you to consider.

 

 

http://scholar.google.com/scholar_case?case=9142162004231638092&q=hood+credit+card&hl=en&as_sdt=203&as_ylo=2010

 

 

 

Also, in Wynne v. American Express, a TX fed dist court held that under UT law, credit cards are open-ended accounts.  Although this case was about an arbitration agreement, and not about the SOL for credit cards in UT,  an open-ended account in UT has a 4 year SOL

 

http://scholar.google.com/scholar_case?case=4674990821613882291&q=wynne+v+american+express&hl=en&as_sdt=203&as_ylo=2010

[piggy]

 

Thanks for your help everyone. I am reading through everything now and planning to type up my answer tomorrow.

[piggy]

All of this info was great!

 

I think I will be asserting the Utah SOL and referencing the NY Attorney General statement about the borrowing statute and also the Portfolio V King case.

 

Plus I will include this from the other Utah thread to prove why this account wouldn't be under the 6 year SOL:

 

The motion is supported by law because in order for the alleged debt to be subject to the 6 year statute of limitations, Utah Code §78B-2-309, the contract, obligation, or liability must be founded on an “instrument in writing.”  An instrument is defined by Utah’s Uniform Commercial Code as “a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation” (Utah Code §70A-9A-102(47)).  That definition also goes on to state “instrument does not include: writings that evidence a right to payment arising out of the use of credit or charge card or information contained on or for use with the card.” (Utah Code §70A-9A-102-47( (iii)).  No evidence provided with the complaint or disclosed by the plaintiff meets this definition and therefore the alleged account is not subject to Utah’s 6 year Statute of Limitations.

 

Thanks Again!!!

[piggy]

I'm wondering what you think of this as a response. Any advice would be appreciated if there's a way to clean it up or if you think I missed something.  Also should I mention in here that I am asking for a dismissal of the case?

 

 

 

In response to Plaintiff’s Motion To Grant Summary Judgment,  Defendant responds as follows:

 

1. The Plaintiff states that Merrick Bank is in Utah.

 

2.The Plaintiff included an Account Agreement that states Merrick Bank is governed by the laws of Utah.

 

 

3.The last payment on this account was 6/13/2007.

 

4. Utah’s four year statute of limitations, Utah Code §78B-2-307, states that an action may be brought within four years “on an open store account for any goods, wares, or merchandise;” (§78B-2-307©) and also “upon a contract, obligation, or liability not founded upon an instrument in writing;” (§78B-2-307(a)).  The alleged account meets both of these definitions and is therefore subject to this 4 year statute of limitations.

 

 

5. In order for the alleged debt to be subject to the 6 year statute of limitations, Utah Code §78B-2-309, the contract, obligation,  or     liability must be founded on an “instrument in writing.”  An instrument is defined by Utah’s Uniform Commercial Code as “a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation” (Utah Code §70A-9A-102(47)).  That definition also goes on to state “instrument does not include: writings that evidence a right to payment arising out of the use of credit or charge card or information contained on or for use with the card.” (Utah Code §70A-9A-102-47((iii)). No evidence provided with the complaint or disclosed by the plaintiff meets this definition and therefore the alleged account is not subject to Utah’s 6 year Statute of Limitations.

 

6. The New York Borrowing Statute states the action must be timely under the limitations of New York and the jurisdiction where the cause of action accrued.   

 

PORTFOLIO RECOVERY v. King, 927 NE 2d 1059 - NY: Court of Appeals 2010

CPLR 202 provides, in relevant part, that "[a]n action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued." Therefore, "[w]hen a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitation periods of both New York and the jurisdiction where the cause of action accrued" (Triarc, 93 NY2d at 528). If the claimed injury is an economic one, the cause of action typically accrues "where the plaintiff resides and sustains the economic impact of the loss" (id. at 529).

 

 

7. Applying Utah’s Statute of Limitations the action should have commenced in 2011. Because the claim was not brought until 2012, it is time barred in Utah where the causes of action accrued.

[debtzapper]

Here is a discussion about the borrowing statute by a NY lawyer

 

http://melissasteinberglaw.wordpress.com/tag/cplr-202/

[piggy]

Thanks debtzapper. I think I have a good case for the 4 years based on all of this information.

[debtzapper]

You need to include that part of the case of Hood v American Express where the judge holds that UT has a 4 year SOL.  Because the law in UT itself is unclear, you need as many authorities as possible.  Also, look at some examples of Defendant's Motion in Opposition to Summary Judgment here and on the Internet, and try to polish up your paper.  

[Guest usctrojanalum]

If you are sophisticated enough, not only would I oppose this motion - I would cross move to dismiss based on the action being time-barred.  I think Portfolio v King is the binding authority you need to use, plus the Hood v Amex is persuasive authority necessary to clear up the ambiguity of the Utah Law. 

 

Unfortunately, want of prosecution statutes in NY are pretty lame as bassplayer pointed out.  And basically, the time for them to move a case forward is basically unlimited because they are not forced to do something until they have notice from the court or the defendant that says HEY MOVE THIS CASE FORWARD OR ELSE.

[piggy]

Thanks! I put in the Hood v Amex info.

 

I filed my response yesterday. Thanks for all of your help!

[piggy]

So here's an update I could use help on. I just received a Reply Affirmation to my reply. They are arguing the appeal on Hood v Amex is stating this is a "written" agreement and they are using the following from the appeal from what I can gather.

 

"Because Hood made partial payments on her account in April 2006, her statute‐oflimitations

defense also fails. AMEX Centurion stands by its assertion that Utah law

governs because of a choice‐of‐law clause in the relevant account agreement. Utah’s statute

of limitations is either six years or four, depending on whether Hood’s debt is deemed to be

“based on a writing.” Compare UTAH CODE ANN. § 78B‐2‐309 with id. § 78B‐2‐307(1)(a).

See also In re Cluff, 313 B.R. 323, 336 (Bankr. D. Utah 2004) (“[Credit card] debts are based on

a writing because the debts (the legal obligations) are evidenced by the monthly charges

and fees which were electronically recorded and transmitted into a monthly statement.”).

Even the shorter period, though, would not have commenced until the last payment was

received from Hood in April 2006, UTAH CODE ANN. § 78B‐2‐307(1)(a), which was less than

four years before she filed her Chapter 7 case and less than four years before

AMEX Centurion filed its proof of claim in September 2009. Moreover, even if the Missouri

statute did control, see MO. REV. STAT. § 516.120, her partial payments would have tolled the

statute of limitations, see Heidbreder v. Tambke, 284 S.W.3d 740, 746–47 (Mo. Ct. App. W.D.

2009) (“Where nothing appears to show a contrary intention, the payment alone prevents

the statute from barring the claim.”); Capital One Bank v. Creed, 220 S.W.3d 874, 879 (Mo. Ct.

App. 2007). Finally, even if the statute of limitations commenced running with the last new

charges to Hood’s account in August 2005, the statute of limitations was tolled by Hood’s

bankruptcy filing. See Utah Code Ann. § 78B‐2‐112; Sittner v. Schriever, 22 P.3d 784, 788

(Utah App. 2001)."

 

Now I'm not sure that they were actually agreeing with the "written" part here or not. They include it as Amex's position but then they go on to talk about the SOL which she clearly didn't fall under anyway.

 

Here is a link to the appeals decision if that helps http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2011/D11-14/C:11-2015:J:PerCuriam:aut:T:npDp:N:807954:S:0

 

The UCC says still says this:

 

 

(47) (a) "Instrument" means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease, and is of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignment.

            ( "Instrument" does not include:

            (i) investment property;

            (ii) letters of credit; or

            (iii) writings that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card

 

They are basically saying by getting bills and paying that makes in an instrument in writing.

 

Now do I answer this thing that they sent. The date on the initial Notice of Motion was yesterday. I can't really figure out how this NY stuff works. When I filed my response they told me to just wait until I heard from the court.

[piggy]

Does anyone no if I need to reply to the Reply Affirmation I mentioned above? I can't really figure out in NY what happens next. If the judge just decides or if they actually call you in for a trial. Ugh!

[piggy]

Hi Everyone!

 

I just wanted to let you know how much I appreciate all of your help. I officially won!!! I just got the notice in the mail and I was terrified to open it. I won under it being time barred in Utah under the four years. I was pretty worried after the plaintiff's last answer.

 

Thanks again for all of your help with this.

[debtzapper]

@piggy

 

Congrats!  Glad you won.  That's a great Christmas gift.  See my PM

[piggy]

Thanks debtzapper! I'm pretty excited since I was convinced that it would go the other way. I've read the letter probably six times now.

 

Plus, now it's another judge saying SOL in Utah is four years and not six.

[debtzapper]

 

Plus, now it's another judge saying SOL in Utah is four years and not six.

 

Good.  You're making some case law yourself, at least at the trial level.

[Seadragon]

So the plaintiffs will now have to dump all Utah based SOL cases or do defendants have to fight everytime based on that. I think what you have developed is some might interesting NY case argument. Congratulations.

Funny how State laws are fair to either side sometimes.