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Since it was an online loan, could she claim it's fraudulent with the credit bureaus? Lol. I'm just grasping as straws here.

I think with the right amount of e-discovery they might want to go away. Be wary on what you say the jdb's lurk and you would hate to see your words used against you. To answer nicely, I tender the simple No.

 

Areas to focus:

Statute of limitations for Maine

Electronic evidence statutes and cases

Electronic discovery

Objections at trial

A jury trial

research the new venue judge, go to court to observe.

time period for contract recission.

"documentation"(letters dated within 3 days of the loan) letting them know the school was inadequate.

 

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Maine does have a borrowing statute but it says it's only activated if both parties lived in the same state when the action arose. 

It  seems very confusing to me. The contract was signed in Maine. The contract says it's under a different state's law. Which jurisdiction applies when the lawsuit is brought in maine if the borrowing statute says we both had to live in the same 'foreign' state for the borrowing statute to apply? 

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Specifically this article that I found. Sorry to paste such a long read:

In some states (Alaska, Illinois, Maine, Oregon, and Washington), the borrowing statute is triggered when both the plaintiff and the defendant are nonresidents of the forum state. In these jurisdictions, if both were nonresidents of the forum state when the cause of action arose, the court generally will utilize the borrowing statute and apply the statute of limitation of the jurisdiction where the cause of action arose. If, however, either the plaintiff or defendant is a resident of the forum, the borrowing statute is not triggered. 

For instance, in Ouellette v. Sturm, Ruger & Co., a plaintiff sought to recover for personal injuries sustained as a result of accidental discharge of a revolver made by a Delaware corporation. The company's principal place of business was in Connecticut.(6) 

The plaintiff was a resident of Massachusetts when he bought the revolver, but one month after the purchase he moved to Maine, where the revolver discharged while he was on a hunting trip. After the accident, the plaintiff moved back to Massachusetts. He then brought suit in the federal court in Maine, taking advantage of Maine's six-year statute of limitation. 

The defendant moved for summary judgment, contending that suit was barred because Maine's borrowing statute required the court to apply the Massachusetts three-year limitation period. The district court agreed with the defendant. 

On appeal, the First Circuit certified the issue to the Supreme Judicial Court of Maine, and the court responded, holding that Maine's borrowing statute was not triggered and suit was timely filed under Maine's six-year statute of limitation. The court held that the trial court's interpretation of the statutory phrase "while all the parties have resided therein" was too broad.(7) 

The court noted that the "plain language of the borrowing statute ... clearly provides that both parties must reside in the same state at the same time in order for the borrowing provision to be applicable."(8) Because the defendant was never a resident of Massachusetts at the same time as the plaintiff, the statute of limitation of the forum state applied in this case. 

 

So similarly. Since the plaintiff was never a resident of maine. And I was never a resident of their state, would Maine SOL apply instead of their own state? 

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Also thank you @BV80 for your response. I know I haven't posted in awhile but we've now moved onto getting ready to file a motion to strike the affidavit. Can I move to strike their other evidence? The sale transfers? Since no specific accounts were mentioned can I ask them to be thrown out as they're just generalized transfer agreements? 

Also, for discovery, do I send interrogatories to the affiant himself and their lawyer will be responsible for getting them answered? 

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@BV80

It's not. It was an online private student loan. 

The he reason in curious about the SOL is that the contract states the loan would default upon leaving school. Which would mean it defaulted about 9 years ago. Whereas the jdb says it defaulted 5 years ago. But if it goes by the choice of law state, even 9 years would be within the SOL. 

If that's not a solid defense, any help would be greatly appreciated in what I should be asking from the lawyer as far as discovery goes. 

 

 

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@RandomHero

Here's the borrowing statute:


§866. Defendant out of State when action commenced; insolvency

If a person is out of the State when a cause of action accrues against him, the action may be commenced within the time limited therefor after he comes into the State. If a person is absent from and resides out of the State, after a cause of action has accrued against him, the time of his absence from the State shall not be taken as a part of the time limited for the commencement of the action. If a person is adjudged an insolvent debtor after a cause of action has accrued against him, and such cause of action is one provable in insolvency, the time of the pendency of his insolvency proceedings shall not be taken as a part of the time limited for the commencement of the action. No action shall be brought by any person whose cause of action has been barred by the laws of any state, territory or country while all the parties have resided therein.

In order for the SOL of the other state to apply, you'd both have to reside in that state.   That won't work if you were living ME when you signed the contract.

When did you last make a payment on the debt?  Was it 5 years ago?

 

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@BV80 It was 2007 when a last payment was made. Although the paperwork from the jdb says a $100 payment was made in 2013. But this is on an account statement which their letterhead on it. With account numbers that only refer to an account with them, not the original account number.  I need to get them to show a payment history of sorts, but I'm not sure how to do that in discovery. Do I simply ask for a payment record?

 

also regarding the borrowing law. Would this indeed mean that we're going by the maine SOL even if the contract chose Rhode Island law? Thank you again so much.  

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@BV80 I'd also like to request employment records of their affiant. And potentially subpoena him as a witness. Is it my job to contact him and find him or is that a request I send to the attorney and then he's responsible for getting me what I ask for?

I'm trying to prepare the motion to strike the affidavit and transfer agreements. If we're already past the pretrial conference, do I wait and object to them being admitted at trial? Or do I still file a motion beforehand?

 

the pretrial conference went well I think. The judge told the jdb attorney they were going the wrong way with their demand. (Demanding more than the loan was for). Then the judge asked me if I had any motions and when I said I was moving to strike the affidavit, the lawyer slammed his portfolio shut. The judge then have me timeline for discovery after the lawyer said he had no discovery on his end to do. I couldn't tell if it's good or bad they won't send me discovery requests. The lawyer also kept mentioning he was confident we'd be able to settle before trial. 

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@shellieh98 When objecting to the affidavit do I need specific reasons to why I'm objecting? Someone was nice enough to provide an example case here in maine where they decided an affidavit wasn't enough evidence. Would I cite that case in my motion to strike it?  I'm sorry for asking so many questions. 

 

Also @BV80 did you have any more advice as far as the SOL goes? If the contract chose RI, does that mean RI SOL regardless of the borrowing statute?

thank you again you guys. So much. 

 

Last question for now. What should I ask for in my discovery? Payment history to find out why they say I paid $100 3 years ago? Is that what I would say? I request a full payment history on the account? 

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There is a thread pinned at the top of this forum on standing.  Read it.

you object based on heresay, the affidavidt does not overcome the business record exception on heresay.  The thread will help you understand that concept.

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@RandomHero

If both parties did not reside in RI when the cause of action accrued, the RI SOL would not apply.   The cause of action would be default/failure to pay.   In a previous post, I mentioned signing the contract in Maine.    What I meant and should have said is if you lived in Maine when the account went into default, the Maine SOL would apply.  

The statute clearly provides that both parties must reside in the same state at the same time in order for the borrowing provision to be applicable. Hossler v. Barry, 403 A.2d 762, 765 (Me. 1979), Frye v. Parker, 84 Me. 251, 254, 24 A. 844, 844 (1892).

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On 2/5/2016 at 7:31 AM, RandomHero said:

It was from something I read on here to try to prove yhe affiant didn't have the proper knowledge to even make the affidavit to begin with. 

This site is riddled with errors.  You don't need the affiant's personnel/employment record to attack the credibility of the affidavit.  You need only question the employee effectively to prove to the court they blindly signed it and really don't have the personal knowledge of the records of the original creditor.

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@BV80 Thank you! So you're saying the choice of law provision in the contract doesn't mean much since the cause of action is what the SOL is about?

@Clydesmom I see what you're saying. So I was waaaay overshooting. 

Does anyone have any advice on what I should ask for in my discover as I'm running out of time for it. Should I have any interrogatories, and if so, do I just address them to the lawyer and he'll get them answered? 

How do I ask for a payment history to prove that fake 2013 payment didn't reset the SOL?

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@RandomHero

No, you're misunderstanding.   The cause of action is whatever caused you to be sued.  In this case, it would be default/failure to pay.

The statute says that in order for the other state's SOL to apply, in this case RI,  both parties (you and the plaintiff) would have to have been residing in RI at the time you stopped paying. 

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@BV80 okay. I think I finally have it. Lol. Sorry for making you repeat yourself so many times. So they're basically suing on the default. Which happened in Maine. Which means Maine SOL applies. 

What at about the partial payment of $100 they say was made in 2013? I've read somewhere that in Maine a promise to pay has to be in writing anyway in order to restart the clock. 

How do I get them to show me a payment history from the OC, the middle man (Citibank) and the jdb?

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@BV80 This is the part of the contract that worries me. It says the following:

ADDITIONAL AGREEMENTS

1.) I understand that you are located in Rhode Island and that this credit agreement will be entered into the same state. CONSEQUENTLY, THE PROVISIONS OF THIS CREDIT AGREEMENT SHALL BE GOVERNED BY FEDERAL LAW AND THE LAWS OF THE STATE OF RHODE ISLAND, WITHOUT REGARD TO CONFLICT OF LAW RULES.

I wasn't yelling, just copying how it was written. This wouldn't automatically apply RI SOL regardless of the contract and default being in maine, and the suit being filed in maine? This was an online loan, if that helps. 

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46 minutes ago, RandomHero said:

@BV80 okay. I think I finally have it. Lol. Sorry for making you repeat yourself so many times. So they're basically suing on the default. Which happened in Maine. Which means Maine SOL applies. 

What at about the partial payment of $100 they say was made in 2013? I've read somewhere that in Maine a promise to pay has to be in writing anyway in order to restart the clock. 

How do I get them to show me a payment history from the OC, the middle man (Citibank) and the jdb?

 

I thought someone might have to tell you another 150 times that Maine SOL applies. 

I would have motioned to dismiss at your hearing due to SOL being expired.  I still would file this motion ASAP.  The burden would then be on then to prove otherwise.  They would have to introduce proper evidence in court to refute.

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@fisthardcheese Hahaha. I'm sorry! It was the choice of law provision that had me really confused as to which. 

Would l file a motion to dismiss in the same letter to strike the affidavit? Or would I file the motion to dismiss based on lack of evidence to prove standing and that the debt is time barred and let their attorney counter that? 

Of if I'm asking to dismiss based on the SOL, do I hold off on striking the affidavit anyway? 

Thank you again

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