Jking57

Capital One Creditcard Agreement (post-arbitration removal)

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I'd like to know from the experts here on Creditcard agreements on how to interpret and what to expect from Crap1 (excerpt quoted below) since arbitration has been removed. I have a pair of their cards with approx $1700 on each, both of which were charged off Fall 2014. I successfully settled one for my wife (2.1k) for a quarter of the total, but this was back when I was relatively new to all of this. Since then I've amassed a wealth of information, documents, as well as a whole lot of knowledge, consider myself fairly well read thanks to this forum so I'm as prepared as well as one could expect. I am from Montana and have a wealth of forms I've built from what I collected from the court house archives, all properly re-captioned, edited for clarity that have been inspected and approved by my contact at the local Self-Help Law Center.

As far as the SOL in Montana is concerned:

Contracts not in writing,  5 years.  Mont.  Code Ann.  § 27-2-202(2)

The Montana Supreme Court does not consider credit card accounts to be contracts in writing, thus they are subject to a 5-year statute of limitation from the date of last payment.

Colo. Nat'l Bank of Denver v. Story261 Mont. 375, 862 P.2d 1120, 1122 (1993) (holding that Montana's five-year statute of limitation on an account stated commences running from the date of the last payment)

The Law that Applies to Your Agreement.
We make decisions to grant credit and issue you a Card from our offices in Virginia. This Agreement will be interpreted using Virginia law. Federal law will be used when it applies.You waive any applicable statute of limitations as the law allows. Otherwise, the applicable statute of limitations period for all provisions and purposes under this Agreement (including the right to collect debt) will be the longer period provided by Virginia or the jurisdiction where you live. If any part of this Agreement is found to be unenforceable, the remaining parts will remain in effect.
Waiver.
We will not lose any of our rights if we delay taking any action for any reason or if we do not notify you. For example, we may waive your Interest Charges or Fees without notifying you and without losing our right to charge them in the future. We may always enforce our rights later and may take other actions not listed in this Agreement if the law allows them. You do not have to receive notice from us of any waiver, delay, demand or dishonor. We may proceed against you before proceeding against someone else.
Assignment.
This Agreement will be binding on, and benefit, any of your and our successors and assigns.
You may not transfer your Account or your Agreement to someone else without our written permission.
We may transfer your Account and this Agreement to another company or person without your permission and without prior notice to you. They will take our place under this Agreement. You must pay them and perform all of your obligations to them and not us. If you pay us after you are informed or learn that we have transferred your Account or this Agreement, we can handle your payment in any way we think is reasonable. This includes returning the payment to you or forwarding the payment to the other company or person."

Edited by Jking57
case law added

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@Jking57

In regard to the parts you've highlighted:

33 minutes ago, Jking57 said:

This Agreement will be interpreted using Virginia law. Federal law will be used when it applies.You waive any applicable statute of limitations as the law allows. Otherwise, the applicable statute of limitations period for all provisions and purposes under this Agreement (including the right to collect debt) will be the longer period provided by Virginia or the jurisdiction where you live.

The above states that terms of the contract will be governed under VA law.   It specifies the SOL.   Some say the VA SOL is 3 years while others say it's 5 years.   Even if it were 3 years, unless MT has a "borrowing statute" that would allow your court to apply a shorter SOL of another state, the court would apply your state's SOL.

 

48 minutes ago, Jking57 said:

We may transfer your Account and this Agreement to another company or person without your permission and without prior notice to you.

That simply means that the OC could sell the account without your permission which is what it did when it sold the account to the JDB.

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6 minutes ago, BV80 said:

@Jking57

In regard to the parts you've highlighted:

The above states that terms of the contract will be governed under VA law.   It specifies the SOL.   Some say the VA SOL is 3 years while others say it's 5 years.   Even if it were 3 years, unless MT has a "borrowing statute" that would allow your court to apply a shorter SOL of another state, the court would apply your state's SOL.

 

That simply means that the OC could sell the account without your permission which is what it did when it sold the account to the JDB.

@BV80

Hi and thanks so much for the reply, here's the clarified M. R. Civ. P. on the SOL:

27-2-503. Conflict of laws -- limitation periods. (1) Except as provided by 27-2-505, if a claim is substantively based: 
     (a) upon the law of one other state, the limitation period of that state applies; or 
     (b) upon the law of more than one state, the limitation period of one of those states chosen by this part applies. 
     (2) The limitation period of Montana applies to all other claims.

An excellent reference (via Debtorboards) for all states can be found here

On the selling of the account I figured as much and any affirmative defenses I've seen on assignment notification is moot suffice it to say.

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16 minutes ago, Jking57 said:

Hi and thanks so much for the reply, here's the clarified M. R. Civ. P. on the SOL:

27-2-503. Conflict of laws -- limitation periods. (1) Except as provided by 27-2-505, if a claim is substantively based: 
     (a) upon the law of one other state, the limitation period of that state applies; or 
     (b) upon the law of more than one state, the limitation period of one of those states chosen by this part applies. 
     (2) The limitation period of Montana applies to all other claims.

Well, first, there's no VA case law that I can find that says the SOL is 3 years on credit card debt.   Even if there were, whether or not it would be accepted by your court would depend upon whether or not MT courts consider the SOL to be substantive or procedural law.   

Even then, it's not that cut and dried.   You have the Restatement (second) of Conflicts of Laws which many states follow.  I think I read MT rulings in which the court applied the Restatement.   Also, some courts have ruled that a contract has to specifically state that the choice of law provision applies to substantive or procedural law.   Needless to say, it can get complicated.

In any case, unless you could find case law that supports a 3-year VA SOL for credit cards, it might be a difficult argument.   I'll see if I can find anything.

 

16 minutes ago, Jking57 said:

On the selling of the account I figured as much and any affirmative defenses I've seen on assignment notification is moot suffice it to say.

What is the MT law in regard to that issue?

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On 8/27/2016 at 0:52 PM, BV80 said:
 

 

Well, first, there's no VA case law that I can find that says the SOL is 3 years on credit card debt.   Even if there were, whether or not it would be accepted by your court would depend upon whether or not MT courts consider the SOL to be substantive or procedural law.   

Even then, it's not that cut and dried.   You have the Restatement (second) of Conflicts of Laws which many states follow.  I think I read MT rulings in which the court applied the Restatement.   Also, some courts have ruled that a contract has to specifically state that the choice of law provision applies to substantive or procedural law.   Needless to say, it can get complicated.

In any case, unless you could find case law that supports a 3-year VA SOL for credit cards, it might be a difficult argument.   I'll see if I can find anything.

 

What is the MT law in regard to that issue?

 

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