Jackie1989

Arbitration, Staute of limitations or Standing

Recommended Posts

 I am hoping someone here may be able to steer me in the right direction.
Had a line of credit with Fleet bank years ago it was as a "dba" type. Bank of america took over Fleet and after a couple of years  demanded that the line of credit be paid as it reached its maturity date or an amended loan agreement be signed with them. The two years prior to this, whenever I called for information on this line of credit, they were always at a loss as to which department it belonged in. This was not a product that they offered and was not considered a commercial loan, and was tossed around between consumer and commercial departments. The new amended agreement doubled the interest rate and I had no choice but to agree as I did not have the 40k to pay off. It was signed by me as in individual - even though it made references about "convenants" "use of proceeds for business purpose" etc.
It was signed - allegedly- by me as an individual.
On or about June of last year Bank sold debt to a commercial debt buyer. They sold a portfolio. I received a summons from their lawyer about 2 weeks ago. I filed an appearance. The lawyer also filed two exhibits 1. a bill of sale for a portfolio of debt 2. a contract -allegedy - signed by me. The contract also has the last name wrong 9not sure if that is an issue) Eample: my last name is Sommers and the contract  states Wommers. After I filed my appearance, with in two hours, the lawyer contacted me via email. I had set up onlione to receive communication about case via email. He stated that he would be sending me info via email and that if I had any questions or needed anything to just ask. I asked if he had anymore information. He sent a spreadsheet which should interest payments etc. month to month for a couple of years. No fees, which I am sure there were. The attorney stated that maybe I would want to agree to a "STIPULATION"?
According to spreadsheet, last payment on this account was February of 2016. 
Is there a statute of limitations issue?
It was created by bank of america in North Carolina, mailed to me, signed and delivered back. This is something that makes me wonder if statute of limitations can be at play. I am in Connecticut and understand it is 6 years for written. I am not sure if Connecticut is a "borrowing statute" state and even if so, this could be an angle.
Arbitration
contract has an arbitration provision. If i file for arbitration with court, how do i file my answer?

Any help is greatly appreaciated as I am in a financially bad situation and can not afford an attorney.
I have two weeks to file answer

Share this post


Link to post
Share on other sites

With regards to statute of limitations, I found this:

The Connecticut Supreme Court, adopting the approach set out in the Restatement (Second) of Confl ict of Laws § 187, has enunciated Connecticut’s rule for enforcement of contractual choice of law provisions as follows: the law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one that the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either (a) the chosen state has no substantial relationship to the parties or the transaction, and there is no other reasonable basis for the parties’ choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state that has a materially greater interest than the chosen state in the determination of the particular issue and that, under the rule of § 188 [of the Restatement (Second) of Conflict of Laws (1971)], would be the state of the applicable law in the absence of an effective choice of law by the parties.170 In the absence of an effective choice of law by the parties to a contract, the Connecticut Supreme Court has adopted the “most signifi cant relationship” approach taken in the Restatement (Second) of Confl ict of Laws § 188.171 It should be noted, however, that an effective choice of law provision in a contract which designates the laws of a state other than Connecticut may not preclude the assertion of Connecticut law-based tort claims arising out of or relating to the contract.172 Under Connecticut law, courts will also uphold forum selection clauses unless enforcement would be “unreasonable, unfair, unjust.”173

Share this post


Link to post
Share on other sites

Look at the contract.

It usually says something along the lines of "The laws of XXXXX state apply blah blah blah"

Does it say that?

What state does it say?

What is the SOL for that state?

Are you past the SOL.  You say you defaulted a little over 3 years ago.  If the XXXXX state were Delaware, which has 3 years, that would be great.  I honestly don't know what the SOL for North Carolina is for this contract.  You need to look it up.  And you need to be certain.  

Share this post


Link to post
Share on other sites

North Carolina is 3 years.

Contract does have the word "(seal)" next to signature box. But , from what I am reading online, that may not be adequate.

Share this post


Link to post
Share on other sites

You may have a bigger issue here.  If this is determined to be a "commercial" debt, it's very possible the "commercial" arbitration rules will be in play, meaning you will basically have to split the arbitration costs right down the middle.  If it's a $5,000 arbitration bill, you'll be on the hook for $2,500 of that.  Chances are still pretty good the debt buyer will back away from arbitration when they see a $2,500 bill, but if they decide to pay it (e.g. this is a $20,000 debt), you're screwed.

Share this post


Link to post
Share on other sites

I guess thats why they provided the contract with arbitration in it to the courts. this jdb only purchases commercial debt. i'm screwed.☹️

Share this post


Link to post
Share on other sites

The "Restatement" analysis you posted earlier means the court should apply CT SOL over NC because CT has a much more significant relationship to this debt than NC.  You could try to argue the OC was headquartered in NC, payments were received there and the breach of contract occurred there when your payments were not received there according to the terms of the agreement.

Anecdotally, I tried this argument in AZ (we also use Restatement here) on a SOL defense and it didn't work.

If this were me, I would contact AAA to find out if they would arbitrate this as a "consumer" debt since it was personally guaranteed.  If so, that's the route I would go.

  • Like 1

Share this post


Link to post
Share on other sites

Ok great. Do i need to tell them in detail why i am asking for arbitration?

With regards to "restatement", I was hoping that being this new amended contract originated in North Carolina and payments, I believe were sent there- might of been Florida-, that North Carolina had significant interest in this.

 I truly appreciate you taking the time to reply!!

Share this post


Link to post
Share on other sites
On 4/27/2019 at 9:56 AM, Jackie1989 said:

Should I show agreement to "AAA"? I am lost.

Did you call AAA to see how they would treat this proceeding? They'll tell you what to send them. 

Share this post


Link to post
Share on other sites

I've been walking in similar shoes for a while.  Unfortunately, as long as the contract you signed says it's a commercial loan, you won't be able to file a consumer arbitration case.

My commercial contracts also include a personal guarantee.  Lenders do this to protect themselves in the event a business folds or goes bankrupt.  If they can't go after the business, they can go after the person who personally guaranteed the loan.  This doesn't change the fact that it's a commercial contract.

 

On 4/26/2019 at 10:25 AM, Jackie1989 said:

The lawyer also filed two exhibits 1. a bill of sale for a portfolio of debt 2. a contract -allegedy - signed by me. The contract also has the last name wrong 9not sure if that is an issue) Eample: my last name is Sommers and the contract  states Wommers.

You said you signed and returned the BofA contract.  Are you saying the contract filed as an exhibit is not a true and correct copy of what you signed?  If so, why?  Does your copy of the contract include the same misspelling? 

 

Based on my personal experience, arbitration is something I would personally stay clear of.  You will not be protected by a consumer fee cap.

 

  • Like 3

Share this post


Link to post
Share on other sites
13 hours ago, LaneBlane said:

Based on my personal experience, arbitration is something I would personally stay clear of.  You will not be protected by a consumer fee cap.

I agree, but in the spirit of full disclosure, you weren't sued by a JDB, which is a significant factor for OP to consider.
Edit: I was mistaken about the above statement.

Share this post


Link to post
Share on other sites
22 minutes ago, Harry Seaward said:

I agree, but in the spirit of full disclosure, you weren't sued by a JDB, which is a significant factor for OP to consider.

I was sued by a JDB.

Share this post


Link to post
Share on other sites

I filled an answer to complaint. When plaintiff filed complaint and summons, they also file 2 exhibits. 1. A contract 2. A bill of sale.

Harry pointed out that they were not entered as evidence. Why were they filed and should I being filing something against them?

Thanks

Share this post


Link to post
Share on other sites

AAA would absolutely use the commercial arbitration rule, which means you split the costs 50/50.  And in the end it would likely be closer to $10k than $5k.  But, there is a much  better chance that the AAA arbitrator will accept the contract's choice of law and state that this is SOL in NC and order the case dismissed.  I don't know if that is worth paying $2500-$5000 to try out.  That would be up to you.

Share this post


Link to post
Share on other sites

do you have any insight about me responding to plaintiffs exhibits filed with complaint? do they become evidence if i do not object?

Share this post


Link to post
Share on other sites

The only function of the exhibits filled with the answer is to support a default judgment. Once you file an answer, default is not a possibility. 

Share this post


Link to post
Share on other sites

 

1 minute ago, Harry Seaward said:
 

The only function of the exhibits filled with the answer is to support a default judgment. Once you file an answer, default is not a possibility. 

the plaintiff filed exhibits with his summons.

Share this post


Link to post
Share on other sites

I meant "compliant' when i said "answer". I've given my opinion several times. If you still aren't satisfied, check with a lawyer. 

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.