Windsearch, Inc. v. Delafrange and he was pro se as well.

[Neveragain02]

this is a very interesting read:

 

Does the board have any feedback?

 

https://casetext.com/case/windsearch-inc-v-delafrange-1

[BV80]

6 hours ago, Neveragain02 said:

this is a very interesting read:

 

Does the board have any feedback?

 

https://casetext.com/case/windsearch-inc-v-delafrange-1

It was a NY appeal in which the lower court’s ruling was reversed and dismissed in favor of the consumer due to the expiration of the SOL based on the Delaware governing law in the agreement.  Does it affect you in some way?

[Neveragain02]

3 hours ago, BV80 said:

It was a NY appeal in which the lower court’s ruling was reversed and dismissed in favor of the consumer due to the expiration of the SOL based on the Delaware governing law in the agreement.  Does it affect you in some way?

What I’m getting out of this is the debtor was able to use the creditor states sol to fight the debt. 
 

example debtor  sol should be 6 years

 but where the credit card company does business is 3 years he was able to use the 3 year sill vs the 6. 
 

I’m pretty much in this same sisuation 

 

i could be reading it wrong though

[BV80]

18 minutes ago, Neveragain02 said:

What I’m getting out of this is the debtor was able to use the creditor states sol to fight the debt. 
 

example debtor  sol should be 6 years

 but where the credit card company does business is 3 years he was able to use the 3 year sill vs the 6. 
 

I’m pretty much in this same sisuation 

 

i could be reading it wrong though

You read it correctly.  But it’s only possible if your state law or court rulings allow for it.  What is the governing state in your agreement?

[BackFromTheDebt]

18 minutes ago, Neveragain02 said:

What I’m getting out of this is the debtor was able to use the creditor states sol to fight the debt. 
 

example debtor  sol should be 6 years

 but where the credit card company does business is 3 years he was able to use the 3 year sill vs the 6. 
 

I’m pretty much in this same sisuation 

 

i could be reading it wrong though

A number of states have borrowing statutes.  Other do not.  In some cases it is vague so the courts have decided. 
 

If you are in a state with a borrowing statute you often get a shorter SOL. 
 

In some cases you can use the shorter SOL by filing in arbitration.  I did that to Discover, but afterwards Discover changed their arbitration agreement to use the debtor’s state SOL. 

[admin]

1 hour ago, BackFromTheDebt said:

In some cases you can use the shorter SOL by filing in arbitration.  I did that to Discover, but afterwards Discover changed their arbitration agreement to use the debtor’s state SOL. 

Really?  It's not that I don't believe you, but what's the law on this?

[BV80]

On 12/22/2020 at 12:16 PM, admin said:

Really?  It's not that I don't believe you, but what's the law on this?

Absolutely.  A number of courts have applied the SOL of the governing states in credit card agreements if it is shorter than the SOL of the consumer’s home state.  For instance, Ohio has a borrowing statute, and here is a ruling from the Ohio Supreme Court.

Taylor v. First Resolution Invest. Corp. (OH Supreme Court, 2016)

“Where the cause of action accrued is the key element of the borrowing statute. Thus, we must determine where the underlying collection claims accrued in this case. The most relevant precedent favors the conclusion that the cause of action accrued in Delaware, which is where the debt was to be paid and where Chase suffered its loss.”

”We follow our own precedent and that of New York's highest court and the cited federal courts and hold that the cause of action against Taylor Jarvis for her failure to pay the debt accrued in the jurisdiction where the debt was to be paid, Delaware.”

“With Delaware's statute of limitations controlling this case, FRIC's complaint was filed well outside the applicable statute of limitations. We affirm the judgment of the court of appeals that FRIC and Cheek are potentially liable under the FDCPA and the OCSPA for threatening to file suit and for filing suit on a time-barred debt, and we remand the case to the trial court for further determinations, including a determination of the effect of our holding on this issue on Taylor Jarvis's claim for abuse of process.”

It all depends where the court rules the debt accrued.

[Neveragain02]

1 hour ago, BV80 said:

You read it correctly.  But it’s only possible if your state law or court rulings allow for it.  What is the governing state in your agreement?

You mean with BAC agreement? Man I do not think I even have that. I can see a generic one just for fun to see what that would be in the time frame this account was opened. Bac does not have an arbitration clauses . So just to confirm what do I seek when I find this agreement?

"What is the governing state in your agreement?"

 

[Neveragain02]

1 hour ago, BV80 said:

You read it correctly.  But it’s only possible if your state law or court rulings allow for it.  What is the governing state in your agreement?

per the year I opened up it would be north Carolina

in Oregon however it would be 6 years

Per the agreement they are pass the SOL

again I do not pretend to know the law- I am just reading and discussing. 

 

thanks for all input

 

WHAT LAW APPLIES This Agreement is made in North Carolina and we extend credit to you from North Carolina. This Agreement is governed by the laws of the State of North Carolina (without regard to its conflict of laws principles) and by any applicable federal laws.

[BV80]

11 minutes ago, Neveragain02 said:

per the year I opened up it would be north Carolina

in Oregon however it would be 6 years

Per the agreement they are pass the SOL

again I do not pretend to know the law- I am just reading and discussing. 

 

thanks for all input

 

WHAT LAW APPLIES This Agreement is made in North Carolina and we extend credit to you from North Carolina. This Agreement is governed by the laws of the State of North Carolina (without regard to its conflict of laws principles) and by any applicable federal laws.

Read this OR Court of Appeals case which reversed the lower court’s and ruled for the defendant based on the shorter SOL of Virginia.  
 

https://scholar.google.com/scholar_case?case=3231221949745191568&q=“credit+card”+AND+“choice+of+law”&hl=en&as_sdt=4,38

Note, however, that if NC has a tolling provision, it could possibly go against you.  In the next ruling, the Court of Appeals decided that even though Delaware had a 3-year SOL, Delaware’s tolling provision tolled the SOL indefinitely.  Therefore, OR’s 6-year SOL would actually be shorter than an indefinitely tolled SOL.

https://scholar.google.com/scholar_case?case=10950588144574434363&q=“credit+card”+AND+“choice+of+law”&hl=en&as_sdt=4,38

[Neveragain02]

22 minutes ago, BV80 said:

Read this OR Court of Appeals case which reversed the lower court’s and ruled for the defendant based on the shorter SOL of Virginia.  
 

https://scholar.google.com/scholar_case?case=3231221949745191568&q=“credit+card”+AND+“choice+of+law”&hl=en&as_sdt=4,38

Note, however, that if NC has a tolling provision, it could possibly go against you.  In the next ruling, the Court of Appeals decided that even though Delaware had a 3-year SOL, Delaware’s tolling provision tolled the SOL indefinitely.  Therefore, OR’s 6-year SOL would actually be shorter than an indefinitely tolled SOL.

https://scholar.google.com/scholar_case?case=10950588144574434363&q=“credit+card”+AND+“choice+of+law”&hl=en&as_sdt=4,38

Very nice read

question where would this trolling provision be on the credit cards agreement?

 

 

 

 

 

 

[Neveragain02]

 

. In September 2009, North Carolina passed Senate Bill 974. This new law has a provision prohibiting debt collectors to use the tolling provision of North Carolina’s statute of limitations on debts. In other words, the statute of limitations will run as if you never moved. 
 

this is what I found

 can you suggest other ways I may find their trolling period 

 

Not much comes up 

 

[BV80]

12 minutes ago, Neveragain02 said:

 

. In September 2009, North Carolina passed Senate Bill 974. This new law has a provision prohibiting debt collectors to use the tolling provision of North Carolina’s statute of limitations on debts. In other words, the statute of limitations will run as if you never moved. 
 

this is what I found

 can you suggest other ways I may find their trolling period 

 

Not much comes up 

 

As long as that bill passed, that should take care of it.  

[nobk4me]

If the OP is in California, the governing case law on borrowing statutes is Resurgence v. Chambers.

[Neveragain02]

2 minutes ago, nobk4me said:

If the OP is in California, the governing case law on borrowing statutes is Resurgence v. Chambers.

I’m in Oregon

 i updated that  yesterday

 I’m not sure why it’s not updating

 

 

[supergravy]

I have exchanged a number of emails with the Oregon attorney that was involved in the case quoted above. He was also involved in a similar case that went to the OR Supreme Court where the defendant lost. In the latter case the plaintiff was a JDB which seems to have made a difference in how the court regarded the agreement. The bottom line is that these SOL arguments can go either way in Oregon and the law is not entirely clear.

The scary part is that the Supreme Court ruling (Portfolio Recovery Associates, LLC vs Sanders) was the more recent case.