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TX Borrowing Statute, Choice of Law, Forum Selction help


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Hey all,

I was sued by PRA for Cap One debt in February 2020.  Gave general denial and filed motion for discovery.  Because of Covid, nothing has happened yet.  I’ve recently discovered what I think is Texas’s borrowing statute(s) and could use some advice on applying it/them to my case.

From what little cases I have been able to dig up so far, it seems these are the two most referenced as Texas’s Borrowing Statute.  Statute 71.003  &  Statute 71.051.


The credit card agreement in effect at the time of default, and at the time I opened the account, states the following. 

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 is governed by applicable federal law and by Virginia law. If any part of this Agreement is unenforceable, the remaining parts will remain in effect.

Since SOL in Texas is 4 years, I want to try and get this dismissed based on Virginia SOL which is three years for non-written or unsigned contracts.  Source

They sued me on 02/18/2020 but according to the filing, last payment was 02/06/2017 which would put it in Virginia’s SOL.

I will need to dig around to find some applicable case law for credit card debt, and figure out wording my motion, but my question is, do y’all think this is a viable road to go down?  Also, any tips for applying the arguments would be appreciated.



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1 hour ago, Impress said:

Hey all,

 

I was sued by PRA for Cap One debt in February 2020.  Gave general denial and filed motion for discovery.  Because of Covid, nothing has happened yet.  I’ve recently discovered what I think is Texas’s borrowing statute(s) and could use some advice on applying it/them to my case.

From what little cases I have been able to dig up so far, it seems these are the two most referenced as Texas’s Borrowing Statute.  Statute 71.003  &  Statute 71.051.


The credit card agreement in effect at the time of default, and at the time I opened the account, states the following. 

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 is governed by applicable federal law and by Virginia law. If any part of this Agreement is unenforceable, the remaining parts will remain in effect.

Since SOL in Texas is 4 years, I want to try and get this dismissed based on Virginia SOL which is three years for non-written or unsigned contracts.  Source

They sued me on 02/18/2020 but according to the filing, last payment was 02/06/2017 which would put it in Virginia’s SOL.

I will need to dig around to find some applicable case law for credit card debt, and figure out wording my motion, but my question is, do y’all think this is a viable road to go down?  Also, any tips for applying the arguments would be appreciated.

 


 

What is the TX code for the borrowing statute?  Was that payment made after you had already defaulted?  

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9 hours ago, Impress said:

@BV80  Those statutes fall under the Civil Practice and Remedies Code.  TX Statues
As for the payment, I want to say yes.  My credit report shows this is due to fall of 10/23.  So the payment in 2017 didn't bring it current.

71.003 is for personal injury.   It is not for contracts.  Here is the first sentence of that subsection.

Sec. 71.003. APPLICATION; CERTAIN CONDUCT EXCEPTED. (a) This subchapter applies only if the individual injured would have been entitled to bring an action for the injury if the individual had lived or had been born alive.

71.051 is forum non conveniens.  That means the lawsuit was filed in a court that is not convenient for the defendant, and another court would be proper.   Here is the first sentence of that subsection.

If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties a claim or action to which this section applies would be more properly heard in a forum outside this state...

71.031 might be a possibility, but you need to find out if the definition of “injury” in that subsection includes default on a debt.  

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On 4/18/2021 at 5:58 PM, BV80 said:

What is the TX code for the borrowing statute? 

One cannot use different SOL's from other states in collection cases.  The Texas borrowing statute applies only to a party involved in the lawsuit who has relocated to (or away from) Texas during the events that lead up to a lawsuit being filed.

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2 minutes ago, texasrocker said:

One cannot use different SOL's from other states in collection cases.  The Texas borrowing statute applies only to a party involved in the lawsuit who has relocated to (or away from) Texas during the events that lead up to a lawsuit being filed. .

Thanks for the clarification. It will help the OP. 

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Posted (edited)

Thanks for the help.

*****************************************************************************************

Anyone have an opinion on arguing forum selection?  Since the clause states that Virginia law applies, the proper forum for this should be there no?  Similar thinking to arbitration clauses.  Because PRA stepped into the shoes of CapOne, they should be bound by Virginia law according to the agreement.  Ironically, PRA is also headquartered in VA.

Edited because I fell down a rabbit hole and am curious about opinions here.  Plus, this may help others doing research in the future.  

Edited by Impress
Rabbit Hole
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@Impress The governing law of the contract is a separate issue from where a lawsuit may be filed against a defendant. If you live in Texas, the proper venue (if there is no binding arbitration clause or it doesn't apply here) is the Texas court in the county and precinct where the defendant resides. This will be spelled out in your rules of civil procedure or whatever they're called in Texas. Unless Virginia is your legal domicile, and you plan on returning to Virginia during this trial, you will have your case heard in Texas. 

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3 hours ago, Impress said:

Thanks for the help.

*****************************************************************************************

Anyone have an opinion on arguing forum selection?  Since the clause states that Virginia law applies, the proper forum for this should be there no?  Similar thinking to arbitration clauses.  Because PRA stepped into the shoes of CapOne, they should be bound by Virginia law according to the agreement.  Ironically, PRA is also headquartered in VA.

Edited because I fell down a rabbit hole and am curious about opinions here.  Plus, this may help others doing research in the future.  

Just because the laws of VA apply does not mean that statement is a forum selection clause requiring a lawsuit to be brought in that state.  A “forum selection” clause would specifically require that lawsuits or actions to resolve disputes must be brought in a particular state.

Here is an explanation from a TX attorney.

https://www.law.com/texaslawyer/2018/04/05/forum-and-venue-a-distinction-with-a-difference-in-texas/?slreturn=20210319135018

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@Brotherskeeper@BV80  *nods*  I think the term I should be using is "choice of law".  

This website gives a good explanation. A quote from the article, law firm based in Alabama:
 

Quote

A "choice of law" provision insures that the law of a designated jurisdiction will govern the dispute regardless of where the dispute is adjudicated. A "forum or venue selection" clause is a different sort of provision that sets the particular state or court where adjudication will be addressed. Since these concepts are often all addressed in the same section of a document, many lawyers blur them together.



More digging in the rabbit hole uncovered this website with regards to credit cards and choice of law.  This blog from 2013, also notes choice of law can be used in Texas although it would involve filing a Motion of Judicial Notice.  Also, from what I can tell, you would need to show the other states laws have more of a connection(?) to the case then Texas would.  And prove that there is a difference between Texas and the foreign state's laws that that Texas should use their laws.  If you don't, it's assumed the laws are the same and Texas uses it's own. 

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  • Impress changed the title to TX Borrowing Statute, Choice of Law, Forum Selction help

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