Being sued again...

[GGLorox]

Hello!

I am being sued by the same lawyer/JDB in Virginia and could really use some advice.  The first lawsuit was dismissed because there was no bill of sale from the original creditor and no bill of sale from the last JDB to the plaintiff. This time around, they were able to provide those documents (still questionable) along with more credit bank statements and an affidavit from someone claiming to be an authorized representative and vice president of C1Bank's collections department with knowledge of how C1Bank handles its business records.

I have another affidavit from the JDB/plaintiff also claiming to be “an agent and custodian of the above creditor [C1Bank] and, by reason of my position, have knowledge of how the business records are kept and am authorized to make this declaration.” This affidavit seems iffy to me. It has a signature, “VP” as its title but no name whereas the one from C1Bank has all of that so I can easily confirm the person’s identity.  Would it be useful for my case to attack the credibility of the Plaintiff’s affidavit and how?

[BackFromTheDebt]

6 hours ago, GGLorox said:

Hello!

I am being sued by the same lawyer/JDB in Virginia and could really use some advice.  The first lawsuit was dismissed because there was no bill of sale from the original creditor and no bill of sale from the last JDB to the plaintiff. This time around, they were able to provide those documents (still questionable) along with more credit bank statements and an affidavit from someone claiming to be an authorized representative and vice president of C1Bank's collections department with knowledge of how C1Bank handles its business records.

I have another affidavit from the JDB/plaintiff also claiming to be “an agent and custodian of the above creditor [C1Bank] and, by reason of my position, have knowledge of how the business records are kept and am authorized to make this declaration.” This affidavit seems iffy to me. It has a signature, “VP” as its title but no name whereas the one from C1Bank has all of that so I can easily confirm the person’s identity.  Would it be useful for my case to attack the credibility of the Plaintiff’s affidavit and how?

I once beat Crap 1 by attacking the credibility of the affiant. 
 

First off, you need to understand what a VP is in banking.  VPs are a dime a dozen.  I’m in banking. I’m a VP.  My boss is a VP.  Her boss is a VP.  In Charlotte NC where banking is the main business  the most common job title is VP.  All VP means is someone fairly senior.  Important people in banking are those who have gotten past the VP level and are Director or higher.  So VP means nothing. 
 

I don’t know the laws of your state.  In my state, Wisconsin, the consumer may demand a full accounting signed off by someone with first hand knowledge of the account.  In my Crap 1 case the affiant was a “Litigation Support Specialist.”   I moved to strike the affidavit and the accompanying evidence on the grounds that such as person wouldn’t have first hand knowledge of the account.  The judge agreed.  Cap 1 completely ignored the case afterwards. 
 

Maybe the laws are different in your state.  Maybe you won’t run across a consumer friendly judge.  But it is worth a shot.  

[Clydesmom]

3 hours ago, BackFromTheDebt said:

Maybe the laws are different in your state.  

It isn't "maybe" they are very different in Virginia.  WI is debtor friendly and VA is the polar opposite.  The OP can request a full accounting but the chances the court orders it are slim to none.  

3 hours ago, BackFromTheDebt said:

I once beat Crap 1 by attacking the credibility of the affiant. 

The problem is you did this back during the post recession/depression era when bank records were still all hard copy and most suits didn't want to spend the money on the evidence.  Times have changed dramatically since all records are transferred digitally now.  Things are very different a decade later.

It always amazes me that people refer to them as "crap" when they had no problem applying for the card(s) or using them but then take offense when they default on their contractual obligation and then are even more shocked when the creditor asserts their rights under the card agreement.  SMH

10 hours ago, GGLorox said:

Would it be useful for my case to attack the credibility of the Plaintiff’s affidavit and how?

The worst that is going to happen is the court rules against you.  You either mount a defense, settle, or file BK.  You were fortunate the first time that the court worked with you and forced them to actually prove their case.  Sometimes they just go away.  Sadly they didn't.  Fight back.  They might just drop it but have a plan if they don't and you lose.

[GGLorox]

 

15 hours ago, BackFromTheDebt said:

I once beat Crap 1 by attacking the credibility of the affiant. 
 

First off, you need to understand what a VP is in banking.  VPs are a dime a dozen.  I’m in banking. I’m a VP.  My boss is a VP.  Her boss is a VP.  In Charlotte NC where banking is the main business  the most common job title is VP.  All VP means is someone fairly senior.  Important people in banking are those who have gotten past the VP level and are Director or higher.  So VP means nothing. 
 

I don’t know the laws of your state.  In my state, Wisconsin, the consumer may demand a full accounting signed off by someone with first hand knowledge of the account.  In my Crap 1 case the affiant was a “Litigation Support Specialist.”   I moved to strike the affidavit and the accompanying evidence on the grounds that such as person wouldn’t have first hand knowledge of the account.  The judge agreed.  Cap 1 completely ignored the case afterwards. 
 

Maybe the laws are different in your state.  Maybe you won’t run across a consumer friendly judge.  But it is worth a shot.  

“VP” does sound intimidating but it’s good to know that I don’t have to see it that way.

I would really like to challenge the credibility of the affiant as I suspect the person works for the JDB, but the person’s information on the affidavit is suspiciously vague and I need to figure out how to work with that.

Thank you for sharing your story and the advice!

11 hours ago, Clydesmom said:

The worst that is going to happen is the court rules against you.  You either mount a defense, settle, or file BK.  You were fortunate the first time that the court worked with you and forced them to actually prove their case.  Sometimes they just go away.  Sadly they didn't.  Fight back.  They might just drop it but have a plan if they don't and you lose.

I will definitely fight back. I am currently working on my Grounds of Defense and will attack the Plaintiff’s standing again because the bills of sale attached do not specify my name or any identifying account information. I would love for the lawsuit to end here but the affidavit(s) may be a problem.

And on the affidavit, I was thinking about subpoenaing the affiant’s employment records/resume to challenge his or her credibility, but I have no way of identifying the person from the affidavit to file.  All I see is a signature that looks like a single letter, “VP’ as the person’s title, and a date.  I don’t know how to go about requesting proper information.

Thanks for the advice!

[BV80]

@GGLorox

Is arbitration not an option?

[GGLorox]

3 hours ago, BV80 said:

@GGLorox

Is arbitration not an option?

My credit card agreement excludes small claims from arbitration.

Does anyone happen to know if the statute of limitations for credit card debt in Virginia is 3 or 5 years?

[nobk4me]

1 hour ago, GGLorox said:

My credit card agreement excludes small claims from arbitration.

Does anyone happen to know if the statute of limitations for credit card debt in Virginia is 3 or 5 years?

I think @Bulldoger has info on that.

[Bulldoger]

4 hours ago, nobk4me said:

I think @Bulldoger has info on that.

First off, your not in small claims court. Virginia restricts attorneys from small claims court so if your up against and attorney which it appears you are , your in district court so the small claims exclusion does not apply. So arbitration is on the table if you want to go that route. 

SOL For credit cards is 5 years if plaintiff files a signed agreement by you, otherwise it's 3 years. Virginia tolled SOL due to Covid-19 from March 16-July 20 so add 126 days. 

[Clydesmom]

19 hours ago, GGLorox said:

I was thinking about subpoenaing the affiant’s employment records/resume to challenge his or her credibility,

The court will not grant this subpoena.  The business records laws were relaxed/watered down about a decade ago.  The affiant is presumed qualified.  The only way you would be able to challenge their credibility is to have them there as a live witness where you could question them.  California has a law on the books allowing a Defendant in a debt case to file for a live witness vs. an affidavit.  VA might but you need to research it and file the motion according to the rules of civil procedure.

[GGLorox]

54 minutes ago, Bulldoger said:

First off, your not in small claims court. Virginia restricts attorneys from small claims court so if your up against and attorney which it appears you are , your in district court so the small claims exclusion does not apply. So arbitration is on the table if you want to go that route. 

SOL For credit cards is 5 years if plaintiff files a signed agreement by you, otherwise it's 3 years. Virginia tolled SOL due to Covid-19 from March 16-July 20 so add 126 days. 

This is great news! My debt is a bit over $1000 with attorney's fees and I've read that businesses pay much more in arbitration. My card agreement says I should go through AAA.  How do I bring this up in court? My next court date is in November and I have to file my grounds of defense by September.

Does SOL start when I last made payment? According to my statements, the first and last payment I made was due 1/4/2018 and it was posted on December 7, 2017. However on December 11th, it was canceled and charged back to my credit card because I typed in the wrong bank information and I was issued a late fee on 1/8/2018. Online, it says the lawsuit was filed 5/12/2021. On my summons, it says it was issued 5/13/2021 and that, according to the Plaintiff, mailed me a copy 5/7/2021.  The lawyer was unable to find a signed credit card agreement. Did I meet the 3 year SOL?

[GGLorox]

2 hours ago, Clydesmom said:

The court will not grant this subpoena.  The business records laws were relaxed/watered down about a decade ago.  The affiant is presumed qualified.  The only way you would be able to challenge their credibility is to have them there as a live witness where you could question them.  California has a law on the books allowing a Defendant in a debt case to file for a live witness vs. an affidavit.  VA might but you need to research it and file the motion according to the rules of civil procedure.

I'll look into Virginia's procedures. Thanks!

[Clydesmom]

3 hours ago, GGLorox said:

Did I meet the 3 year SOL?

It appears you did not but the SOL defense is not automatic.  You must invoke it.  Have you filed an answer yet?  If so, did you use the SOL being expired as a defense?  If not you may have waved it.  You need to research if you can file an amended answer to include the SOL.  If you can do that the SOL being expired is a gold plated defense that is way better and easier than a MTC.

[BV80]

9 hours ago, GGLorox said:

This is great news! My debt is a bit over $1000 with attorney's fees and I've read that businesses pay much more in arbitration. My card agreement says I should go through AAA.  How do I bring this up in court? My next court date is in November and I have to file my grounds of defense by September.

Does SOL start when I last made payment? According to my statements, the first and last payment I made was due 1/4/2018 and it was posted on December 7, 2017. However on December 11th, it was canceled and charged back to my credit card because I typed in the wrong bank information and I was issued a late fee on 1/8/2018. Online, it says the lawsuit was filed 5/12/2021. On my summons, it says it was issued 5/13/2021 and that, according to the Plaintiff, mailed me a copy 5/7/2021.  The lawyer was unable to find a signed credit card agreement. Did I meet the 3 year SOL?

Along with the suggestion from @Clydesmom, I would look into a counterclaim for a violation of the FDCPA for filing a lawsuit on a time-barred debt.  The cardmember agreement would be a written contract that is not signed by you.

§ 8.01-246(4)

4. In actions upon (i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent, or (ii) any unwritten contract, express or implied, within three years.

The applicable section of the FDCPA is 15 U.S. Code § 1692e(2)(A).

(2)The false representation of—

(A) the character, amount, or legal status of any debt; 

In fact, I might contact a consumer attorney in order to determine if any VA state laws have been violated. 

[Bulldoger]

the SOL is 3yrs plus 126 days you state December 7, 2017. so that would make the sol date. April 12, 2021. The easiest way to do this is to cite it in you grounds for Defense. 

You will get a bill of particulars from Plaintiff. In that it will have a statement when you last made a payment or a charge. Take the date which is latest meaning if you charged something after your last payment then that date is the SOL date. Count 126 days from that date 3 years later so if date was 12/7/ 2017 go to 12/7/2020 and count 126 or 18 weeks after that which makes it April 12, 2021. If you didn't make a charge or payment thereafter. 

along or shortly after with your filing of Grounds of Defense you will file a motion to dismiss on grounds claim is time barred. Include copy of statement showing date of last activity by you state the statute of limitation date is XX/XX/XXXX and that it's before the filing date of you case no. XXXXXXX filed on XX/XX/XXXX .    

may want to add in motion the txt below showing you have considered the tolling period. 

On March 12, 2020, Governor Northam entered Executive Order Number Fifty-One (2020) Declaration of a State of Emergency Due to Novel Coronavirus COVID-19.  On March 16, 2020, the Virginia Supreme Court issued a declaration of a judicial emergency in all district and circuit courts of the Commonwealth of Virginia, pursuant to Va. Code § 17.1-330.   The Court’s orders effectively suspended all non-essential, non-emergency court proceedings in all circuit and district court and tolled and extended all statutes of limitations and case-related deadlines pursuant to Va. Code § 17.1-330(D).  
The Supreme Court issued five additional extensions of the Judicial Emergency Order tolling and extending deadlines.  On June 22, 2020, the Virginia Supreme Court issued its Sixth Order extending the Declaration of Judicial Emergency in Response to COVID 19.  Therein it extended the Judicial Emergency; however, the tolling period was concluded as of July 19, 2020, and not extended.  The tolling of deadlines in Virginia was effectively from March 16, 2020-July 19, 2020 (126 days), with computation of time to resume as of July 20, 2020. 

There are no additional or specific temporary rules extending time limits to serve 
complaints or special rules relating to methods of service.  All statutes of limitation and case-related deadlines are subject to the tolling period March 16, 2020-July 19, 2020 (126 days). 

[Bulldoger]

after your motion to dismiss is ordered you can take that to a consumer attorney and see if they will sue on contingency you could get $1000 plus payment for stress and time responding to suit.  Even if limited to the $1000 they will have to pay your attorney cost above that so it wont cost you anything most attorneys will see you for free. 

[GGLorox]

17 hours ago, Clydesmom said:

It appears you did not but the SOL defense is not automatic.  You must invoke it.  Have you filed an answer yet?  If so, did you use the SOL being expired as a defense?  If not you may have waved it.  You need to research if you can file an amended answer to include the SOL.  If you can do that the SOL being expired is a gold plated defense that is way better and easier than a MTC.

I'm happy to hear this.  I have a month or so to submit my answer.

11 hours ago, BV80 said:

Along with the suggestion from @Clydesmom, I would look into a counterclaim for a violation of the FDCPA for filing a lawsuit on a time-barred debt.  The cardmember agreement would be a written contract that is not signed by you.

§ 8.01-246(4)

4. In actions upon (i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent, or (ii) any unwritten contract, express or implied, within three years.

The applicable section of the FDCPA is 15 U.S. Code § 1692e(2)(A).

(2)The false representation of—

(A) the character, amount, or legal status of any debt; 

In fact, I might contact a consumer attorney in order to determine if any VA state laws have been violated. 

This is great. Thank you!

1 hour ago, Bulldoger said:

the SOL is 3yrs plus 126 days you state December 7, 2017. so that would make the sol date. April 12, 2021. The easiest way to do this is to cite it in you grounds for Defense. 

You will get a bill of particulars from Plaintiff. In that it will have a statement when you last made a payment or a charge. Take the date which is latest meaning if you charged something after your last payment then that date is the SOL date. Count 126 days from that date 3 years later so if date was 12/7/ 2017 go to 12/7/2020 and count 126 or 18 weeks after that which makes it April 12, 2021. If you didn't make a charge or payment thereafter. 

along or shortly after with your filing of Grounds of Defense you will file a motion to dismiss on grounds claim is time barred. Include copy of statement showing date of last activity by you state the statute of limitation date is XX/XX/XXXX and that it's before the filing date of you case no. XXXXXXX filed on XX/XX/XXXX .    

may want to add in motion the txt below showing you have considered the tolling period. 

On March 12, 2020, Governor Northam entered Executive Order Number Fifty-One (2020) Declaration of a State of Emergency Due to Novel Coronavirus COVID-19.  On March 16, 2020, the Virginia Supreme Court issued a declaration of a judicial emergency in all district and circuit courts of the Commonwealth of Virginia, pursuant to Va. Code § 17.1-330.   The Court’s orders effectively suspended all non-essential, non-emergency court proceedings in all circuit and district court and tolled and extended all statutes of limitations and case-related deadlines pursuant to Va. Code § 17.1-330(D).  
The Supreme Court issued five additional extensions of the Judicial Emergency Order tolling and extending deadlines.  On June 22, 2020, the Virginia Supreme Court issued its Sixth Order extending the Declaration of Judicial Emergency in Response to COVID 19.  Therein it extended the Judicial Emergency; however, the tolling period was concluded as of July 19, 2020, and not extended.  The tolling of deadlines in Virginia was effectively from March 16, 2020-July 19, 2020 (126 days), with computation of time to resume as of July 20, 2020. 

There are no additional or specific temporary rules extending time limits to serve 
complaints or special rules relating to methods of service.  All statutes of limitation and case-related deadlines are subject to the tolling period March 16, 2020-July 19, 2020 (126 days). 

So the last charge I made was 12/18/17 which would make the statute of limitation date 4/23/2021.  There was a credit and some late fees for nonpayment charged to my account after this date, but these  don't count right?

In my motion should I include the statute BV80 provided (§ 8.01-246(4))? I'm not really good with drafting documents off the top of my head and could really use a template for the motion.  

I have until September to file my grounds of defense and the lawyer has already sent me his Bill of Particulars.  Can I submit my motion to dismiss before my defense to see what happens?

[kittycat]

13 hours ago, BV80 said:

In fact, I might contact a consumer attorney in order to determine if any VA state laws have been violated. 

This might also be a good idea just to review the SOL issue.

There is very little authority about the statute of limitations for credit cards (in particular) in Virginia, though the former Attorney General of Virginia (Kenneth T. Cuccinelli, II) wrote a non-binding advisory opinion in 2011.

Not much has happened in the decade since.  Trial court level decisions can still go either way, whether an actual signature (or its electronic equivalent) of some form is introduced into evidence or not.

In mid 2013, a Virginia bankruptcy attorney wrote the following to his blog;

Quote

Five years if they can produce your signature on a written contract; otherwise three years.  That’s in Code of Virginia 8.01-246(2) and (4).

So what’s a written contract?  First, they have to come up with your signature.  Now you’d think they have hundreds of copies of your signature–on your original card application, and then every time you sign a charge slip.  So you’d be surprised this is not easy.  I’ve seen credit unions be very good at always keeping your card applications.  But credit card banks usually can’t.

If your debt has been sold to a debt collector, they hardly ever have your signature.

Even if they do have your signature on something, maybe that’s not quite enough.    To be a “written” contract for this purpose, something in writing has to show the complete agreement–interest rate, payment terms, due date. maybe more.  So your signature on one of those charge slips, or the original card application, is not enough.  They have to somehow tie in all the fine print.   It’s got to be “complete.”

 

Six years later, in mid 2019, he wrote the following;

Quote

Original creditors, like the credit card companies, have five years to take you to court. If they wait longer than that, they are too late. (That’s in Virginia; other states can be more or less.) For debt buyers, people like LVNV, Midland, Portfolio, it’s probably only three years, arguably two.  (The three years was based on Opinion of the Attorney General 10-028.  The current Virginia Attorney General appears to have deleted it.)

 

This probably means that there hasn't been any appeals court review during the intervening period.  His "probably" qualifier as it pertains to debt buyers seems to rest on his experience that they are less likely to be able to produce a signature (or signature equivalent) as compared to the original creditor.

It's likely that if you raise SOL as an affirmative defense, the debt buyer will argue that the longer five year period applies.  They may very well be wrong, but you'll still need to be ready to address whatever arguments they make.

I'm not sure if "C1" refers to credit one or capital one, but if whichever one it is just dumped a pile of documents on the debt buyer (after the first suit failed), there might be a greater chance that those documents include a signature equivalent as compared to the ordinary debt buyer case.

[GGLorox]

15 minutes ago, kittycat said:

This might also be a good idea just to review the SOL issue.

There is very little authority about the statute of limitations for credit cards (in particular) in Virginia, though the former Attorney General of Virginia (Kenneth T. Cuccinelli, II) wrote a non-binding advisory opinion in 2011.

Not much has happened in the decade since.  Trial court level decisions can still go either way, whether an actual signature (or its electronic equivalent) of some form is introduced into evidence or not.

In mid 2013, a Virginia bankruptcy attorney wrote the following to his blog;

 

Six years later, in mid 2019, he wrote the following;

 

This probably means that there hasn't been any appeals court review during the intervening period.  His "probably" qualifier as it pertains to debt buyers seems to rest on his experience that they are less likely to be able to produce a signature (or signature equivalent) as compared to the original creditor.

It's likely that if you raise SOL as an affirmative defense, the debt buyer will argue that the longer five year period applies.  They may very well be wrong, but you'll still need to be ready to address whatever arguments they make.

I'm not sure if "C1" refers to credit one or capital one, but if whichever one it is just dumped a pile of documents on the debt buyer (after the first suit failed), there might be a greater chance that those documents include a signature equivalent as compared to the ordinary debt buyer case.

What would be a signature equivalent? The lawyer added 5 bills of sale, an affidavit from the OC, and some more of my account statements. There is another affidavit from the Plaintiff acknowledging that the original credit agreement was either lost, destroyed, transferred into digital format, and/or unavailable. And thank you for your response. 

[kittycat]

1 hour ago, GGLorox said:

So the last charge I made was 12/18/17

Usually, in most states, the accrual date (the date on which the clock begins to run for a particular claim) has some relation to the date of default, not the date of last transaction.

[kittycat]

1 minute ago, GGLorox said:

There is another affidavit from the Plaintiff acknowledging that the original credit agreement was either lost, destroyed, transferred into digital format, and/or unavailable.

That sure can't hurt your SOL defense.

Affidavits that attest to a range of possibilities usually aren't saying much at all.   

[GGLorox]

5 minutes ago, kittycat said:

Usually, in most states, the accrual date (the date on which the clock begins to run for a particular claim) has some relation to the date of default, not the date of last transaction.

So the payment I made in December 2017 was returned but because I wasn't aware at the time, I missed the 1/4/18 due date and was charge a late fee on the 1/8/18. Did a 3 year + 126 day freeze SOL start 1/5/2018 end 5/11/2021, 1 day  before the lawyer filed?

 

8 minutes ago, kittycat said:

That sure can't hurt your SOL defense.

Affidavits that attest to a range of possibilities usually aren't saying much at all.   

Okay thanks! 

[kittycat]

1 hour ago, GGLorox said:

So the payment I made in December 2017 was returned but because I wasn't aware at the time, I missed the 1/4/18 due date and was charge a late fee on the 1/8/18. Did a 3 year + 126 day freeze SOL start 1/5/2018 end 5/11/2021, 1 day  before the lawyer filed?

A payment could potentially be the the last transaction, but probably not if it was unsuccessful.  But that doesn't mean that they won't argue otherwise.

[Bulldoger]

 

2 minutes ago, kittycat said:

Usually, in most states, the accrual date (the date on which the clock begins to run for a particular claim) has some relation to the date of default, not the date of last transaction.

 from law research attached

"Placing the pieces in order, it becomes clear that the right of action must accrue contemporaneously with the cause of action. First, there must be a duty, contractual or legal, owed by the defendant to the plaintiff (credit agreement). Second, there must be some breach or violation of that duty by the defendant (monthly payment ussually contracts state that contract is in default 30 days after missed payment) . Finally, some damage or injury must be caused by the defendant's breach of duty (lack of payment is damage). Immediately upon the suffering of loss, damage, or injury, all of the elements will be satisfied and a cause of action will accrue to the plaintiff. Likewise, as the cause of action has accrued and damage has occurred, the right of action will also immediately accrue and trigger the running of the statute of limitations."

I guess you made a december due payment in november. "I missed the 1/4/18 due date at this point you can argue that all conditions were meet contract, breach of contract (lack of payment), damage to plantiff lack of payment. SOL start 1/5/2018 end 5/11/2021, 1 day  before the lawyer filed? this will be your defense. 

problem is CC agreements sometimes spell out that card is in default after 30 days when payment is due.  Check the agreement see what it says.   

The law back in 2011 stated "4. In actions upon any unwritten contract, express or implied, within three years. " it was changed after Attorney General of Virginia (Kenneth T. Cuccinelli, wrote the non-binding advisory opinion. The law now states "4. In actions upon (i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent, or (ii) any unwritten contract, express or implied, within three years." that was done to clear up the statute. As written it requires contract signed by the debtor to move it to written contracts section and have the 5 year limitation apply.   

Accrual of Causes of Action in Virginia.pdf

[kittycat]

40 minutes ago, Bulldoger said:

The law back in 2011 stated "4. In actions upon any unwritten contract, express or implied, within three years. " it was changed after Attorney General of Virginia (Kenneth T. Cuccinelli, wrote the non-binding advisory opinion. The law now states "4. In actions upon (i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent, or (ii) any unwritten contract, express or implied, within three years." that was done to clear up the statute. As written it requires contract signed by the debtor to move it to written contracts section and have the 5 year limitation apply. 

That explains the lack of court review.

It appears that § 8.01-246(4) was changed during the 2019 Session.

Creditors probably started keeping better records of signatures shortly after the law was changed.

OP should attempt to calculate the accrual date as accurately as possible, because the debt buyer surely will once this defense is raised.

[GGLorox]

 

18 minutes ago, Bulldoger said:

 

 from law research attached

"Placing the pieces in order, it becomes clear that the right of action must accrue contemporaneously with the cause of action. First, there must be a duty, contractual or legal, owed by the defendant to the plaintiff (credit agreement). Second, there must be some breach or violation of that duty by the defendant (monthly payment ussually contracts state that contract is in default 30 days after missed payment) . Finally, some damage or injury must be caused by the defendant's breach of duty (lack of payment is damage). Immediately upon the suffering of loss, damage, or injury, all of the elements will be satisfied and a cause of action will accrue to the plaintiff. Likewise, as the cause of action has accrued and damage has occurred, the right of action will also immediately accrue and trigger the running of the statute of limitations."

I guess you made a december due payment in november. "I missed the 1/4/18 due date at this point you can argue that all conditions were meet contract, breach of contract (lack of payment), damage to plantiff lack of payment. SOL start 1/5/2018 end 5/11/2021, 1 day  before the lawyer filed? this will be your defense. 

problem is CC agreements sometimes spell out that card is in default after 30 days when payment is due.  Check the agreement see what it says.   

The law back in 2011 stated "4. In actions upon any unwritten contract, express or implied, within three years. " it was changed after Attorney General of Virginia (Kenneth T. Cuccinelli, wrote the non-binding advisory opinion. The law now states "4. In actions upon (i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent, or (ii) any unwritten contract, express or implied, within three years." that was done to clear up the statute. As written it requires contract signed by the debtor to move it to written contracts section and have the 5 year limitation apply.   

Accrual of Causes of Action in Virginia.pdf 1.57 MB · 0 downloads

I found a 2017 cardholder agreement from the OC online and it says

"You will be in default under this Agreement if any of the following events occur: (1) you exceed your assigned credit limit; (2) you fail to make any required payment when due; (3) you die, become insolvent, file a petition in bankruptcy or similar proceeding, or are adjudged bankrupt; (4) you provide any false or misleading financial or biographical information to Credit One Bank; (5) any representation or warranty you make to Credit One Bank is false or breached; (6) a guardian, conservator, receiver, custodian or trustee is appointed for you; (7) you are generally not paying your debts as they become due; (8) the Bank reasonably believes there has been a material adverse change in your financial condition; or (9) you violate any term of this Agreement"

My statements say I made my first payment in December.

Also, if this SOL defense doesn't work out can I still pursue arbitration?  There's this portion in my arbitration agreement that concerns me:

"Enforcement, Finality: You or we may bring an action, including a summary or expedited motion, to compel arbitration of Claims subject to arbitration, or to stay the litigation of any Claims pending arbitration, in any court having jurisdiction. Such action may be brought at any time, even if any such Claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered. Failure or forbearance to enforce this Arbitration Agreement at any particular time, or in connection with any particular Claims, will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims."

And thank you so much for your help so far.