Lending Club Collection | Agreement Full of Blank Lines

[BV80]

58 minutes ago, LaneBlane said:

The Borrower Agreement contains the following language that says it's governed by Utah law.   We're not in Virginia.  Out of curiosity, would this language mean Utah's SOL would apply?

The provisions of this Borrower Agreement will be governed by Federal laws and the laws of the State of Utah to the extent not preempted, without regard to any principle of conflicts of laws that would require or permit the application of the laws of any other jurisdiction.

 

Why would you want the UT SOL to apply?

[BV80]

41 minutes ago, shadow99 said:

Bulldogger just pointed that out because we're both in Virginia and we've been chatting.

I think you could argue that Utah's SOL applies.  I'm curious about that myself - when a contract says that one state law applies to the contract, but you live in a different state, which one wins?  Or is simply up to the judge.

I also had a Prosper loan with pretty much the same language. It was for slightly less than $3000, but I have a dismissal with prejudice in the works (just pending the court filing) because the JDB did not want to arbitrate.

It is based either on

1.  Whether or not your state has a borrowing statute that allows for another state’s shorter SOL or

2.  If your courts have determined the SOL is procedural rather than substantive. If they have ruled it is procedural in nature,      courts will usually determine the forum state’s SOL applies.  

[LaneBlane]

2 hours ago, shadow99 said:

I also had a Prosper loan with pretty much the same language. It was for slightly less than $3000, but I have a dismissal with prejudice in the works (just pending the court filing) because the JDB did not want to arbitrate.

I believe Prosper and LendingClub have both worked with WebBank.  It looks like WebBank and LendingClub have parted ways, though.  This may be the reason why the language is so similar.

Good luck on the dismissal with prejudice!  That's an accomplishment.

 

[LaneBlane]

1 hour ago, BV80 said:

Why would you want the UT SOL to apply?

There was a discussion about SOL for Promissory Notes in Virginia.  I just posed a question about the SOL when the agreement states the laws of Utah apply.

[Bulldoger]

2 hours ago, BV80 said:

Why would you want the UT SOL to apply?

Doesn't really matter as they are both 6 years.  But the key is this to the extent not preempted, without regard to any principle of conflicts of laws that would require or permit the application of the laws of any other jurisdiction.   It depends if state preempts it. 

[WhoCares1000]

4 hours ago, Bulldoger said:

Doesn't really matter as they are both 6 years.  But the key is this to the extent not preempted, without regard to any principle of conflicts of laws that would require or permit the application of the laws of any other jurisdiction.   It depends if state preempts it. 

I am not sure if Minnesota has a borrowing statute to allow Utah law to apply.

[BV80]

6 hours ago, Bulldoger said:

Doesn't really matter as they are both 6 years.  But the key is this to the extent not preempted, without regard to any principle of conflicts of laws that would require or permit the application of the laws of any other jurisdiction.   It depends if state preempts it. 

That’s what I meant about court rulings regarding procedural vs. substantive.

[Brotherskeeper]

@LaneBlane 

2020 Minnesota Statutes

541.31 CONFLICT OF LAWS; LIMITATION PERIODS.
     §Subdivision 1.  General. (a) Except as provided by subdivision 2 and section 541.33, if a claim is substantively based:
     (1) upon the law of one other state, the limitation period of that state applies; or

     (2) upon the law of more than one state, the limitation period of one of those states chosen by the law of conflict of laws of this state applies.

     (b) The limitation period of this state applies to all other claims.

Subd. 2.  Action arising out of state; resident plaintiff. If a cause of action arises outside of this state and the action is barred under the applicable statute of limitations of the place where it arose, the action may be maintained in this state if the plaintiff is a resident of this state who has owned the cause of action since it accrued and the cause of action is not barred under the applicable statute of limitations of this state.

     History: 2004 c 211 s 2

541.32 RULES APPLICABLE TO COMPUTATION OF LIMITATION PERIOD.
     If the statute of limitations of another state applies to the assertion of a claim in this state, the other state's relevant statutes and other rules of law governing tolling and accrual apply in computing the limitation period, but its statutes and other rules of law governing conflict of laws do not apply.

     History: 2004 c 211 s 3

541.33 UNFAIRNESS.
     If the court determines that the limitation period of another state applicable under sections 541.31 and 541.32 is substantially different from the limitation period of this state and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against, the claim, the limitation period of this state applies.

     History: 2004 c 211 s 4