Statute of Limitations Questions

[shadow99]

If you have a "choice of law" clause in a contract that chooses a state other than your state of residence, which statute of limitations applies? I live in VA, but choice of law on some of mine are Utah, some Nevada, probably somewhere else if I checked them all.

I have read that SOL depends on whether the law is considered substantive or procedural - I have read the definitions of those terms many times, and it's still not clear to me how to tell in all cases where a law falls.

I think I understand this part:  If the SOL is determined by your state to be substantive, the choice of law state applies.  If the SOL is procedural, the your state of law applies. For the choice of law state to apply to procedural law, it must be specifically stated in the choice of law clause, which no one seems to do. Substantive law is the default for the choice of law clauses if nothing else is stated.

Virginia seems to say that SOL for debt is procedural, so Virginia's SOL's apply.  Virginia has a loophole that also says if the choice of law state has a lower SOL, it will be used instead of the Virginia SOL. 

Florida, on the other hand, has passed a law that says debt SOL is substantive, so when Capital One sues someone in Florida, the Virginia statute would apply - since that's their choice of law state.

To make it even more confusing, Virginia has a 3-year SOL on verbal or unsigned written contracts and a 5-year SOL on signed, written contracts, but there's some confusion on what makes a credit card agreement a signed, written contract. I'm guessing most JDB's won't be able to present more than a handful of statements (no signature) and a bill of sale, so maybe that part doesn't matter.

But, any opinions on how Virginia would handle statute of limitations when the contract says "choice of law" is somewhere else like Utah? 

Has anyone successfully argued that Virginia's SOL on credit card debt is 3 years instead of 5?

I'm trying to figure out when the SOL runs out with some JDB's who haven't sued me yet.

[BV80]

Here is the VA “borrowing statute”.  

§ 8.01-247. When action on contract governed by the law of another state or country barred in Virginia.

No action shall be maintained on any contract which is governed by the law of another state or country if the right of action thereon is barred either by the laws of such state or country or of this Commonwealth.

1.  If the action is barred in the state which governs the contract, it is barred in VA.

2.  If the action is barred in VA, the governing state named in the contract doesn’t matter.

In regard to the 3-year vs. 5-year SOL, I would think the 3-year SOL would apply.  Here is the 5-year statute.

§ 8.01-246. Personal actions based on contracts.

2. In actions on any contract that is not otherwise specified and that is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not;

It states that the contract must be both in writing and signed by the party to be charged.  Credit card agreements are not signed.

Here is the 3-year statute.

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 specifically stated says the unsigned, written contracts have an SOL of 3 years.

Both laws reference “any contract that is not otherwise specified”.  Unless there is a limitation specifically for credit cards, one of the 2 aforementioned laws would apply.  As I stated, I believe it would have to be the 3-year limitation.  

[shadow99]

2 hours ago, BV80 said:

As I stated, I believe it would have to be the 3-year limitation.  

Thank you!  You connected the dots perfectly for me.

[BV80]

21 minutes ago, shadow99 said:

Thank you!  You connected the dots perfectly for me.

You’re welcome!  Glad I could help.