breach of contract

[cubschicago]

my cc opened with FIA , FIA merged with BofA. For breach of contract complaint filed by BofA does BofA has obligation to produce original credit card agreement with FIA. Their attorney says credit card is revolving a/c so they dont have to. Can some one suggest me if i can object to it 

[nobk4me]

16 minutes ago, sam tam said:

my cc opened with FIA , FIA merged with BofA. For breach of contract complaint filed by BofA does BofA has obligation to produce original credit card agreement with FIA. Their attorney says credit card is revolving a/c so they dont have to. Can some one suggest me if i can object to it 

That merger was some time ago, in the early 2000s, I think?  When did you default?  When was the last payment?  There might be an arbitration clause in the old FIA cardmember agreement that has a survivability clause, and, thus, is still applicable.  Also, NY has a borrowing statute, case law is Portfolio Recovery Associates v. King (I think, operating from memory here.)  BofA uses Delaware law, where the SOL is 3 years.  If your last payment was more than 3 years before they filed suit, it is time-barred.

[cubschicago]

Just now, nobk4me said:

That merger was some time ago, in the early 2000s, I think?  When did you default?  When was the last payment?  There might be an arbitration clause in the old FIA cardmember agreement that has a survivability clause, and, thus, is still applicable.  Also, NY has a borrowing statute, case law is Portfolio Recovery Associates v. King (I think, operating from memory here.)  BofA uses Delaware law, where the SOL is 3 years.  If your last payment was more than 3 years before they filed suit, it is time-barred.

merger according to lawsuit says 2014 october, card opened in 2013 with fia/mbna

[cubschicago]

2 minutes ago, sam tam said:

merger according to lawsuit says 2014 october, card opened in 2013 with fia/mbna

my state of residency is NJ BOFA attorney says in his lawsuit that statue of limitation did not expire, how can 3 years apply ?

[nobk4me]

1 minute ago, sam tam said:

my state of residency is NJ BOFA attorney says in his lawsuit that statue of limitation did not expire, how can 3 years apply ?

I thought you were in NY, as that is what your location is in your profile.

[cubschicago]

3 minutes ago, nobk4me said:

I thought you were in NY, as that is what your location is in your profile.

i wish i moved NY, I am only 5 miles away from NY. bofa credit card agreement states laws of state of delaware applies 

[Bulldoger]

longshot but you could argue for a change of venue and try to move case to NY.  Argument would be that is proper venue as you used the card primarily in NY.  Just a thought.  

[BV80]

4 hours ago, Bulldoger said:

longshot but you could argue for a change of venue and try to move case to NY.  Argument would be that is proper venue as you used the card primarily in NY.  Just a thought.  

Definitely a long shot.

[BV80]

9 hours ago, sam tam said:

i wish i moved NY, I am only 5 miles away from NY. bofa credit card agreement states laws of state of delaware applies 

NJ does not appear to have a borrowing statute.  The only way to argue Delaware’s SOL is to use NJ’s choice of law statute and show that DE, not NJ, has the more significant relationship to the account.

[cubschicago]

16 minutes ago, BV80 said:

NJ does not appear to have a borrowing statute.  The only way to argue Delaware’s SOL is to use NJ’s choice of law statute and show that DE, not NJ, has the more significant relationship to the account.

Thank you! do you know any case number/lawsuit succeeded by quoting significant relationship with delaware 

[BV80]

7 hours ago, sam tam said:

Thank you! do you know any case number/lawsuit succeeded by quoting significant relationship with delaware 

You don’t need NJ case that specifically references Delaware.  The issue is whether NJ’s SOL or the SOL of another state applies.  “Another state” can be any other state.  However, the cause of action may make a difference.  For instance, what a NJ court decided for a medical malpractice claim may not work for a breach of contract claim.

This may give you a start.  

In Heavner v. Uniroyal, Inc., 63 N.J. 130, 135-42, 305 A.2d 412 (1973), [the New Jersey Supreme] Court rejected the rule that the statute of limitations of the forum state automatically applies. The Court held a New Jersey court will apply the statute of limitations of another state, if that state has a greater interest in the litigation. Id. at 140-41, 305 A.2d 412. In Gantes v. Kason Corp., 145 N.J. 478, 484, 679 A.2d 106 (1996), this Court held that when this state and another state have conflicting statutes of limitations, we apply the same [choice of law] test governing choice of substantive law.

I suggest going to Google Scholar, click on “case law” which will take you to a list of states.  The 2 left-hand columns are state courts.  The 2 right-hand columns are federal courts.  You want the state courts.  Click on New Jersey, then click “done”.

After that, enter your search terms.  I would enter “choice of law” AND “statute of limitations” AND “breach of contract”.   Once the list of cases comes up, I’d also click on “sort by date” (left of page).  You really want the most recent case law.  Carefully read the rulings.  Many of them will cite Heavner.

I actually did the search for you.  If the link doesn’t work right, just follow the instructions above for the search.

https://scholar.google.com/scholar?hl=en&as_sdt=4,31&q=“choice+of+law”+AND+“statute+of+limitations”+AND+“breach+of+contract”&scisbd=2

  

[cubschicago]

45 minutes ago, BV80 said:

You don’t need NJ case that specifically references Delaware.  The issue is whether NJ’s SOL or the SOL of another state applies.  “Another state” can be any other state.  However, the cause of action may make a difference.  For instance, what a NJ court decided for a medical malpractice claim may not work for a breach of contract claim.

This may give you a start.  

In Heavner v. Uniroyal, Inc., 63 N.J. 130, 135-42, 305 A.2d 412 (1973), [the New Jersey Supreme] Court rejected the rule that the statute of limitations of the forum state automatically applies. The Court held a New Jersey court will apply the statute of limitations of another state, if that state has a greater interest in the litigation. Id. at 140-41, 305 A.2d 412. In Gantes v. Kason Corp., 145 N.J. 478, 484, 679 A.2d 106 (1996), this Court held that when this state and another state have conflicting statutes of limitations, we apply the same [choice of law] test governing choice of substantive law.

I suggest going to Google Scholar, click on “case law” which will take you to a list of states.  The 2 left-hand columns are state courts.  The 2 right-hand columns are federal courts.  You want the state courts.  Click on New Jersey, then click “done”.

After that, enter your search terms.  I would enter “choice of law” AND “statute of limitations” AND “breach of contract”.   Once the list of cases comes up, I’d also click on “sort by date” (left of page).  You really want the most recent case law.  Carefully read the rulings.  Many of them will cite Heavner.

I actually did the search for you.  If the link doesn’t work right, just follow the instructions above for the search.

https://scholar.google.com/scholar?hl=en&as_sdt=4,31&q=“choice+of+law”+AND+“statute+of+limitations”+AND+“breach+of+contract”&scisbd=2

  

THANK YOU SO MUCH! I appreciate for taking time to help me.

[Jacknyc]

Sorry to say that SOL claims of the Delaware  do not work for consumer protection. If you are in NJ or IL , despite DE contract, it would be that state laws be applied to SOL.

[cubschicago]

if you just moved to a state just 12-15 months ago and never lived in that state before & during the life cycle of the credit card and never made any transactions , can i claim SOL does not apply to me they should be under delaware since the agreement explicitly states delaware law applies.

[BV80]

43 minutes ago, sam tam said:

if you just moved to a state just 12-15 months ago and never lived in that state before & during the life cycle of the credit card and never made any transactions , can i claim SOL does not apply to me they should be under delaware since the agreement explicitly states delaware law applies.

In which state did the account go into default?  If it was NY, that state does have a “borrowing statute” (see CPLR 202), but I don’t know how leaving the state would affect your ability to use that statute.  You may need to speak to a consumer attorney.  

[BV80]

On 9/9/2022 at 11:38 AM, Jacknyc said:

Sorry to say that SOL claims of the Delaware  do not work for consumer protection. If you are in NJ or IL , despite DE contract, it would be that state laws be applied to SOL.

Both IL and NY have borrowing statutes.  Here is the IL statute.

    (735 ILCS 5/13-210) (from Ch. 110, par. 13-210) 
    Sec. 13-210. Foreign limitation. When a cause of action has arisen in a state or territory out of this State, or in a foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this State.