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Incurred Debt in Florida, Live in Virginia – Which Statute of Limitations Do I Use?

March 6th, 2012 · 1 Comment · I'm being sued!

by Kristy Welsh

(Last Updated On: March 6, 2012)

Q. I opened credit cards while working in Florida but my home address (drivers license, insurance, taxes) was all listed in Virginia. The statute of limitations for Florida is 5 years and the statue for Virgina is 3 years. Which state applies to me? This company is taking me to court at the end of this month.

A. Technically, the state in which you incurred the debt is the state that determines the statute of limitations. In some cases, the statute of limitations is determined by the original contract, for example, it could be specified in the credit card contract or agreement that disputes be ruled by the state laws of Delaware. In this case, the statute of limitations in Delaware would take precedent.

That being said, you will most likely not be sued in Florida or Delaware. They can’t take you to court in Florida when you live in Virginia, that would be what is called improper venue. Improper venue occurs in this case because taking you to court in Florida would require you to travel to that state, which is probably a hardship.

Now that we’ve determined where you will be sued, it must be stated that typically the state in which you are sued that sets the rules of the suit. If they take you to court in Virginia, they will be bound by Virginia law which has a 3 year statute of limitations (Virginia Code ยง 8.01-246).

Another wrinkle: in some states, it is allowable to import the statute of limitations from a foreign state, for instance, they can sue using the statute of limitations in Florida or the example I gave of using the laws of Delaware to settle disputes as specified in the contract. I do not believe Virginia allows the import of statute of limitations.

If they attempt to use Florida’s statute in Virginia, you might want to ask an attorney about the legality of this. I could not find any Virginia case law which would allow the import of statute of limitations. There is certainly no state code specifying this.

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One Comment so far ↓

  • John

    You are wrong on so many points. Determining the applicable statute of limitations is a far more complicated analysis that you make it out to be. To explain it all would take too much time, but I will briefly explain some of the major points.

    First, you have to determine whether your state regards the issue of statute of limitations as procedural or substantive. If it is procedural then your own state’s law determines which state’s choice of law provision governs the matter. If is is substantive then the contractual forum state’s law determines which state’s choice of law provisions apply.

    After you determined the proper state you have to look at how that state’s laws and courts determine, using their own choice of law provisions, which statute of limitations apply. Many states have a “borrowing statute” which will apply the statute of limitations of either the forum state or the state where the cause of action accrued. This is different from the question of the contractual choice of law provision because now we look to where the harmed party suffered their harm. Once you determine where the harm occurred then you know which state’s statute of limitation can be evoked after application of the appropriate state’s borrowing statute.

    And that is the short explanation. Please refrain from giving legal advice.

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