Contract Law-Statute Of Limitations

[rudy14]

What is the name of your state? OHIO


I am being sued by a finance company for the deliquent amount of a default loan in the sum of $10,680.00

I have been doing a little bit of research and have come up with a viable defense but wanted some insight on the matter before i file my case management with the Municipal Court.



Back in July of 1998, i was 18 and in the Navy, stationed in Pensacola, FL. I purchased a 1994 Eagle Talon and financed it for approximately 7000.00 (which was way more than the car was worth but i was young and dumb.) The car was a piece of crap, constantly breaking down and had needed some adjusments in which the dealership agreed to fix but never did. Needless to say the car turned out to be a lemon.

I was later transferred to Jacksonville, FL in October and took the car with me. I was discharged in June of 99 and on my way driving the car back to OHIO, it broke down in Lake City Florida. The company that financed my car called and called and i told them that it had broke down on the side of the road and it was towed to the Jeep/Eagle Dealership in Lake City and that i disputed the debt and if htey wanted it they could get it there because i wasnt going to pay for it anymore.

Many months went by and they called again and i refused. A year or so went by they called demanding payment, i again refused. I didnt hear from them for almost a year and they called yet again and i told them to stop calling and i wasnt going to pay for it. I didnt hear from them again for almost 2 years and they started calling again. This time i didnt answer the phone and they called fror 2 months straight leaving message on my machine every day for the whole 2 months. In October of 2004 they filed a lawsuit with the Municipal court in the city that i live in. They said that the debt became deliquent and valid on the 13th of april of 1999 and they are suing me for 10,680.00 the amount of the car plus finance charges late payments late fees, etc...

While doing my research it says that according to Florida law, that they have 5 years from the date that the debt becomes deliquent to file the law suit, putting the statute of limitations at April 13th of 2004. They didnt file the suit until 6 months after that. I also foudn that according to the fair credi reporting act and yadda yadda, that the statute of limitations is binded by and governed by the state in which the debt became valid or delinquent, and in which the state i was living in at the time the debt became valid or delinquent. As i was still in the Navy until june of 1999 and stationed in Florida at the time, this would suggest to you that my state of residence was Florida. Im not sure if thats correct or not legally. None the less on the back of the contract that i signed with the company, it says that the contract would be bound and governed by the laws of the state of Florida and the Federal Commerce Commision of FLorida or somethign to that effect.


Would I be right in using the Statute of Limitations has surpassed as my defense and asking to have the lawsuit dropped? What further legal action could i take against them for calling me evry day for almost 3 months after i repeatedly told them to stop calling and i disputed the validity of this debt?

Any help, comments or suggestions would be greatly appreciated

Thanks


Thomas

 

[JETX]

Would I be right in using the Statute of Limitations has surpassed as my defense and asking to have the lawsuit dropped?

Of course, that COULD be a valid defense to the charge if it were correct.
However, the problem as I see it is that the creditor NORMALLY has the right to apply the SOL from either where the contract was entered OR where you are now located. If this is correct (and it would require a full read of the contract to confirm), Ohio's SOL for a written debt is 15 years.

What further legal action could i take against them for calling me evry day for almost 3 months after i repeatedly told them to stop calling and i disputed the validity of this debt?

Nothing. First, from your post, it appears that this is the original creditor. As such, the FDCPA restrictions on contacts doesn't apply. Second, even if this were a 3rd party and the FDCPA applied, there is nothing in your post showing that your 'no contact' requests, etc. were in WRITING.... as required.

 

[Alias_joe]

What is the name of your state? OHIO

Would I be right in using the Statute of Limitations has surpassed as my defense and asking to have the lawsuit dropped? What further legal action could i take against them for calling me evry day for almost 3 months after i repeatedly told them to stop calling and i disputed the validity of this debt?

Seems to me that you are right (maybe).
Time bar-
Can you PROVE that they told you when it became delinquent?

BTW, what state are they suing you in? I notice you are in Ohio?

 

[rudy14]

Rudy14

First off, Thanks thus far for your advice and knowledge, none the less, your response.

As far as having action taken against them in regards to a cease and desist notice, your right i have no documentation, just thought id ask. That is the least of my worries.

Secondly, the contract specifically states, and i quote, "This contract shall be interpreted and construed for all purposes under the laws of jurisdiction where entered into by Buyer, as shown immediately following the date hereof." So there fore wouldnt the jurisdiction where entered into by buyer(Me) Be the state of florida? After all thats wher ei bought the car and thats where i signed the paperwork.

it also states in another paragraph "Buyer hereby grants and conveys unto seller, its successors, and assigns a secuirty interest in the abvove described vehicle, including any money or goods received for the vehicle and in all insurance charges financed for buyer, and in such other property as may be described in the Federal Truth-In-Lending Disclosure block. Said security interest shall be vested in the seller, its successors and assigns and shall be controlled by and enforced pursuant to the Florida Uniform Comercial Code. Said security interest secures the full and prompt payment of the monthly payments and all other sums to the buyer now or hereafter owes pursuant to this contract and buyers full performance of each and every obligation or undertaking by him contained herein."

Im not sure if thats relevant to anything that says that its governed by the state of florida in entirety but it was mentioned so i quoted it.


Also the Attorney representing this company sent me a signed sworn affidavit, notarized by a Notary Public directly from the said financing company on behalf of their legal representative. In this document is clearly states that "I further affirm that this account is past due for payment due on 03-01-99 and payments subsequent hitherto. Said amount first became due on 03-01-99."

Also just for the record the amount owed is 10,977.65.

In the complaint filed in the Municipal court, from the attorney for the financing company, with a filing stamp from the Toledo Municipal Court dated December 9th, 2004 it states that " 3. Defendant requested plantiff to perform work/services and/or provide goods and materials."
I told them they could go pick up the car in lake city florida at the eagle dealership there....does this make any difference.

I am being sued in the state of Ohio, The loan was originated in Florida, and the Company that financed the vehicle is Located in Virginia.


Thanks again and please let me know if this makes any difference



Thomas