Florida SOL and more

[weiss613]

What is the name of your state? Florida

Here is a major tip!

"ALSO, there is one other thing that helps you. Delaware is usually the CC capitol for cc's. If that is the case, then via venue choice, Delaware has a 3 yr statute and therefore their debt will not be honored in FL."

I just discovered this myself only yesterday and according to an attorney I spoke with he said that if the credit agreement has a clause that says the agreement is based upon "applicable law in "our state" eg a state other than Florida, then one could probably could use the other states' SOL rather than Florida's if it is shorter. About 3/4's of my cc debt has a shorter SOL than Florida. ( I now understand why Florida's is 5 yrs.) This ability to use the other states' SOL is actually in a Florida statute.

95.10 Cause of action arising in another state.--When the cause of action arose in another state or territory of the United States, or in a foreign country, and its laws forbid the maintenance of the action because of lapse of time, no action shall be maintained in this state.

The reason why I now know it's impossible to fight the 5 year SOL in Florida is the Florida statute has been defined to me by 4 great attorneys that the credit card application is a written instrument and therefore the application is a contract and it is in writing and only one party has to sign it to make it valid. The statute could have said written contract or legal contract or written agreement but chose to say written instrument which is the broadest interpretation which would include all and anything written as apposed to oral. Florida's statute itself is very vague when one tries to say that a store account is the same kind of account as a revolving charge card.(open account) I think the store account they are talking about is a builder going into his supplier and getting his goods and then he gets billed for them. I don't now think it even has to do with a department store charge account as for that there would be an application-written instrument. Unfortunately and fortunately for Florida residents such as myself, the credit info boards have given us false hope by listing Florida's SOL at 4 years. But in my case, it led to tremendous research and knowledge which I humbly thank all those out there in credit-bankruptcy message land!
My bottom line on the heart of the issue is that the statute as written is no help to those of us with cc debt whether it is the 4 or 5 year description because we are "cut off at the pass" by the super broad term written instrument and no mention of credit cards or open accounts. It seems the best we've got going is the shorter SOL we might get if the original charge card agreement mentions that the agreement (says Applicable or Governing law) is based upon a different state that does in fact have a shorter SOL.

[Ladynred]

Uh huh.. good luck with that one. The 'cause of action' occurs WHERE YOU ARE. If you live in FL and that is where you defaulted, then that is where the cause of action accrues.

Since the large majority of the CC issuers are based in either DE or SD because those states have NO LIMIT on usurious interest rates, as well as laws for incorporation that make it easy for corps to avoid all kinds of things, then an awful lot of people would be looking to use DE or SD law and SOL's. You would think that there would be at least a few people on all these boards who have done just that, used a foreign state's SOL to beat their own state's SOL laws - but I've not seen a single one in the 3+ years I've been on 4 different boards.

The 'laws governing' usually means the BANKS OPERATIONS, policies and your account is governed by the state where the CC issuer is based. Every single CC agreement I've ever seen has had this same clause in it so that someone in FL can't use FL law to dictate how a bank in DE or SD handles its business.

All I can say is.. good luck.. if you can pull it off, let us know.

[weiss613]

21. GOVERNING LAW. This Agreement and your Account and any claim, dispute or controversy arising from or relating to this Agreement or your Account, whether based on contract, tort, fraud and other intentional torts, statute, common law and/or equity, are governed by and construed in accordance with the laws of the State of Utah (without regard to internal principles of conflicts of law), and applicable federal law. The legality, enforceability and interpretation of this agreement and the amounts contracted for, charged and received under this Agreement will be governed by such laws. This Agreement is entered into between you and us in Utah. We make decisions about granting credit to you from, extend credit to you under this agreement from, and accept your payments in, Utah.

Applicable Law; Other Terms. You agree that this Agreement shall be governed by the internal laws of the State of Illinois and applicable federal law. We may waive any of the provisions or conditions of this Agreement, but any such waiver shall be effective only on that occasion and shall not be construed as a continuing waiver of the waived term on any other occasion. We may waive fees and the expiration date in some states, as required by law. If any term of this Agreement is found by a court to be illegal or not enforceable, all other terms will still be in effect. If we take legal action against you because of default by you in complying with the terms of this Agreement, you must pay our reasonable attorneys’ fees and other costs of the proceedings.