Statute of Limitations (SoL)

[antipode12]

What is the name of your state (only U.S. law)? NY

I thought the SoL in NYS was 6 years for Credit Card (open-ended) debt.

BUT, I read a site (http://www.creditcards.com/credit-card-news/credit-card-state-statute-limitations-1282.php) and it seems to say that MY state is irrelevant -- that it is the state of the Credit Card Bank that matters.


For example, it states that Chase abides by Delaware statutes -- with an SoL of 3 years.

Any insights?

 

[antipode12]

Also, I believe that the debts have been sold to Collections Agencies, so the the original CC Bank doesn't own the debt any longer.

So does that mean that the Collection Agencies' home states are the where the SoL will originate from?

 

[latigo]

What is the name of your state (only U.S. law)? NY

I thought the SoL in NYS was 6 years for Credit Card (open-ended) debt.

BUT, I read a site (http://www.creditcards.com/credit-card-news/credit-card-state-statute-limitations-1282.php) and it seems to say that MY state is irrelevant -- that it is the state of the Credit Card Bank that matters.


For example, it states that Chase abides by Delaware statutes -- with an SoL of 3 years.

Any insights?

N. Y. Civil Practice Law and Rules
§ 202. Cause of action accruing without the state. An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

 

[antipode12]

Latigo, I'm not sure I understand what Statute 202 is saying.

I have, in the meantime, found other readings on the Statute of Limitations:

This is what the Chase agreement says:

GOVERNING LAW
THE TERMS AND ENFORCEMENT OF THIS AGREEMENT AND YOUR ACCOUNT SHALL
BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH FEDERAL LAW AND, TO THE
EXTENT STATE LAW APPLIES, THE LAW OF DELAWARE, WITHOUT REGARD TO
CONFLICT-OF-LAW PRINCIPLES. THE LAW OF DELAWARE, WHERE WE AND YOUR
ACCOUNT ARE LOCATED, WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE
ACCOUNT.

And the NEDAP site explains that the bank's state should apply: http://www.nedap.org/hotline/defenses.html

Update!

In April 2010, New York’s highest court, the Court of Appeals, confirmed that the statute of limitations that applies to a credit card debt may be shorter than six years, depending on where the credit card issuer is based. (See here for the Court’s decision, from Portfolio Recovery Associates v. King.)

Here’s how it works: New York has a law stating that the statute of limitations on a credit card debt is six years. But New York law also states that a creditor cannot take advantage of NY’s six-year statute of limitations if the creditor’s home state has a shorter statute of limitations. (This is what New York’s highest court recently confirmed.) Some of the biggest creditors – such as Chase, Bank of America, and Discover – have home states with three-year statutes of limitations. If you are sued on a Chase, Bank of America, or Discover credit card debt, a three-year statute of limitations will generally apply.

Example #1: Let’s say you had a Big Bank credit card. The last time you made a payment was in January 2007. You therefore “defaulted” in February 2007 (you usually “default” on a credit card debt about 30 days after your last payment). The statute of limitations starts running from your default, in February 2007. Big Bank sues you in a New York court in August 2010. Big Bank is based in Delaware, which has a three-year statute of limitations for credit card debts. Question: Has Big Bank waited too long to sue you?

Answer: YES. Since Big Bank is based in Delaware, which has a three-year statute of limitations for credit card debts, New York law says that Delaware’s three-year statute of limitations must apply. Big Bank cannot take advantage of New York’s longer six-year statute of limitations just because it sued you in New York. Because Big Bank waited more than three years to sue you on the credit card debt, the statute of limitations has expired, and the court must dismiss the case.

This same rule applies even if you are sued by a debt buyer on a credit card debt and not by the original creditor.

Example #2: The same facts as in Example #1, except now, instead of Big Bank suing you, a debt buyer called XYZ Funding has sued you on your Big Bank credit card. Question: Has XYZ Funding waited too long to sue you?

Answer: YES. You still look at where the original creditor is based – the debt buyer does not get any more time to sue you than the original creditor would have had. In Example #2, the statute of limitations that applies is still Delaware’s three-year statute of limitations, since Big Bank is based in Delaware. (It doesn’t matter where XYZ Funding is based.) Since XYZ Funding waited more than three years to sue on the Big Bank credit card debt, the statute of limitations has expired, and the court must dismiss the case.

This is the link to the 2010 case that says Delaware's SoL can apply in place of NY's. I am not so good with the legalese, so if anyone can help... http://www.law.cornell.edu/nyctap/I10_0068.htm

This all seems important because the VAST majority of people and sites out there say that the Borrower's SoL is what applies. But these resources seem to contradict that conventional wisdom.

 

[single317dad]

While you may have found precedent and/or case law that supports your assertion that Delaware's SoL should apply to your debt (I haven't read it, so can't comment on that), you're going to find that court is an unforgiving place where concepts like "I'm not sure I understand" and " I am not so good with the legalese" will be quite detrimental to your cause. Rather than starting out looking for loopholes in the agreement or legal system, you should start by learning and understanding your rules of civil procedure, statutes regarding civil collections, local court rules and intricacies, and NY case law related to your case. If you don't have a good grasp on those basics, you won't even get a chance to present these incredible arguments you're formulating.

 

[antipode12]

I completely agree, which is why I'm here. I am trying to understand the components and terminology involved, merely to understand if there is an "incredible argument" to use.

Basically, I'm trying to understand if I'm reading this correctly, and what the parts I do not understand mean.

 

[FlyingRon]

As I answered you in the other forum you asked this question. The rules of the state they SUE you in matter. They can sue you either in your home state (NY) or where the contract was executed. NY rules say that their SOL applies unless the action arises from another state and that state has a SOL that already has expired.

They can put the disclaimer as to Delaware Law into the statement but that can't mean that they can override the laws of the various states they operate in. Besides, bringing suit with you in a foreign state, even if it has jurisdiction, is not as effective as suing you where you are currently residing. This is a REVENUE issue rather than a legal principle issue.

 

[tranquility]

SOL seems like it should be easy. But, there are huge law review articles written about it still. The OP doesn't understand because his reading means the statute has run for his debt. It hasn't. There will never be enough said so that he will understand until a NY judge tells him.

 

[antipode12]

I'm not sure why some people are taking such a tone. I'm trying to understand something that is so complicated that 1000s of articles online are written about it, and as you pointed out, case law and law reviews are still grappling with. (And I'm only realizing this as I do more and more reading.)

AND, I provide sources that seem to contradict your position.

Which is to say, I do not understand the *article's* position, nor *yours*. The article shows a NY 2010 case where the judge determined that the debt would reside with the bank's home state. You claim the opposite. Could you thoughtfully engage the point that the article is making, thus returning me to the conventional wisdom of "home state applies"?

 

[single317dad]

I'm not sure why some people are taking such a tone. I'm trying to understand something that is so complicated that 1000s of articles online are written about it, and as you pointed out, case law and law reviews are still grappling with. (And I'm only realizing this as I do more and more reading.)

AND, I provide sources that seem to contradict your position.

Which is to say, I do not understand the *article's* position, nor *yours*. The article shows a NY 2010 case where the judge determined that the debt would reside with the bank's home state. You claim the opposite. Could you thoughtfully engage the point that the article is making, thus returning me to the conventional wisdom of "home state applies"?

Upon reading your link thoroughly, it appears to say precisely what you think it does. Assuming there isn't newer, contradictory case law out of NY, it will be a good argument to make. The appellant made his arguments pro se, in fact, and managed to overturn a summary judgment. That would be an expensive and difficult process, but clearly doable as it was indeed done. Good luck!