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mashumk

Moved to Indiana 1 year ago from Oklahoma. Got lawsuit notice today about old credit card debt. This debt is probably 5 years old or so. Oklahoma's statute of limitations is 3 years. Indiana's is 6 years.

Since the debtc occured in Oklahoma, is Oklahoma statute of limitations still applicable here? Or since I'm now in Indiana am I now open to lawsuit because of Indiana's 6 year statute?

Posted: Thu May 24, 2007 3:36 pm Subject:

You need to follow the SOL of OK because the account was originally opened in that state. It doesn't matter if you further move on to a different state.

The collection agency must be licensed in your state before they have any rights to sue. Dispute the debt in writing mentioning about the SOL expiry and send it to them through US certified mail with return receipt requested. Keep a copy for records.

mashumk · Posted: Thu May 24, 2007 4:44 pm Subject:

Thanks for the prompt reply.
This suit is coming from an Indiana firm though the debt originated in Oklahoma.
Does that mean they simply shouldn't be able to sue me based on geographical grounds?

Posted: Thu May 24, 2007 6:12 pm Subject:

I've seen some discussions about this and it seems that it is up to the creditor which state they choose to sue in (usually the one with the longer SOL). You can always try the defense of the contract being signed in another state with a shorter SOL but don't know if it will stick.

Posted: Thu May 24, 2007 6:35 pm Subject:

It isnt geographical grounds, really--the first defense you have is SOL. The SOL in OK is 3 years, the debt is older than that. That automatically makes this debt non-enforceable--you need to make certain that this debt is in fact SOL before you declare it as such. The clock starts when the debt first went delinquent, if I recall correctly. If this is your intention--to fight it--then be sure not to pay them a penny, because sending a payment can restart the time on the debt.

Ok, the CA is in your state, but you should also still check to see if they are licensed in Indiana or not. Stranger things have happened. But I have another question--you said they sent you a letter about a lawsuit. What exactly does this letter say, and is it the first you have heard from this CA? It is possible that the letter they sent breaks federal law, depending on how it is written.

Posted: Thu May 24, 2007 7:01 pm Subject:

However, there is usually a statement on the contract that says "this note will be governed by the laws of ....". Most likely the state where the card issuer is located. If you received the agreement and proceeded to use the card, then you agreed that the laws of the card-issuers home state would prevail.

Most states do have provisions in their laws that allow chartered banks of another state to lend under their prevailing law.

Guest · Posted: Fri May 25, 2007 2:20 am Subject:

I've done some searches and the consensus I am finding is summed up below (basically, it's the state you currently live in):

What if a collection agency is calling you about an old debt you racked up while living in a different state? Which state's statute of limitations on delinquent debt should you refer to, the state in which you used to live or the state you live in now?

Looking to the statute of limitations in the state where you live now is a safe bet.

Creditors have two options when suing you over a delinquent debt. They can either sue you in the state where you live or sue in the state where the transaction took place. Most choose the state where you live now.

According to "Money Troubles: Legal Strategies to Cope With Your Debts":

The creditor usually selects the state where you live if it's different from where the transaction took place, because the court requires a substantial connection between you and the state in which you are sued.

That's why it's a good idea to use the statute of limitations in your home state as a guide when dealing with an old, old debt. If you have questions, be sure to consult a consumer attorney.

bankrate . com/bosre/news/cc/20040116a2.asp?caret=2

Posted: Fri May 25, 2007 8:07 pm Subject:

Thanks for the info guest, but I cannot agree, at least not in every case. It makes the most sense to examine the details of the particular debt before using any SOL. If the debt was contracted in one state, that is where they law applies. Courts have upheld this many times. Looking at the details is important because as someone else said, there may be a reference in the contract as to which state will be considered jurisdiction for the debt.

As for the connection, you already have a connection to the state the debt was originally incurred in--that must be a place you used to live in. Remember, a lawsuit today concerning the fdcpa does not need to be presented in a state court. So, if you are going to sue based on SOL, you can present your case in any court of competent authority, be it federal or state, and it will make no difference.

Look in section 811 of the FDCPA, it states:

Posted: Sat May 26, 2007 9:00 am Subject:

Mashumk- a written contract for Oklahoma SOL is 5 years, 3 for oral. Here is a link to the SOL periods at http://www.fair-debt-collection.com/SOL-by-State.html#37 Also if you are going to court, you need to file an answer to the court by the specific date, and must put in your answer that you believe this to be out the SOL period. A judge will not take up time to look it up, so this must be pressented in your answer to the summons. Good Luck-keep us posted..KAren

Posted: Sat May 26, 2007 9:21 pm Subject:

It is my understanding that it depends on what sort of debt it is. For example, unsecured debt (such as credit cards), the SOL of your current home state applies. Others, such as loans, mortgages, etc. the SOL of the state where they were signed applies. Skydivr is right, complaints can be filed in Federal Court. But this is far more costly.

Posted: Sun May 27, 2007 4:15 am Subject:

I just want to add to Lawstudent's advice.Sol is an affirmative defense so if one is sued and there is any question on it,go ahead and claim sol as one of your defenses in your answer to the court.Most jurisdictions have stated if it is not claimed in initial answer it can be lost.

Posted: Sun May 27, 2007 10:01 am Subject:

Yes, as I stated above, you can and should always TRY the SOL defense, but it may or may not work with credit card debt because it is generally based upon the state where you currently reside. Additionally, some states allow tolling of the SOL - meaning that if you move out of state, the SOL is suspended then starts again when you move back to the state. In other words, a state may have a 3 year SOL for credit card debt. After 2 years into the SOL you move to another state for 1 year, then move back to the original state. 3 years have gone by, but because the state allows tolling, you still have 1 year left on the SOL.

Posted: Sun May 27, 2007 5:30 pm Subject:

Heretohelp is right about some states allowing tolling of the SOL. I might also add that if indeed you are sued in another state for unsecured debt, the creditor/collector would have to go to the added expense of trying to have the judgment moved to your current state.

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