Illegal lender in Missouri Response
Date: Tue, 05/26/2009 - 08:16
In acknowledgment to the letter we received by email, on May 26, 2009, we would like to clarify the issue pertaining to the transaction you originated with our organization.
In regards to contract venue, you were required to consent to “avail yourself to Costa Rican law†which you did willingly and unsolicited. Had you not agreed to that you would not have received the advance.
Specifically, the contract states:
"GOVERNING LAW: Both this agreement and the application is considered to be executed at our offices in San Jose, Costa Rica, and this transaction and agreement with us shall be governed by, construed, and enforced solely in accordance with the internal laws of Costa Rica."
In addition, not only did you avail yourself to Costa Rican law and agreed to be governed by it, independent US case law also supports contract venue, even had you not agreed in advance to such venue, which you did. Jurisdiction over commercial activities had been proven to be based on a "sliding scale" determined by where the preponderance of activity has occurred. You are dealing with an unsolicited transaction to a Costa Rican company with servers, offices, employees, and all other important elements of the transaction taking place there, including contract venue rather than your state of Missouri, where nothing has taken place. Please refer to the case of Zippo Manufacturing Company vs. Zippo dot com, Inc. 952F Supp 1119,1124 (W.D. Pa. 1997).
Furthermore, specific contract venue law even provides more clear-cut evidence pertaining to the controlling venue for a contract. The formal validity of a contract is to be determined by the "lex loci celebrationis" which is the law of the place where a contract is made. The Hogue-Kellog principle applies that a contract is deemed to be executed where the final act is done which is necessary to make it binding. See Hogue-Kellog Co. Inc., v G.L. Webster Canning Co., Inc. 22 F3rd 384, 385 (4th Cir.1927). This transaction was not binding until reviewed and approved by MyPaydayLoan.com, once we received all information from you to make a decision to enter into the agreement. Hence, the final act to make the transaction binding was in our jurisdiction, Costa Rica, not yours.
Lastly, any comment about specific interest rate caps based on your state would not apply anyway since this was not a loan in the first place. You engaged in a check advance agreement with us, not a loan. There are important differences which are a benefit to you and should be clarified. You were charged a fee per $100 dollars advanced. Based on the fact that it is a fee and not interest there is no "accrue" element to this transaction. When you defaulted you were not charged more money based on the time the advance is still outstanding (beyond your initial late fee and NSF fee, if applicable). In addition, the second important function differentiating this transaction as a fee instead of interest is there is no compounding. Any unpaid fees under an interest scenario would have a compounding component where any unpaid charges would be included in the "interest" calculation and added to the unpaid balance for purposes of determining the total amount owed. This is an importan t difference since there is no compounding of "interest" on any unpaid balances with our transaction. As such, usury would not govern this transaction since it is a fee. This principle is no different than when your bank charges you an overdraft fee to cover a check where there are not enough funds in the account to cover the check. You were advanced funds based on your next check from your employer, so whether that was 5 days away or 20, the fee is the same. There was no interest charged and laws governing interest are not applicable.
Hopefully, instead of trying to change the rules that governed the transaction after you received your advance from us because it suits you, you will honor what you already agreed to pay whether you paid attention or not. You need to satisfy your obligation in full, in order to avoid further collection activities and penalties. Your threats have been sent to legal counsel for review, and depending on your further actions, they will determine your accountability and how they will proceed against you and your account.
Please govern yourself accordingly.
In regards to contract venue, you were required to consent to “avail yourself to Costa Rican law†which you did willingly and unsolicited. Had you not agreed to that you would not have received the advance.
Specifically, the contract states:
"GOVERNING LAW: Both this agreement and the application is considered to be executed at our offices in San Jose, Costa Rica, and this transaction and agreement with us shall be governed by, construed, and enforced solely in accordance with the internal laws of Costa Rica."
In addition, not only did you avail yourself to Costa Rican law and agreed to be governed by it, independent US case law also supports contract venue, even had you not agreed in advance to such venue, which you did. Jurisdiction over commercial activities had been proven to be based on a "sliding scale" determined by where the preponderance of activity has occurred. You are dealing with an unsolicited transaction to a Costa Rican company with servers, offices, employees, and all other important elements of the transaction taking place there, including contract venue rather than your state of Missouri, where nothing has taken place. Please refer to the case of Zippo Manufacturing Company vs. Zippo dot com, Inc. 952F Supp 1119,1124 (W.D. Pa. 1997).
Furthermore, specific contract venue law even provides more clear-cut evidence pertaining to the controlling venue for a contract. The formal validity of a contract is to be determined by the "lex loci celebrationis" which is the law of the place where a contract is made. The Hogue-Kellog principle applies that a contract is deemed to be executed where the final act is done which is necessary to make it binding. See Hogue-Kellog Co. Inc., v G.L. Webster Canning Co., Inc. 22 F3rd 384, 385 (4th Cir.1927). This transaction was not binding until reviewed and approved by MyPaydayLoan.com, once we received all information from you to make a decision to enter into the agreement. Hence, the final act to make the transaction binding was in our jurisdiction, Costa Rica, not yours.
Lastly, any comment about specific interest rate caps based on your state would not apply anyway since this was not a loan in the first place. You engaged in a check advance agreement with us, not a loan. There are important differences which are a benefit to you and should be clarified. You were charged a fee per $100 dollars advanced. Based on the fact that it is a fee and not interest there is no "accrue" element to this transaction. When you defaulted you were not charged more money based on the time the advance is still outstanding (beyond your initial late fee and NSF fee, if applicable). In addition, the second important function differentiating this transaction as a fee instead of interest is there is no compounding. Any unpaid fees under an interest scenario would have a compounding component where any unpaid charges would be included in the "interest" calculation and added to the unpaid balance for purposes of determining the total amount owed. This is an importan t difference since there is no compounding of "interest" on any unpaid balances with our transaction. As such, usury would not govern this transaction since it is a fee. This principle is no different than when your bank charges you an overdraft fee to cover a check where there are not enough funds in the account to cover the check. You were advanced funds based on your next check from your employer, so whether that was 5 days away or 20, the fee is the same. There was no interest charged and laws governing interest are not applicable.
Hopefully, instead of trying to change the rules that governed the transaction after you received your advance from us because it suits you, you will honor what you already agreed to pay whether you paid attention or not. You need to satisfy your obligation in full, in order to avoid further collection activities and penalties. Your threats have been sent to legal counsel for review, and depending on your further actions, they will determine your accountability and how they will proceed against you and your account.
Please govern yourself accordingly.
reply
so basically they are going to extradite you to costa rica?i hardly think so.tell them to POUND SAND.they can do nothing and will do nothing but threaten stupidly,or get an unlicensed CA to threaten stupidly.your state law prevails no matter what the illegal lender says.
Thank you for your encouragement. Just need a second opinion.
Thank you for your encouragement. Just need a second opinion.
Okay I am suppose to govern myself by Costa Rica law but then th
Okay I am suppose to govern myself by Costa Rica law but then they send me this:
"Keep in mind that an ACH transaction is the same as writing a bad check, and can be prosecuted under the laws of the state in which you reside."
LOL I would write back and have a bit of fun with them including
LOL I would write back and have a bit of fun with them including both statements where they said you have to abide by costa rican law and then the above about your state law and tell them they can't have it both ways and include something along the lines that they don't even seem to know what laws the are operating under!