Clarification Please on SOL

I think it depends upon the creditors to select which state laws they will use to sue the debtor. Obviously creditor will go with the state that has longer SOL. IMO, you should consult a lawyer of your state to know the details.

Here is a list of statute of limitations for all the states compiled by one of the community members-

http://forums.debtcc.com/forums/state-sol.html

Was searching around the website today and came across verification on that information. It is the credtor's choice to pick the state being the one the debt was signed in or the one you live in. It cannot be any other such as threating to make you come acrosss the country to thier location.

I actually had one tell me he was going to make me go to New York NY to appear in court. Which I now know was a fictional statement and outright false threat.

Oh well live and learn. Mistakes happen once but should not happen twice when armed with experience and knowledge. With everyone helping each other and providing information we can be prepared for anything.

Tim

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A statute of limitations is applied as a matter of civil procedure, not substantive law. That means that, even if there's a provision in a written contract that, for example, the law of South Dakota will apply to the loan (most credit cards do that because South Dakota has no limit on interest charges), that only imports South Dakota law into the case, which may be heard in Mississippi. But Mississippi civil procedure, including the statute of limitations, will still apply.

The earlier posts are correct, see the excerpt from 15 USC 1692 et seq, under the Fair Debt Collection Practices Act, the debtor may be sued either in the jurisdiction in which the debt arose (but only if there was a written contract) or in the jurisdiction in which the debtor resides when the suit is first filed (not taking into consideration the special rule for mortgages and HELOC's). This is a venue provision, not a jurisdiction provision. Venue refers to the specific court in which a case may be brought; under the laws of a state, hypothetically speaking, there may be a provision that says that only a court having jurisdiction over the person at the time the suit was filed may be brought in the courts of that state (irrespective of whether a written agreement was entered into within that state). That was the way the law was in every state in the 1800's. Now most have what's called a "long arm statute" that may subject a nonresident to jurisdiction as long as there's some objective basis for the exercise of specific jurisdiction limited to the facts of the case. If a court can get jurisdiction over the person (e.g., the person is a resident of that state), then all of the courts in that state can arguably exercise jurisdiction. But the only one in which the debt collector may lawfully bring the action is that in the county (or, in Virginia, there are independent cities not in any county, that have their own courts) in which the purported debtor resides. That's venue.

If the debtor entered into an oral (e.g., credit card application over the phone) contract in Augusta, Georgia, and then moved to Skaneateles, New York, the Georgia court may have jurisdiction as a matter of state law, but the debt collector may only lawfully bring the action in New York. Does that mean that debt collectors always behave lawfully? Of course not. People break the law all the time. If a debt collector (note that the definition of that phrase does not include creditors or attorneys whose practice is not mainly collections work) sues you in the wrong place, you can sue the debt collector where you live - that's your only remedy.

Back to statutes of limitations: The point of all that is that jurisdiction isn't the same as venue, and that the statute of limitations that applies is the one for the venue in which the suit is filed regardless of what the contract says. Another point is that most states forbid contract clauses that say that the consumer-debtor waives his right to plead the statute of limitations as a defense. But if you're in a state that allows it, and there's a written contract that says that, then you're pretty much sunk, no matter how long it's been.

Pleading the statute of limitations: note that the SOL is not a bar to a suit, it's an affirmative defense. That means that a creditor can file suit against you 20 years after the SOL has expired, and if you don't come in and file a piece of paper with the court objecting on the specific basis of the SOL, the creditor can get a judgment against you. No one else will notice the SOL, and it's not the judge's job to figure that out for you. Your assertion of your right to plead the SOL must be in writing and timely filed. You can combine other objections along with it, such as lack of personal jurisdiction, etc., but you must make that defense in writing and specifying exactly why you think the SOL precludes the suit. You snooze, you lose.


That's probably more than you wanted to know, and probably clear as mud, but if you have any other questions, feel free to make some noise about it.

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