On August 16 my mother received a demand letter from Portfolio Recovery for a Chase Bank AARP credit card. I responded with a debt validation letter on August 24 which they did not answer. (Come to find out they have been contacting her since 7/12/11 so that's why). I just looked up the terms on the Chase website and they say: 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. So, since the DOLA on her credit report is 9/17/09 and she was served 10/18/12 am I correct is using the time barred defense? I tried this once before for her on a Howard Schiff collection (Capital One) and we went to court over it because the lawyer didn't think it was valid. He ended up dismissing the debt anyway because of her age/income. Chase's governing law is more emphatic so I'm thinking this might work. Thanks in advance.
What is the SOL in question? Who is the plaintiff? Portfolio, Chase, someone else? Second, if portfolio did not respond to the validation, I would personally sue portfolio for CCA, let them raise the issue of when they claim first contact was made. If someone else is suing, it would appear Portfolio sold the account or transferred it back to Chase. If that was the case, I would file a counter-suit for "the false and misleading representation that the transfer or sale of the account subjects the consumer to actions prohibited by the act, the resumption of collection activities on an unvalidated debt." Remember, I am not a lawyer, I do not play one on TV, and this is not legal advice.
Didn't see this in time. Ended up going to court and the lawyer got her judgment. She wouldn't give a pass and the only way to avoid judgment was to stay all day and "try" the time barred defense. Lost this one but I'm pushing mom to do a chapter 7 so we can stop dealing with this crap. She has way too many medical bills to pay, never mind 6 year old debts.
Delaware has a 3YR SOL on written contracts and 4YR on open-ended. I believe a CC falls under written contracts. In that case, the time-barred defense would of prevailed here. Just curious, but why didn't you wait until you could plead your case? Was it because you were leaning toward a chap 7 anyway?
From what I understand it's up to the judge whether or not he accepts the choice of law verbiage. I had gone to court with mom previously re a Capital One account she had and the lawyer (who ended up giving her a pass) said that most judges in RI do not side with the Defendant on this. I'm not sure if that's because RI has a 10 year SOL or what. She was a basket case and would have ended up saying something she regretted if we stayed. She had already yelled at the Plantiff's lawyer. I'm trying to help so she doesn't get overwhelmed. I do plan on using the Capital One/Virginia defense for time barred debts on her next two suits which are at the interrogatories stage.
