Admin: thought this should have own thread; hope your thoughts are the same. Summary: No written application and CC Agreement states it is governed by AZ law. Attorney wrote: ORS 12.450 provides and I believe a court would find that under the circumstances, the 6 year Oregon statute of limitations would be applicable in this case. Requiring a written contract be "executed within the state" in order to provide a longer statute of limitations violates the equal protection clause of the Constitution. Isn't it strange that he moved from holding its a written agreement/contract to AZ law doesn't apply. Also, CC agreements go through expensive legal review and this legal team would be aware of such a conflict? No?
Here is the statute: UNIFORM CONFLICT OF LAWS-LIMITATIONS ACT 12.430 Claims based on law of other states; limitation period. (1) Except as provided by ORS 12.450, if a claim is substantively based: (a) Upon the law of one other state, the limitation period of that state applies; or (b) Upon the law of more than one state, the limitation period of one of those states, chosen by the law of conflict of laws of this state, applies. (2) The limitation period of this state applies to all other claims. [1987 c.536 §2] Note: See note under 12.410. 12.440 Application of statutes and rules governing conflict of laws. If the statute of limitations of another state applies to the assertion of a claim in this state, the other stateâ??s relevant statutes and other rules of law governing tolling and accrual apply in computing the limitation period, but its statutes and other rules of law governing conflict of laws do not apply. [1987 c.536 §3] Note: See note under 12.410. 12.450 When limitation period of another state not applicable. If the court determines that the limitation period of another state applicable under ORS 12.430 and 12.440 is substantially different from the limitation period of this state and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against the claim, the limitation period of this state applies. [1987 c.536 §4] Issue: He is saying the CC agreement is unconstitutional? Can I fight this?
There might be an equal protection argument, but I imagine that an Oregon court would rule at the outset to protect its citizen, and for the creditor to get into federal court on diversity jurisdiction would require a $75k amount in controversy. Equal protection is probably not spoken much in debtor/creditor situations and a court would see it as grasping at straws by the creditor (but lately courts are tending to view SOLs as substantive law rather than procedural, which could hurt the debtor in this instancel). Except for the frypan obvious, lower courts tend to look at laws on the books as presumptively constitutional ... and let an aggrieved party who thinks the law is unconstitutional take it up with the appellate court. Constitutional arguments generally don't fly there unless the press is watching too...
Interesting dilemma: The Contract states it will be interpreted under the laws of the State of Arizona but the attorney is arguing that one provision (conveniently the one which favors the author of the contract) shouldn't. Sorry, Counselor, but you can't pick and choose which provisions of the contract are to be interpreted by the laws of certain states. Pick your State and stick to it (and if you introduce the Contract as evidence, it's ARIZONA.) There is a general principle of Contract law that states that in the event of a controversy over the interpretation of a contract, it is to be interpreted AGAINST the interests of the author. They chose Arizona's laws for a reason, let them live with that choice.
Attorney: "Statutes of limitation are procedural in nature. You reside in Oregon and therefore the case must be brought here. It is my belief that an arbitrator and/or a judge will apply Oregon's six year statute pursuant to ORS 12.450." Here it is again: ORS 12.450 - When limitation period of another state not applicable. If the court determines that the limitation period of another state applicable under ORS 12.430 and 12.440 is substantially different from the limitation period of this state and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against the claim, the limitation period of this state applies. The first part could be true - "substantially different" with SOL in AZ three years and OREGON six years. The second part "and has not afforded a fair oppportunity to sue upon" may not be true. I disputed the debt with the OC twice. Initially, by regular first class mail letter but the second was USPS certified return receipt. This letter engaged the OC and to fulfill the "fair opportunity" aspect of the statute. Do I have a leg to stand on?
I misspoke when I said that the states' shift toward viewing the SOL as substantive would hurt rather than help. The attorney who says procedural is stuck in obsolete thinking that has been largely shifted away from as notions of how SOL is supposed to work have evolved. IMHO, if the contract says apply AZ law, they've bought themselves all the statutes in all the volumes, whether it helps 'em or hurts 'em.
It's unlikely that sort of possibility would be caught by a review process. And as for equal protection ... when it's your own contract you can't cry equal protection when the court applies its terms to you.
Thanks for the input. How about the dispute letters sent as fulfilling the "afford a fair opportunity to sue upon" requirement of ORS 12.450.
I think the language about a fair opportunity to sue is a hedge against the possibility of running across a ridiculously short statute someplace. 3 years is not ridiculously short. Also, when a purported debtor denies responsibility or willingness to settle, a suit can be in court the next day (or perhaps even that day). I know from personal experience. So yes, the letter could have and should have provoked an immediate lawsuit in a plaintiff that wasn't just being lackadaisical or overwhelmed with work or whatever. They could have written the contract to except from the choice of law provision those state statutes of limitation elsewhere that provide more time to sue. It would have been a provision either side could have used and hence I doubt it would have been unconscionable or otherwise unenforceable. Contracts are "private law" among individuals, and if they want to reach out and grab puzzle pieces of law from other states, then as long as they don't grab two conflicting ones at once, courts should enforce the choices made. If they grab conflicting ones, courts are required to find some rationale for choosing between them or abjuring both.
