I cannot find the user agreement for the card I am being harassed over so I'm not sure which statue applies. I did find the agreements to 3 other old cards and they all listed the same state that the payment address on the statement was in. Does anyone know if that is always true? Would it be safe to assume that was the state statue that applied? I don't want to make that claim and maybe go to court and be wrong.
Al, I don't know if this helps, but your GM card, is it through Household bank? I happen to have a Household Bank card. Mine is through the state of Nevada. Hope this helps. Let us know!
The SOL statute that applies is *your* state of residence not the corporate location. (credit to Flyingifr, who wrote) Att: Arizona! As a general rule, consumers must be sued in the State Courts of the state in which they reside at the time of the suit. Except as allowed by specific laws like Fair Credit Reporting Act or Fair Debt Collection Practices Act), suits between citizens of different states brought in Federal Court must exceed $75,000 (28 USC 1332). Below that amount, the matter is delegated to State Courts. The contract you signed may state that it will be interpreted under the laws of a certain state, or that any suit or controversy must be decided in the Courts of a certain State. If that language is present, it will be honored. If it is not, then the matter will be decided in the Defendant's state of residence at the time suit is commenced. Some states have "Long Arm" statutes, similar to Arizona's, which reads: (edited to eliminate the unnecessary provisions) 12-401. Venue No person shall be sued out of the county in which such person resides, except: 1. When a defendant or all of several defendants reside without the state or their residence is unknown, the action may be brought in the county in which the plaintiff resides. 4. Persons who have contracted a debt or obligation in one county and thereafter remove to another county may be sued in either county. 6. Persons who have contracted a debt or obligation without the state may be sued in any county in which found. 7. When there are several defendants residing in different counties, action may be brought in the county in which any of the defendants reside. This language is typical. Generally you must be sued in the county in which you reside at the time of the suit, but see #1 - this is the "Long Arm" statute, wherein the Plaintiff's County is the proper venue. Now that we have established that a suit CAN be brought, and where, now comes the question of "when". There are several sites on the Internet that list the various states' Statute of Limitations. The SOLC generally begins with each payment that is made. Each payment, whether timely or late, re-starts SOLC. This is the critical concept in understanding SOLC, because when you default, the last payment made is where SOLC is counted from. Here in Arizona SOLC generally is 4 years. If a creditor has not commenced suit within that time frame, the Statute of Limitations doe not BAR a suit, but it becomes an Affirmative Defense against the suit. Many states have provisions in their laws that suspend (or Tolls) the SOLC while the Defendant is outside the state. Arizona's is typical: "12-501. Effect of absence from state When a person against whom there is a cause of action is without the state at the time the cause of action accrues or at any time during which the action might have been maintained, such action may be brought against the person after his return to the state. The time of such person's absence shall not be counted or taken as a part of the time limited by the provisions of this chapter. " This is obviously intended to protect the creditor from someone who leaves the State to avoid paying bills but has intent to return (and in fact has not relocated, just fled). Few of us do that. Most of us move from one state to another without intention to return. Arizona has a law that addresses that event: "12-507. Action against person removing to this state No demand against a person who removes to this state, incurred prior to his removal, shall be barred by the statute of limitation until he has resided in this state one year, unless barred at the time of his removal to this state by the laws of the state or country from which he migrated." This is why I can say, generally, that the SOLC of your resident State (or your previous resident state if time-barred in that state by SOLC) is what prevails. Remember - any payment, or in some states, even a promise of payment, re-starts SOLC. Another event that may re-start SOLC is filing BANKRUPTCY. While the SOLC window to file suit in this instance is small (in Indiana it's 30 days) a DISMISSED BANKRUPTCY can, in some states, give creditors whose debts were time-barred under SOLC before filing Bankruptcy another chance to sue you. Here's a link that lists SOME states and their SOL and Extenders: http://www.ncfsi.com/statute_of_limitations.htm In the event that a creditor with an Out-of-SOLC debt files suit, it is absolutely imperative that the defendant file an Answer asserting that the action is time-barred by SOLC in that state. While I am not an attorney, I would recommend wording similar to this: AS A FIRST AFFIRMATIVE DEFENSE, Defendant denies each and every allegation made by Plaintiff in the complaint; (this is a General Denial) AS A SECOND AFFIRMATIVE DEFENSE, Defendant alleages that this action is time-barred under section XXXX of the laws of the State of XXX (obvioulsy you will have to look up the section of law for your State. Most are on the Internet.) If you do NOT do this, the creditor will probably get a Judgement against you, even though the debt is time-barred. YOU MUST RAISE THE ISSUE - they won't and the Court doesn't know. It is highly unlikely you will be able to have the Judgement vacated later on SOLC basis if you were properly served and didn't respond.
