What state do you use to calculate your SOL on an unpaid debt? The state where the contract was issued, or the state where you currently live? Thanks, all!
SOL Affect Newbie: An SOL is calculated from within the state of origination, where the contract (oral or written) was initially executed. It cannot be transferred without your consent; they cannot extend beyond the statutory limit, and could not be (successfully) manipulated to favor the creditor. SOLs are stagnant principles that are only changed by legislation. Keep The Faith, Anthony Villaseñor, CreditDefenses.com
Are you sure? Hi, My debts come from when I was living in NY. I moved to Texas a couple of years ago. I was wondering the same thing about SOLs so I asked one of the attorneys at prairielaw.com and his response was "... since it was a consumer debt (I am assuming), the Federal Fair Debt Collection Practices Act applies. This means they must sue you where you currently reside, or Texas. This means the Texas statute of limitations applies." I don't know who's right or wrong. Maybe the answer (for my sitution) lies within these two legal-speak sections of law I found doing some internet research. They are as follows: NY state law, section 202, titled Cause of action accruing without the state, says: An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply. TX state law, § 16.067, titled Claim Incurred Prior to Arrival in This State, says: (a) A person may not bring an action to recover a claim against a person who has moved to this state if the claim is barred by the law of limitations of the state or country from which the person came. (b) A person may not bring an action to recover money from a person who has moved to this state and who was released from its payment by the bankruptcy or insolvency laws of the state or country from which the person came. (c) A demand that is against a person who has moved to this state and was incurred prior to his arrival in this state is not barred by the law of limitations until the person has lived in this state for 12 months. This subsection does not affect the application of Subsections (a) and (b). I'm hoping Texas' SOL applies since it's 4 yrs vs New York's SOL of 6 yrs. Linda
Re: Are you sure? And, I'm hoping its origination for the opposite reason..CD...if you are right,that's great news..and in all fairness, you are the 2nd person I've heard it from..the other is not on this board but in a credit field.
Re: Are you sure? Hi NanaC, What I'm trying to say is maybe the reason why you don't normally see a finite answer to "which state's SOL applies" is because it depends on interpretation of the revelent state laws, as opposed to an overall federal guideline. For example notice there are state laws as I quoted from each of my relevent states, NY and TX. My problem is I can't figure out what they're saying because I don't speak that language. I suppose it's even possible (probable?) for the state laws to conflict with each other, making things even more complicated. Of course, I could be totally off base here. Linda
Re: Are you sure? Let me throw out another caveat. CC are considered open contracts. However, different states have different interpetaions of what constitutes an open contract. My lawyer said he has seen several people come to grief because a web site said that a particular state had a particular sol when the existing state law gave a much looser definition of open contract and how long it could be collected. Bottom line. ALways sit down with a lawyer and get a straight answer on the sol in your state if you plan to use that as a defense. Also, with cc debt, you must be sued in your state of residence.
SOLs Are Static All: Well folks Iâ??m not going to debate differing opinions (as everyone is certainly entitled to one), other than to offer the following; consumer and collection attorneys consult my practice on such matters. Consequently itâ??s very important that Iâ??m accurate, no brag just the way it is. SOLs are static in that place of origination takes precedence over current residency, a credit card account is not open (but contractual if any agreement was signed), and consulting a â??collectionsâ? specialist lawyer is a sound idea. Keep The Faith, Anthony Villaseñor, CreditDefenses.com
Re: Are you sure? I believe that the creditor has the choice of which SOL to choose when the debtor lives in or has lived in another state than that of which where the debt occurred. For example: I incurred a debt in NY. Sol in NY is 4 years. I move to Connecticut where the SOL is 6 years. If the creditor wants they can choose either state and with my understanding of this, they will more than likely choose the state with the longer SOL. Even though I incurrred the debt in NY and now live in CT. Just my understanding of the SOL. Erica
Re: Are you sure? I have posted this before and will post again. This is where my understanding comes from. What state should I use in figuring out the Statute of Limitations? According to Ron Opher, of www.ron4law.com: In my opinion, the FDCPA applies, and so the only relevant jurisdictions are where the consumer signed the loan application and where the consumer currently lives (bank location is irrelevant). If those states are different, I believe the creditor has the choice of where to sue and can select the state with the longer SOL. There may also be an argument that the contract was signed "under seal" which might lead to a longer Statute of Limitations than an ordinary contract. Erica
Yes And No Erica: Mr. Opherâ??s statement is correct to a degree, but presupposes a third-party agent is collecting the debt. Also FDCPA has no relevant restrictions as to how a collection agent, not original creditor, must proceed. Strange thing is, your prior statement is correct; a creditor may choose where to file. But if they do so in the state of current residency, certain procedures must be followed â?? those arenâ??t always considered. From here we get into some heady applications, not to mention what-if scenarios. But it suffices to say, not all creditor/collection agents proceed by the same guidelines, just as not all consumers use an adequate SOL defense. Itâ??s like thisâ?¦ If the creditor/agent can get always with it, theyâ??ll certainly try (and more often do). Keep The Faith, Anthony Villaseñor, CreditDefenses.com
More confused than ever Hello again, I wasn't interested in debating "opinion" but was merely trying to understand the facts. The only FACT is that I'm getting more and more confused! So apparently there are two sets of guidelines, one for the orginial creditor and another for a collection agency. Aren't there any concrete laws governing this stuff. (a) The creditor (and/or CA?) MUST sue you in the state you currently reside in. -or- (b) A creditor (and/or CA?) CAN CHOOSE which state to sue you in. Obviously they both can't be correct. I sure hate to think I'd have to fly to NY from TX to defend myself against a judgment. Linda
An aside to Erica Hi there, I've found some web sites post NY's SOL for revolving accounts as 4 yrs, other sites post it as 6 yrs. It's possible that listing of 4 yrs is not correct information. Linda
Differing Standards, Yes Linda: No debate of opinion as far as Iâ??m concerned, the comment was made to ward off arguments (potential or otherwise). Nonetheless, on to your concernâ?¦ Fair Debt Collection Practices Act ONLY covers third-party collection agents, and on rare (weâ??re talking hardly ever and in very limited case law) occasions an original creditor. For your benefit (and that of others) Iâ??ve provided a URL (link) to the statute below my signature line, so you may want to read 15 USC §1692a(6) â?? definitions. Most states, like California for instance. Have similar laws that pertain only to original creditors, such as California Civil Code §1788. So yes to add to your confusion (but hopefully NOT frustration), there is no definitive universal law for both original and agent creditors alike. Keep The Faith, Anthony Villasenor, CreditDefenses.com (http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#803)
Re: Differing Standards, Yes Isn't there a legal procudure where someone can't file a lawsuit in a location that would create an undue hardship? Eg: doesn't it have to be w/in 100 miles of the debtor's home? Filing in NY when she lives in TX would be creating an undue hardship wouldn't it? I read this in some court opinion.
Re: Differing Standards, Yes In one of my credit card agreements it states that, if I move, the laws applicabl change to the state where I now live. Go back and look at your agreement.
Good Call Marie! Marie: Your observation (above) is exactly what I meant in the second post of this thread, by the SOL not transferring without the consumer's consent. Naturally, if transfer terms are contractually stated such would constitute consent. So in your case (or that of specified terms) the state of residency would apply. Ahhhh, the plot thickens� But did I not mention that heady applications could apply? Keep The Faith, Anthony Villaseñor, CreditDefenses.com
Re: Good Call Marie! Howdy, Guess I need to see if I can get ahold of copies of my orginal contracts. I lost all that info a couple of years ago when I moved. Ugh. I read through that FDCPA document (thanks for the link) and sure enough see where a collection agency can file in the state of their choice. I'm hoping there's something to what you said, Maria, regarding not being allowed to cause an undue hardship. Thanks, CD, for staying with this. You sound rather cheerful. Glad someone's having fun. Linda
Original contract worthless? Guess I need to see if I can get ahold of copies of my orginal contracts. I lost all that info a couple of years ago when I moved. Ugh. CC Companies change their contracts all the time. They then send you some fine print notice, usually stuffed in the with the ads they cram in your statement. Your silence is taken to mean that you approve of the changes. So, if you find the original contract, it may not be the one they are operating under.
Re: Original contract worthles Cable666, That's interesting. I've never heard of that before. I can only go by whatever the company supplies me when I ask for a copy of my contract. Linda
