The AnswerSleuth: Article Explaining Statute of Limitations, Venue, Jurisdiction, and Open Account

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Article Explaining Statute of Limitations, Venue, and Jurisdiction

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.

Venue and Jurisdiction

This is covered by 15 USC 1692 et seq

US Code Collection

TITLE 15 > CHAPTER 41 > SUBCHAPTER V > ? 1692i Prev | Next

? 1692i. Legal actions by debt collectors

TITLE 15 > CHAPTER 41 > SUBCHAPTER V > ? 1692i Prev | Next

? 1692i. Legal actions by debt collectors

Release date: 2005-08-01

(a) Venue

Any debt collector who brings any legal action on a debt against any consumer shall?
(1) in the case of an action to enforce an interest in real property securing the consumer?s obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or
(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity?

(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of the action.

(b) Authorization of actions

Nothing in this subchapter shall be construed to authorize the bringing of legal actions by debt collectors.

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.

Which Statute of Limitations?

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.

What Is An Open Account

Most written and oral contracts measure the time the statute of limitations period starts to run from the time the creditor first had a right to sue, i.e., upon default of the debtor. In Virginia, the applicable periods are three years for an oral agreement and five years for a written agreement. But an open account is a series of transactions billed for independently as separate items, but all under one account. It comes from the time one might go to the dry goods store and buy things "on account". The shopkeeper would have a book in which he kept track of the separate purchases and payments. So the statute of limitations for an "open account" runs from the date of the last transaction, which might be either a new item of debt (i.e., a new extension of credit) or a payment.

So if yours is the kind of debt that could be characterized as an "open account", it would be good to know what the applicable statute of limitations period is where you live, but you also have to decide whether to keep making payments, since each payment has the effect of extending the period of time in which the creditor can file suit indefinitely. That's why collectors always want you to send in a token payment "to show good faith", ten dollars or what have you. That token payment extends the S.O.L.

http://www.debtconsolidationcare.com/forums/after-defaulting.html - Filing cross claim lawsuit to answer a debt collection lawsuit, and suing the collection agency for every violation after a demand for verification of a debt.

Cross claim lawsuit may be possible for every violation of FDCPA, including being sued after Statute of Limitations has expired.

From Debt Collection

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The AnswerSleuth: Article Explaining Statute of Limitations, Venue, Jurisdiction, and Open Account

Hive Wiki is a system that allows users to freely create and edit Web page content using any Web browser. Hive Wiki supports hyperlinks and has a simple text syntax for creating new pages and crosslinks between internal pages on the fly. Go Here To Start Your No-Cost Hive Wiki Today! Home \| Edit \| Index \| Recent Changes Article Explaining Statute of Limitations, Venue, and Jurisdiction 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. Venue and Jurisdiction This is covered by 15 USC 1692 et seq US Code Collection TITLE 15 > CHAPTER 41 > SUBCHAPTER V > ? 1692i Prev \| Next ? 1692i. Legal actions by debt collectors TITLE 15 > CHAPTER 41 > SUBCHAPTER V > ? 1692i Prev \| Next ? 1692i. Legal actions by debt collectors Release date: 2005-08-01 (a) Venue Any debt collector who brings any legal action on a debt against any consumer shall? (1) in the case of an action to enforce an interest in real property securing the consumer?s obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or (2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity? (A) in which such consumer signed the contract sued upon; or (B) in which such consumer resides at the commencement of the action. (b) Authorization of actions Nothing in this subchapter shall be construed to authorize the bringing of legal actions by debt collectors. 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. Which Statute of Limitations? 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. What Is An Open Account Most written and oral contracts measure the time the statute of limitations period starts to run from the time the creditor first had a right to sue, i.e., upon default of the debtor. In Virginia, the applicable periods are three years for an oral agreement and five years for a written agreement. But an open account is a series of transactions billed for independently as separate items, but all under one account. It comes from the time one might go to the dry goods store and buy things "on account". The shopkeeper would have a book in which he kept track of the separate purchases and payments. So the statute of limitations for an "open account" runs from the date of the last transaction, which might be either a new item of debt (i.e., a new extension of credit) or a payment. So if yours is the kind of debt that could be characterized as an "open account", it would be good to know what the applicable statute of limitations period is where you live, but you also have to decide whether to keep making payments, since each payment has the effect of extending the period of time in which the creditor can file suit indefinitely. That's why collectors always want you to send in a token payment "to show good faith", ten dollars or what have you. That token payment extends the S.O.L. http://www.debtconsolidationcare.com/forums/after-defaulting.html - Filing cross claim lawsuit to answer a debt collection lawsuit, and suing the collection agency for every violation after a demand for verification of a debt. Cross claim lawsuit may be possible for every violation of FDCPA, including being sued after Statute of Limitations has expired. From Debt Collection Fresh copy to be cached until 1:07:00 PM 119 hits This Page: Edit \| History This Wiki: Home \| Related To Article_Explaining_Statute_of_Limitations,_Venue,_Jurisdiction,_and_Open_Account \| Index \| Recent Changes \| Random Page \| Search Login \| Create New Wiki \| Wiki List 11/20/2008 5:07 AM v0.61.106 ADBEFEED
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