Author Topic: Wisconsin SOL vs Delaware SOL and the ruling against me  (Read 9267 times)

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Never Evil

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Wisconsin SOL vs Delaware SOL and the ruling against me
« on: January 15, 2014 09:42:29 PM »
The basis of the lawsuit was brought on by .... yup Midland Funding LLC. I had a Juniper Barclay's Bank, Delaware, credit card (open ended credit) and charge off date was June 29 2009. With Barclays own terms and conditions, I fought the case on the basis that the agreement was because it was beyond the statute of limitations because Barclay's Bank Delaware has a 3 year statute of limitations. Delaware law statute 8106 for collections of past due amounts. I wrote up a dispositive motion citing in the agreement in the terms and condition in part "the laws of the state of Delaware shall apply"

The lawyer (Kohn Law Firm) then pulled out Wisconsin state statue 421.201 subsection 10, stating when a resident of this state enters into a contract, even in another state, the laws of Wisconsin apply. The judge then threw out my motion about statute of limitations. After deflating the air out of my balloon, the lawyer walked all over me and won the hearing/trial.

I have until Wednesday Jan 22 to file for an appeal and scrambling to find an attorney that will represent me without caving to Kohn or Midland. After the court ruled that I dont have choice of law, and that Midland is not honoring the contract, I want to take the direction of the Coady case and say its an unconscionable contract where there was no meeting of the minds.

Any discussions or clues to further my case will be greatly appreciated. For the record, long time lurker, first time poster. Thank you.
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Never Evil

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #1 on: January 15, 2014 09:54:13 PM »
My apologies for posting in the wrong section, may I get an admin to move it to the correct section?
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Bruno the JDB Killer

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #2 on: January 15, 2014 09:54:47 PM »
You argued against procedural law with substantive law, which is why you lost. See this:

WISCONSIN   893.07 Application of foreign statutes

of limitation.
(1) If an action is brought in this state on a foreign cause

of action and the foreign period of limitation which

applies has expired, no action may be maintained in this

state.
(2) If an action is brought in this state on a foreign cause

of action and the foreign period of limitation which

applies to that action has not expired, but the applicable

Wisconsin period of limitation has expired, no action

may be maintained in this state.


See our poster TrueQ, I believe he is from your state. According to him, WI judges could care less about the SOL law. You have a hard way to go with this.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Never Evil

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #3 on: January 15, 2014 10:14:34 PM »
Thank you Bruno, I have two more cases on the dockets, but I want to focus on this one first since it has the shortest window of me fighting it.

The other two are Midland Funding suing on an HSBC card via Rausch law firm, and a different HSBC card by Dobberstein  law firm on behalf of Duke Capitol.

The ones that are current, I will need to file a motion to compel evidence because I think my window to demand arbitration may have passed.
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Bruno the JDB Killer

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #4 on: January 15, 2014 10:21:31 PM »
There is no such motion. You follow the rules of procedure concerning discovery. They are on line. We may seem a bit curt with you, but that is designed to force you to learn. After all, you are the one that will eventually have to stand in front of a judge and make your case. If you follow what we tell you, you'll do fine. We'll tell you what to do, but we can't do it for you. The degree of success you achieve is proportionate to the amount of time you can devote to this.

We have posters here that have made these people sorry they ever thought of bringing suit. That's just the way it is.
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Never Evil

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #5 on: January 15, 2014 10:31:34 PM »
I do want to learn. Since I'm fairly new to the whole court procedures, I just need to know the order of what I need to present when. I have no problem doing the leg work, just need a direction to run with the ball.
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Bruno the JDB Killer

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #6 on: January 15, 2014 10:38:10 PM »
https://docs.legis.wisconsin.gov/statutes/statutes/800


This is where you start. These are the rules of civil procedure. They go in order of the case, start to finish. read one section at a time, don't try to digest the whole thing at once. When you get to the point where you need case law, use Google Scholar. Samples of any motion you may need to file are on line. Again, I refer you to TrueQ's posts. He's your best resource.
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BellEbutton

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #7 on: January 15, 2014 10:52:08 PM »

See our poster TrueQ, I believe he is from your state. According to him, WI judges could care less about the SOL law. You have a hard way to go with this.

I have to disagree with your statement that WI judges could care less about the SOL law.

"On a foreign cause of action" means that the cause of action accrued in another state. 

An original creditor or JDB will argue that the cause of action accrued in Wisconsin because that's where the defendant resides, where the defendant opened the account, and from where he made the payments. 

The defendant would have to show that the cause of action accrued in the credit card company's state of incorporation when that company did not get a payment in their state.

It all depends in which state courts have ruled  that a default has occurred.






Never Evil

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #8 on: January 16, 2014 12:25:27 AM »
Searching for, when the ability to invoke the arbitration is no longer an option is not clear to me. Do I need to invoke it prior to offering a defense, or is it still on the table after I ask them for the proofs such as the terms and conditions applicable prior to default? I like the idea of introducing a JAMS arbitration, but when do I file for it and when do I present it during appearances? Does it expire when it goes to trial or after a judgment or during appeals?

The reason I ask this, is I'm trying to compel the plaintiff to provide the terms and conditions because I did not retain my original. I know there's a link from Teh 402 blogspot with agreements that apply to my cases since all have defaulted prior to 2010. I think getting the ones off the blog spot would be beneficial to help on my end and go in swinging, provided time hasnt expired for asking for an arbitration.
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Just Plain Bill

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #9 on: January 16, 2014 01:03:36 AM »
Why arn't you attacking Midland's standing to sue via their documentation?
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LUEser

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #10 on: January 16, 2014 01:37:30 AM »
Agreeing with Just Plain Bill here, usually attacking the chain of custody and getting them to show or deny to show the forward flow agreement and bill of sale is where the JDB ends up not being able to authenticate the amount, thus not having evidence to continue its case.

Search for the topic titled something like "THE JDB's Achilles Heel in Court"
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Never Evil

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #11 on: January 16, 2014 04:51:13 AM »
The documents they submitted are the online application, bill of sale (redacted), affidavit of sale, a few billing statements from OC and "notice" of assignment that they will now attempt to collect.

I did my best to hold them to their proofs, and there was enough on the table for the judge to rule in their favor of preponderance. Again I think 893.07 is my best way to kill this and sue them. They change the scope of the contract to a venue issue successfully, although it should have affected the case.
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Bruno the JDB Killer

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #12 on: January 16, 2014 02:55:32 PM »
"On a foreign cause of action" means that the cause of action accrued in another state. 

That's the argument he will have to make. That's where the OC's contract comes back to bite them. They usually state that the laws of Delaware will apply to this agreement regardless of where you live. They are in Delaware, the contract was formed in Delaware, (according to them) and payments go to Delaware; eventually, anyway. In my book, that adds up to the injury occurring in Delaware.

According to TrueQ, judges just ignore all this.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #13 on: January 16, 2014 08:50:50 PM »
"On a foreign cause of action" means that the cause of action accrued in another state. 

That's the argument he will have to make. That's where the OC's contract comes back to bite them. They usually state that the laws of Delaware will apply to this agreement regardless of where you live. They are in Delaware, the contract was formed in Delaware, (according to them) and payments go to Delaware; eventually, anyway. In my book, that adds up to the injury occurring in Delaware.

According to TrueQ, judges just ignore all this.

You're not taking into account substantive and procedural law.  If a state has determined that the SOL is procedural, then the courts in that state will apply the forum's SOL.   It has nothing to do with judges ignoring contracts.

You also have to consider the fact that DE has a tolling statute.  If a defendant is not available to be served in DE, the SOL is tolled.   If you're going to insist that DE law applies across the board, courts can take that tolling statute into consideration.

A CA court in Resurgence Financial v. Chambers determined that DE's tolling statute did not apply to the defendant because the defendant never lived in DE.   The court said would be unfair to the defendant to indefinitely toll the SOL.

The Oregon Court of Appeals disagreed.  In CACV of Colorado v. Stevens, the defendant cited the Resurgence case to support his contention that CACV's claim was outside the SOL because the OC resided in DE.  The Court of Appeals ruled that the tolling statute did apply to the debt even though Stevens had never lived in DE.   They based their ruling on a DE Supreme Court case.  So the court applied the 6 year OR SOL.


Bruno the JDB Killer

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #14 on: January 16, 2014 09:40:45 PM »
You're not taking into account substantive and procedural law.


I think I did. Every point in my argument goes towards the contract, which is substantive and was written by the creditor, who insists that ALL the laws of Delaware should apply. Except the ones they don't like, of course, like the SOL. Let them show how the cause of  action accrued in Wisconsin when everything in the cardholder agreement says everything happens as if you are in Delaware.

My argument is that the injury occurred in Delaware, unless these chooches have an office in Wisconsin that issues credit cards. They don't. OOPS. Or do they have an office in Wisconsin that accepts payments? OOPS no. I understand your argument, the SOL is procedural. Unless you can make the case that the cause of action accrued in another state, then the borrowing statute applies. Otherwise, why have one.

The lawyer (Kohn Law Firm) then pulled out Wisconsin state statue 421.201 subsection 10, stating when a resident of this state enters into a contract, even in another state, the laws of Wisconsin apply.

Another one I would like to take on in court. Where does a state get the right to arbitrarily cancel a contract made between two parties who have expressed and agreed to a choice of law? I think the court exceeds it legal authority in this case.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.