Author Topic: Wisconsin SOL vs Delaware SOL and the ruling against me  (Read 9266 times)

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BellEbutton

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #15 on: January 16, 2014 10:03:10 PM »
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I understand your argument, the SOL is procedural.

Not in all courts.  Some courts apply the Restatement of Conflict of Laws.

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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.

They are not changing or cancelling the contract.  They are determining where the cause of action occurred.

Using your argument, all states, including those that don't have a borrowing statute, would be changing the contract by applying their own SOLs.   In order to not change the contract, every state would have to apply the SOL of the governing agreement. 

Why would you not say that a state without a borrowing statute is changing the contract by applying its SOL?  Why would you not say that a state with a shorter is SOL is changing the contract by apply its shorter SOL?

You have to take into consideration that some states have SOLs that are less than 6 years while some credit card companies are in states with 6 year SOLs.   If a state can't apply its own SOL to the agreement, then defendants in states with shorter SOLs could be up a creek if the creditor is in a state with a longer SOL.
« Last Edit: January 16, 2014 10:33:54 PM by BellEbutton »

Flex

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #16 on: January 16, 2014 10:31:19 PM »
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.

Delaware's Supreme Court has held that the literal application of its tolling provision "would result in the abolition of the defense of statutes of limitation in actions involving non-residents" (Hurwich v Adams, 155 A2d 591 [Del. 1959]).   Delaware's 8117 tolling statute is for Delaware residents that leave the state.

BellEbutton

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #17 on: January 16, 2014 10:48:46 PM »
Delaware's Supreme Court has held that the literal application of its tolling provision "would result in the abolition of the defense of statutes of limitation in actions involving non-residents" (Hurwich v Adams, 155 A2d 591 [Del. 1959]).   Delaware's 8117 tolling statute is for Delaware residents that leave the state.

The OR Court of Appeals referred to a different DE Supreme Court case.  Read CACV of Colorado v. Stevens to see their rationale.

Flex

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #18 on: January 16, 2014 10:55:52 PM »
The OR Court of Appeals referred to a different DE Supreme Court case.  Read CACV of Colorado v. Stevens to see their rationale.

I read it while writing my MSJ.  I wondered what they were smoking. I'm of the mindset that when in doubt, the law benefits the party that didn't write the contract.
« Last Edit: January 16, 2014 11:18:50 PM by Flex »

Never Evil

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #19 on: January 17, 2014 03:24:56 AM »
I'm getting nervous about the conflicting information. I do appreciate all who have contributed to this thread. Can I use the 893.07 statute to negate his 421.201 and beat them?
Have a nice day!

Bruno the JDB Killer

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #20 on: January 17, 2014 03:28:39 PM »
That's what you're going to have to do. You have to convince a judge that the cause of action accrued in Delaware, therefore the borrowing statute applies.

Belle is right about states that have no borrowing statute, you're just stuck with their SOL. But when they do, you should be able to use it. All I know is that many posters from WI say the same thing, it's very hard to get the court to apply it.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Bruno the JDB Killer

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #21 on: January 17, 2014 03:33:02 PM »
Why would you not say that a state without a borrowing statute is changing the contract by applying its SOL?  Why would you not say that a state with a shorter is SOL is changing the contract by apply its shorter SOL?


I would not make that argument. No borrowing statute means you're stuck with whatever the SOL is, whether it benefits you or not. My point here is that WI does have one, but they don't seem to want to let anybody use it. By applying the choice of law and the language in the contract, you establish that the injury occurred in DE, which should trigger the borrowing statute.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

trueq

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #22 on: January 17, 2014 06:24:05 PM »
WI courts, through bitter experience, IGNORE the borrowing statute when it comes to credit card contracts even though the credit card contracts express foreign law application.

Get it to arbitration!

Arbitration, IT IS DIFFICULT FOR CREDITOR TO ARGUE AGAINST CHOICE OF LAW IN CONTRACT IF YOU AGREE!   (If they do, its fraud).

I've gotten DE law, and its SOL, applied in arbitration.

Arguing for shorter foreign borrowing SOL in WI is an uphill game.

Assume 6 year WI SOL on credit cards in WI courts.

In arbitration, you may be able to get it down to 3 yers on a foreign borrow.    (which is good advice for anyone in a state like WI with a longer SOL and no shorter borrowing case law.)
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

BellEbutton

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #23 on: January 17, 2014 10:48:32 PM »
WI courts, through bitter experience, IGNORE the borrowing statute when it comes to credit card contracts even though the credit card contracts express foreign law application.

I know that you feel that your court's are ignoring the borrowing statute.  But they're not. 

It's based upon the location of the cause of action.  If your courts have determined that certain causes of action occur within your state, then that's why they apply the WI SOL.

trueq

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #24 on: January 18, 2014 12:33:46 AM »
The courts IGNORE borrowing statute for credit card contracts.

Creditors have been using the Wisconsin Consumer Act as a sword on this.    The WCA is not meant to be a sword for the creditor by hiding behind longer SOL.    My lawyer thinks, as a result of our case, all credit card contracts are purposeful fraud under WCA unless they denote WI law applies to WI residents.

The Courts across the nation are conflicted on whether cause of action for credit card breach is where cosumer fails to make payment, or where harm is felt (or payment is not received).

Cases are all over the place.

I was not implying borrowing statute is dead across the board, it is just ignored for credit card contracts.

WI has chosen the former...which is absurd since the contracts clearly say credit is extended in the choice of law state.

My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

Never Evil

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #25 on: January 18, 2014 06:44:20 AM »
Great news, at least in my opinion, I did a lot of researching on this site ( thank you all who have discussed and posted links on this board) and I will be filing the appeal on Monday to my judgement and will have the case heard de novo. It will be on the basis that the contract is unconsciousable and there was no meeting of the minds. This is in part to the Delaware 3 year sol, but wisconsin not recognizing that contractual statute. I will be talking with an attorney on Monday to make sure I'm heading down the correct path. I'm sure with a little more research I can really zip this case up in my favor and then proceed with FDCPA violation claims and WI CPA violations.

Thanks to all, I shall update as I proceed.
Have a nice day!

Bruno the JDB Killer

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #26 on: January 18, 2014 03:02:02 PM »
I would lose the unconscionable argument. They will argue that if you thought the agreement was unfair, you should have cancelled the account. Instead, you used it, which means that you agreed to the terms you now want to call unconscionable.

Your argument is with the judge, not the credit card agreement. The agreement is what you are relying upon to win your argument. Don't contradict yourself by blaming the contract for the judge's refusal to allow you to apply it to the SOL.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

kickinanscreamin

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #27 on: January 18, 2014 07:08:05 PM »
I agree with Bruno.  The "unconscionable" argument is one that is difficult to win.  "Unconscionable" means that it is so bad as to shock the sensibilities.   Whose sensibilities? The judge's.  It has to be quite bad to shock the sensibilities of the judge.  I do not think your agreement can rise to that level, especially since the same agreements have been used for years with millions of people, without objection.

BellEbutton

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #28 on: January 19, 2014 01:55:27 AM »
The courts IGNORE borrowing statute for credit card contracts.

Creditors have been using the Wisconsin Consumer Act as a sword on this.    The WCA is not meant to be a sword for the creditor by hiding behind longer SOL.    My lawyer thinks, as a result of our case, all credit card contracts are purposeful fraud under WCA unless they denote WI law applies to WI residents.

The Courts across the nation are conflicted on whether cause of action for credit card breach is where cosumer fails to make payment, or where harm is felt (or payment is not received).

Cases are all over the place.

I was not implying borrowing statute is dead across the board, it is just ignored for credit card contracts.

WI has chosen the former...which is absurd since the contracts clearly say credit is extended in the choice of law state.

Does your borrowing statute say that the cause of action must have occurred elsewhere?  If so, then it all depends on where your courts consider a default to have occurred.

In the instance that they have determined that the cause of action occurs in WI because the failure to pay occurred in your state, then they are not ignoring the choice of law.


BrokeBob

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Re: Wisconsin SOL vs Delaware SOL and the ruling against me
« Reply #29 on: January 19, 2014 03:53:12 AM »
Part of one's appeal strategy depends on which district one is in.

For example, if you are in the 2nd appellate district, this would be very tough to pull off. 

 

credit