Author Topic: Looking for case laws  (Read 3079 times)

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Never Evil

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Looking for case laws
« on: June 06, 2015 05:54:36 AM »
Hey guys and gals. My brain is fried and my fingers are being dumb. I am looking for 9th circuit case laws that are consumer friendly with sol (Nevada) that have 4 year sol. I did a search for them in case law section and  state law section but came up empty.

Just need to drive home that NRS 11.190 2a is what is considered a credit card.  A plain reading suggests the law is sufficient enough, but I have my doubts.

Thank you DB'ers that contribute to the discussion.
Have a nice day!

kevinmanheim

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Re: Looking for case laws
« Reply #1 on: June 06, 2015 12:44:27 PM »
NRS 97A.060 defines a CC account as an open account. Use that statute to support your claim.

Quote
NRS 97A.060 -- “Credit card account” means an open line of credit offered by an issuer to a cardholder which is accessed by obtaining money, property, goods, services or anything of value by the use of a credit card.
http://www.leg.state.nv.us/NRS/NRS-097A.html#NRS097ASec060

If your opponent is trying to claim that the account is a written contract, ask them to provide a copy of the contract you signed that details all the terms and conditions of the account. They can't.

Also cite Regulation Z in the TILA. It defines a CC account as an open account.

Reg Z --
Quote
(20) Open-end credit means consumer credit extended by a creditor under a plan in which:

(i) The creditor reasonably contemplates repeated transactions;
(ii) The creditor may impose a finance charge from time to time on an outstanding unpaid balance; and

(iii) The amount of credit that may be extended to the consumer during the term of the plan (up to any limit set by the creditor) is generally made available to the extent that any outstanding balance is repaid.

 
« Last Edit: June 06, 2015 12:51:52 PM by kevinmanheim »

BellEbutton

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Re: Looking for case laws
« Reply #2 on: June 06, 2015 04:49:50 PM »
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« Last Edit: June 06, 2015 05:40:22 PM by BellEbutton »

Never Evil

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Re: Looking for case laws
« Reply #3 on: June 06, 2015 05:37:28 PM »
Awesome sauce Kevin. Seems like a legit and straight forward argument.
Have a nice day!

BellEbutton

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Re: Looking for case laws
« Reply #4 on: June 06, 2015 05:41:03 PM »
Check out Chapter 97A of the NV statutes entitled Debt Evidenced by Credit Card.

NRS 97A.050  “Credit card” defined.  “Credit card” means any instrument or device, whether known as a credit card, credit plate, or by any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, property, goods, services or anything else of value on credit.

Try to tie that in to 11.190.   

I wouldn't bother with requesting a copy of a signed contract if the other party tries applying the 6-year SOL.  A signed contract usually falls under the Statute of Frauds.  Unless your Statute of Frauds specifies credit card accounts, you wouldn't be able to use the SOF as a defense.  Also, you have NV statute 97A.160.

  NRS 97A.160  Records required in action to collect debt: Establishment of liability and amount; authentication; retention.

1.  Notwithstanding the provisions of chapter 52 of NRS, in any action brought to collect a debt owed to an issuer:

      (a) The issuer may establish that the cardholder is contractually liable for the debt owed by submitting the written application for a credit card account submitted to the issuer by the cardholder or evidence that the cardholder incurred charges on the account and made payments thereon.


Since a signature is not required to prove a credit card debt, it won't be required to prove the SOL.  I would argue that since a written contract is not required to prove a credit card debt, then a credit card cannot be considered a contract to be founded on an instrument in writing.  It would be a contract NOT founded on an instrument in writing.

Bruno the JDB Killer

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Re: Looking for case laws
« Reply #5 on: June 06, 2015 06:14:44 PM »
Any of a number of different statutes of limitations can apply in different collection scenarios. The Nevada statute of limitations on open accounts is four years. NRS 11.190(2)(a). Written contracts, however, are subject to a statute of limitations of six years. NRS 11.190(1)(b). Credit card accounts typically qualify as open accounts, but when backed up by a written application/agreement, or the position that signing the back of the card indicates agreement to the terms and conditions, then the six-year statute may be applicable. Obviously, a certain ambiguity exists as to which statute of limitations applies. Nevada courts will generally follow the 9th Circuit ruling that “if a substantial question exists about which of two conflicting statutes of limitations to apply, the court should apply the longer as a matter of policy,” so a credit card account founded upon a written agreement should qualify for a six-year statute. Marshall v. Kleppe,  (9th Cir. 1980)
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

cracrap

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Re: Looking for case laws
« Reply #6 on: June 06, 2015 07:06:04 PM »
Nevada applies a shorter sol if there is a choice of law provision in the cardmember agreement. If there is a Delaware choice of law provision then the sol is 3 yrs.

See e.g. Izquierdo v. EASY LOANS CORP., Dist. Court, D. Nevada 2014
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Never Evil

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Re: Looking for case laws
« Reply #7 on: June 06, 2015 08:32:16 PM »
Cracrap, that is an interesting read. I will ear mark that one.

Bruno - I've been running through this board up and down. My only analogy would be comparing a lion to a house cat. Both are felines, nocturnal predators, and agile. That is where the similarities would end.  The lion (aka 6yr written agreement) is a wild animal, roars, and lives in a pride, but has poor skills to interact with a human.  The house cat (aka 4 yr open account) is domesticated, meows, and is generally a solitary animal with social skills to interact with humans. 

No matter how much you try to set a house cat free, it can never roar and travel in a pride. Just like a lion can never be considered a house cat as it will never meow. Long and short, the house cat can never be a lion, even though they have the same family.

Have a nice day!

Bruno the JDB Killer

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Re: Looking for case laws
« Reply #8 on: June 06, 2015 10:09:24 PM »
Nevada applies a shorter sol if there is a choice of law provision in the cardmember agreement. If there is a Delaware choice of law provision then the sol is 3 yrs.

See e.g. Izquierdo v. EASY LOANS CORP., Dist. Court, D. Nevada 2014

the court should apply the longer as a matter of policy,”


That is the 9th Circuit. that trumps District court. The statue is vague, aren't they all.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

heartlipids

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Re: Looking for case laws
« Reply #9 on: June 06, 2015 10:42:56 PM »
Look at the definitions of Nevadas UCC, in Section 9 (NRS 104.9102).  They define an "instrument" as something other than a credit card.  Some attorneys will argue that the secured transaction section of the UCC doesn't apply; however, once the OC packages & sells the accounts, they then fall under the UCC (NRS 104.9109 ---- "Sale of accounts")

In contract formation there must be identified parties, mutual assent, obligation/terms, consideration & legality.  A credit card agreement only identifies a single party (the OC), and often times do not contain any of the specific terms (i.e. interest, fees, penalties etc...).  Simply put, for a "written instrument" to qualify for the six year SOL, the obligation must arise from the contract (written instrument) immediately.  This is typically found in promissory notes, leases etc...

It is not ambiguous, if you break down each step and argue accordingly.

- Sued for breach of contract
-->> Does the card agreement contain all elements of a contract?  The answer is no.  They would have to rely on inadmissible parol evidence to show the obligation (i.e. card statements)
-->> Then, by definition the card agreement cannot be a "written instrument" falling under the 6 yr SOL.

Read the following case, although it is slightly different, the argument holds in your instance.  Portfolio Acquisitions, LLC v. Feltman, 909 NE 2d 876 - Ill: Appellate Court, 1st Dist., 3rd Div. 2009

https://scholar.google.com/scholar_case?case=18054658369523130311&q=portfolio+acquisitions,l.l.c.+v.+feltman&hl=en&as_sdt=20006

cracrap

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Re: Looking for case laws
« Reply #10 on: June 06, 2015 11:43:31 PM »
the court should apply the longer as a matter of policy,”


That is the 9th Circuit. that trumps District court. The statue is vague, aren't they all.
Do you even know what you are talking about ?

Rather than cherry-picking a quote that is wholly inapplicable to the instant matter ?

The 9th found that under a choice of law provision, CA had 2 statute of limitations that could be applied to a constitutional cause of action, an action which is not founded on statute or common law,and thus applied the longer of the two.

In Izquierdo, the court applied Nevada's borrowing statute applicable to a common law breach cause of action.
say nope to dope...ugghh to drugs...and God bless Ronald Reagan!!!


Quote from: smurfy

this really is not a spectator sport ... you have to know what your doing ... or you will get in very hot water very quickly

Never Evil

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Re: Looking for case laws
« Reply #11 on: June 07, 2015 04:10:21 PM »
Heartlipids- that would almost be the perfect case law, if it were in the correct district. I'm not sure if I can stretch an Illinois case to Nevada. I do appreciate you finding that one.
Have a nice day!

heartlipids

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Re: Looking for case laws
« Reply #12 on: June 07, 2015 06:05:17 PM »
Heartlipids- that would almost be the perfect case law, if it were in the correct district. I'm not sure if I can stretch an Illinois case to Nevada. I do appreciate you finding that one.

The UCC definitions will work in your case.  I posted the feltman case to help base your argument.  The case is not binding in your district; however, it can be used to show that credit card agreements are not "instruments in writing" (written contract) without relying on inadmissible parol evidence.  Look through the cited cases as well.

In other words, in order for a credit agreement to fall under the 6 yr SOL definition of an "instrument in writing", they must have all elements of a contract shown within all-four-corners of the document.  It must also show the obligation arising directly and immediately from the instrument itself. 

The majority of resources will show that a credit card is an Open Account.  The UCC states this, and explicitly removes credit cards from the definition of "instrument".  Regulation Z (5.   15 USC 1602(j) ) defines credit cards as an Open Account, as does the Nevada Code (NRS 97A.060  “Credit card account” defined.  “Credit card account” means an open line of credit offered by an issuer to a cardholder which is accessed by obtaining money, property, goods, services or anything of value by the use of a credit card.)

BellEbutton

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Re: Looking for case laws
« Reply #13 on: June 07, 2015 06:16:34 PM »
If your agreement has a DE choice of law provision, this is from the NV Supreme Court

Because Nevada has long recognized a public "interest in protecting the freedom of persons to contract," Hansen v. Edwards, 83 Nev. 189, 192, 426 P.2d 792, 793 (1967), we join these jurisdictions and hold that a party may contractually agree to a limitations period shorter than that provided by statute as long as there exists no statute to the contrary and the shortened period is reasonable, and subject to normal defenses including unconscionability and violation of public policy. See generally Rivero v. Rivero, 125 Nev. 410, 429, 216 P.3d 213, 226 (2009) ("Parties are free to contract, and the courts will enforce their contracts if they are not unconscionable, illegal, or in violation of public policy."). Holcomb Condo. Homeowners' Ass'n, Inc. v. Stewart Venture, 300 P.3d 124, 128 (Nev. 2013).

Bruno the JDB Killer

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Re: Looking for case laws
« Reply #14 on: June 07, 2015 08:41:23 PM »
Do you even know what you are talking about ?


Yup. He asked for case law from the ninth circuit about the SOL. I posted a case. As you well know, case law does not have to address the exact circumstances of a particular case, only the theory or statutorial argument involved. You'll likely never find a case addressing the exact situation with the exact same parties. Courts rule in general theories. Don't like it? Too bad, go argue with the 9th circuit.

The SOL is vague in Nevada as in several states. Depends on what judge you get. Personally, I favor the 4 year SOL but since he asked for it, I gave him a 9th circuit case that raises a different position, he should be aware of it in case they cite it against him. The borrowing statute may solve this.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.