Author Topic: Need Massachusetts case law for Delaware Statute of Limitations defense  (Read 106660 times)

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deepintuit

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I am fighting a debt collector lawsuit by Portfolio Recovery Assoc. who supposedly bought the account from Bank of America in late July 2013.   BoA charged off the account in late June 2011.   Last payment was supposedly Jan 2011.

I should note that I actually have minimal records of this account.  I took the attitude that BoA was out to me as hard as they could get away with, and I refused to pay them and perhaps foolishly either lost the statements or tossed them during a move.   Almost (if not all) all of the balance claimed is from abusive fees and interest rates.

Current status is I am trying to get my second Motion to Dismiss to succeed in Civil court after having a Motion to Dismiss denied in by a Criminal court judge who heard the motion due to no Civil judge available that day.  The judge commented that it seemed I had done a lot of research and that I should do more to understand either why he denied it, or possibly he was hinting that my case could have been stronger , perhaps giving him latitude to Dismiss.  My Motion centers of Delaware’s 3 year SOL has run.  I realize I need to prove that Delaware’s tolling statute does not apply to my case being heard in Massachusetts.

The plaintiff has filed a Motion for Summary Judgment as well.  Plaintiff lawyers have described their case as Account Stated.  Still researching what is involved with that.  They included 5 affidavits that fit the descriptions of bogus that I have read about in Peter Holland’s Defending Junk Debt Lawsuits  and Clinton Rooney’s Defense of Assigned Consumer Debt.  None look authentic.  They have meaningless and conflicting information.  All are very fuzzy and reduced photocopies.  I need to formulate a compelling argument from lots of pieces of info to discredit the Motion for Summary Judgment.

Both Motions are scheduled for Nov 3.

I am looking hard for Massachusetts case law that my local MA District Court will respect that will shore up my claim that the debt is time barred.  Also looking for help to defeat Plaintiff Summary Judgment Any help greatly appreciated.!  Hoping this post is not too long...

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Bruno the JDB Killer

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #1 on: September 30, 2015 07:52:35 PM »
I am looking hard for Massachusetts case law that my local MA District Court will respect that will shore up my claim that the debt is time barred.


Keep looking, there isn't any, because MA (I am right below you in CT) does not have a borrowing statute that applies to you. Their 6 year  SOL applies, period. There is no statute that lets you use the DE SOL. You will absolutely lose this motion.

To beat MSJ (they sensed you don't know your stuff) you need to convince the judge that there are material facts in dispute that require a trial. You need to read the rules of evidence and see where their paperwork failed.


 G. L. c. 260, Section 9, provides as follows: "If, when a cause of action hereinbefore mentioned accrues against a person, he resides out of the commonwealth, the action may be commenced within the time herein limited after he comes into the commonwealth; and if, after a cause of action has accrued, the person against whom it has accrued resides out of the commonwealth, the time of such residence shall be excluded in determining the time limited for the commencement of the action; but no action shall be brought by any person upon a cause of action which was barred by the laws of any state or country while he resided therein."


Unless you lived in Delaware, you're out of luck with that defense. Better start reading, if you keep filing frivolous motions you'll get slapped with sanctions.You are expected to know the rules when you defend yourself, just like any lawyer.
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deepintuit

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #2 on: September 30, 2015 08:55:51 PM »
Bruno,  Thanks for your quick reply.  I hear you.  A MA consumer lawyer I talked to said I should pursue the DE SOL angle.  Other states case law shows mixed success with the tolling statute argument.  Seems MA simply ignores the Credit Card Agreement when it benefits the consumer.

I find the last phrase that you highlighted but no action shall be brought by any person upon a cause of action which was barred by the laws of any state or country while he resided therein."from  G. L. c. 260, Section 9 hard to interpret.   

I suppose MA Guide to Evidence would be more effective than those federal rules discussed by Peter Holland in Defending Junk Debt Lawsuits. 

Wondering how much to refer to Delaware law in any arguments...



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trick

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #3 on: September 30, 2015 09:51:29 PM »
What the consumer attorney was talking about is a choice of law.  The contract probably states somewhere that the choice of law ill be Delaware.  look for something called Massachusetts choice-of-law rules. Massachusetts law has recognized, within reason, the right of the parties to a transaction to select the law governing their relationship. Thus, in transactions governed by the Uniform Commercial Code which bear a reasonable relation both to this State and to another jurisdiction, "the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties." G. L. c. 106, Section 1-105 (1), as appearing in St. 1957, c. 765, Section 1. We have observed that this enactment was a "legislative recognition of the wisdom of permitting parties to give added certainty to a contract by expressly stipulating reasonably the governing law." Maxwell Shapiro Woolen Co. v. Amerotron Corp., 339 Mass. 252 , 257 n.1 (1959). Quite apart from statutory guidance, this court has similarly acknowledged and given effect to the law reasonably chosen

Bruno the JDB Killer

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #4 on: September 30, 2015 09:59:09 PM »
A MA consumer lawyer I talked to said I should pursue the DE SOL angle.


This lawyer should be disbarred. He has NO clue what he is talking about, sounds like some of the ones we routinely trash in court.


Other states case law shows mixed success


More proof. Other states' case law is not binding on MA courts. It isn't even persuasive, because the SOL is procedural, not substantive.

I find the last phrase that you highlighted but no action shall be brought by any person upon a cause of action which was barred by the laws of any state or country while he resided therein."from  G. L. c. 260, Section 9 hard to interpret.   



Better learn legalese or you'll get run over by somebody who barely graduated last in his class. See this part?


while he resided therein.


Did you reside in Delaware when the SOL expired?

We will be somewhat tough on you here, don't think we're beating up on you. Better we beat up on you than some loser lawyer who couldn't win a parking ticket case. In MA, you are on the short end the minute you walk through those doors as a pro se, unless you can show a judge you know more than your opponent.


Seems MA simply ignores the Credit Card Agreement when it benefits the consumer.


Not true. The judges know the law, you do not. Here is the proof.....


The judge commented that it seemed I had done a lot of research and that I should do more to understand either why he denied it,


He gave you a heads up, and what did you do?  You filed the same motion again. Big mistake. I would suggest you file for arbitration per the credit card agreement. It can cost PRA tens of thousands of dollars, and 98% of the time they just walk away.
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Bruno the JDB Killer

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #5 on: September 30, 2015 10:00:49 PM »
What the consumer attorney was talking about is a choice of law.  The contract probably states somewhere that the choice of law ill be Delaware.  look for something called Massachusetts choice-of-law rules. Massachusetts law has recognized, within reason, the right of the parties to a transaction to select the law governing their relationship. Thus, in transactions governed by the Uniform Commercial Code which bear a reasonable relation both to this State and to another jurisdiction, "the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties." G. L. c. 106, Section 1-105 (1), as appearing in St. 1957, c. 765, Section 1. We have observed that this enactment was a "legislative recognition of the wisdom of permitting parties to give added certainty to a contract by expressly stipulating reasonably the governing law." Maxwell Shapiro Woolen Co. v. Amerotron Corp., 339 Mass. 252 , 257 n.1 (1959). Quite apart from statutory guidance, this court has similarly acknowledged and given effect to the law reasonably chosen


Sorry, the SOL is procedural in MA, not substantive. Credit card choice of law is substantive.
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trick

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #6 on: September 30, 2015 10:22:38 PM »

Sorry, the SOL is procedural in MA, not substantive. Credit card choice of law is substantive.

If your choice of law is Delaware, and its in the contract as Delaware law, then SOL of Delaware applies.  "If, however, the particular issue to which the choice-of-law clause is being applied is "one which the parties could not have resolved by an explicit provision" in the contract, the parties' choice of law should be upheld, unless (1) "the chosen State has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice," or (2) "application of the law of the chosen State would be contrary to a fundamental policy of a State which has a materially greater interest than the chosen State in the determination of the particular issue and which ... would be the state of the applicable law in the absence of an effective choice by the parties." Restatement § 187(2). See Feeney v. Dell Inc., 454 Mass. 192, 206 (2009), quoting Hodas v. Morin, supra at 550, quoting Restatement § 187(2). See also L.L. McDougal, III, R.L. Felix, & R.U. Whitten, American Conflicts Law § 137 (5th ed.2001)."  From:
Judith Ann TAYLOR & others vs. EASTERN CONNECTION OPERATING, INC.
SJC-11222. CIVIL ACTION commenced in the Mass. Superior Court Department on October 19, 2010

deepintuit

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #7 on: October 01, 2015 01:26:25 AM »

Bruno,  Re: the tough talk.  I understand the nature of this forum and I want to present a forceful case.  I am strongly considering your advice to not pursue the Motion but looking for a good angle before giving up because others have won on appealing to the judge’s logic and sense of reason.

The second Motion to Dismiss (not yet filed) would be much stronger and include refuting that the DE tolling statute applies along with case law backup from several other states (which I know most in this forum understand).  Best argument I have read is Taylor vs. Discover Bank written by Karin Troendle in CO in a district court filed Feb 11, 2011. 

Choice of Law:  Bank of America states on page 40 in paragraph entitled WHAT LAW APPLIES (in its entirety) the following:  “This agreement is made in Delaware and we extend credit to you from Delaware.  THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (without regard to its conflict of laws principles) and by any applicable federal laws.”  There is no reference to any other states elsewhere in the agreement.

Am researching trick’s suggested MA case law…
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trick

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #8 on: October 01, 2015 01:50:15 AM »
I am assuming you are going under a "fed" rule and State Rule  12 (b).  I would also state fact that their affidivits "account stated" are an admission that an arbitration agreement exists in the contract and that the law governing this case is Del.  Move for dismissal due to the SOL of Del and also because of the arbitration agreement, they have not asked for it.

deepintuit

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #9 on: October 01, 2015 02:32:28 AM »
trick..."I am assuming you are going under a "fed" rule and State Rule  12 (b)."   Not sure which fed rule and which State's Rule 12 you mean.

Best summary I have found re: DE tolling statute 8117 being invalid for my case in MA:  http://users.frii.com/cls/sum_judge_motion.pdf
« Last Edit: October 01, 2015 02:37:12 AM by deepintuit »
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trick

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #10 on: October 01, 2015 02:42:24 AM »
Mass. Rules of Civil Procedure rule 12, same as fed rule 12, lots written on it.

trick

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #11 on: October 01, 2015 02:47:50 AM »
I just read the document you put forth.  They were more concerned with the tolling of time which stops the clock. The two arguments I have put forth, 1. Arbitration agreement and 2. SOL you put into a motion to dismiss under rule 12 of Mass Civil rules of procedure. It is another bite at arbitration.

coltfan1972

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #12 on: October 01, 2015 03:52:58 AM »
The second Motion to Dismiss (not yet filed) would be much stronger and include refuting that the DE tolling statute applies along with case law backup from several other states...

Under what theory of law and/or rule of procedure is your underlying authority to have a second bite at the apple [a second motion to dismiss].   


LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

trick

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #13 on: October 01, 2015 04:09:20 AM »
Under what theory of law and/or rule of procedure is your underlying authority to have a second bite at the apple [a second motion to dismiss].

Here is an interesting memorandum and order concerning a motion to dismiss filed by an attorney who filed 4 MTD.  Worth the read, do not forget to read the footnotes.
http://www.leagle.com/decision/In%20FDCO%2020140610D63/GREENE%20v.%20BANK%20OF%20AMERICA,%20N.A.

Bruno the JDB Killer

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #14 on: October 01, 2015 01:21:10 PM »
Bruno,  Re: the tough talk.  I understand the nature of this forum and I want to present a forceful case.  I am strongly considering your advice to not pursue the Motion but looking for a good angle before giving up because others have won on appealing to the judge’s logic and sense of reason.

The second Motion to Dismiss (not yet filed) would be much stronger and include refuting that the DE tolling statute applies along with case law backup from several other states (which I know most in this forum understand). Best argument I have read is Taylor vs. Discover Bank written by Karin Troendle in CO in a district court filed Feb 11, 2011. 

Choice of Law:  Bank of America states on page 40 in paragraph entitled WHAT LAW APPLIES (in its entirety) the following:  “This agreement is made in Delaware and we extend credit to you from Delaware.  THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (without regard to its conflict of laws principles) and by any applicable federal laws.”  There is no reference to any other states elsewhere in the agreement.

Am researching trick’s suggested MA case law…


Colorado case law is worthless in MA. The borrowing statute applies to nonresidents who move into MA after a cause of action accrued against them in another state. Then, and only then, can you use the other state's SOL.

Trick's case law is not from a credit card suit. Again, SOL is procedural whereas choice of law is substantive. Unless the contract expressly invokes a different statute of limitations, MA will apply its own. From a MA case:

NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY vs. GOURDEAU CONSTRUCTION COMPANY, INC.
419 Mass. 658
November 10, 1994 - March 9, 1995
Suffolk County
Present: LIACOS, C.J., WILKINS, ABRAMS, NOLAN, & GREANEY, JJ.

"Certainly the Legislature has the right, within constitutional limits, to prescribe the answer to the statute of limitations issue. See Sun Oil Co. v. Wortman, 486 U.S. 717 (1988). See Restatement (Second) of Conflict of Laws Section 6 (1) (court should follow any statutory directive on choice of law). Massachusetts has a statutory provision under which the statute of limitations of another State will be applied or "borrowed" in certain limited situations. See G. L. c. 260, Section 9 (1992 ed.). The scope of that statute is narrow. See Wilcox v. Riverside Park Enters., Inc., 399 Mass. 533 , 539 (1987). The legislative decision to enact only a limited exception to the general common law rule is entitled to weight as a statement of the Commonwealth's policy interests."

Also:


Riverside Park Enters., Inc., 21 Mass. App. Ct. 419 (1986). This provision is so named because, in some circumstances, the clause requires application of the statute of limitations of another jurisdiction.

The plaintiffs, Connecticut residents, brought an action in Massachusetts, arising out of an accident which occurred in Massachusetts, against a Massachusetts defendant which at all relevant times has been subject to service of process in the Commonwealth. [Note 3] The issue before us is whether the borrowing clause applies in these circumstances. We conclude that the clause does not apply to an action against a defendant who at all times has been subject to service of process in the Commonwealth.
« Last Edit: October 01, 2015 01:34:39 PM by Bruno the JDB Killer »
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

 

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