Author Topic: Need Massachusetts case law for Delaware Statute of Limitations defense  (Read 106511 times)

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coltfan1972

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #30 on: October 01, 2015 10:29:29 PM »
coltfan  (how can you not be a Patriots fan?)

Actually it is more of Broncos fan now, due to some guy named Peyton.

Can we all at least agree about this timing?

It seems like you have a reasonable amount of time to prepare.   I was only saying to ask for 30 more days because that is a routine request, is granted almost 100% of the time without even needing a reason, and I just figured more time could only help you.

It was more of a why don't you get all the time you can type of opinion.  If you think you can work within the time frames set, then go for it; they don't seem unreasonable at all.
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).

Bruno the JDB Killer

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #31 on: October 01, 2015 10:30:46 PM »
coltfan  (how can you not be a Patriots fan?),


Because he does not suffer from deflated .


As for you, Burger Boy, read 'em and weep.


Wrong as usual when you try to challenge me.   Why you keep trying is unknown, but does provide comical relief.


You write a brief for me in opposition to summary judgment when the main point of the MSJ is the FACT that the court already adjudicated the supposed material fact raised, and found it to be unavailing WITH A WARNING  to the defendant to read why. Then we'll see who is funny. I'm funny. LOL I amuse you? I'm a clown?
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

coltfan1972

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #32 on: October 01, 2015 10:40:26 PM »
I'm going to actually hold you to the law and the topic.

A MTD and a MSJ have a totally different standard of reviews by the court.   It is not uncommon whatsoever to lose a motion to dismiss and then re-litigate the arguments as part of a MSJ defense and/or cross MSJ.   It's done all the time. 

Surly you understand what I mean when I say standard of review.   It's virtually impossible to win a motion to dismiss, because the standard the court uses is the complaint is 100% factually correct and any arguments go in favor of the Plaintiff.   

In a MSJ, the law and undisputed facts are argued and the standard that the Plaintiff enjoys, of all allegations being presumed 100% correct, they no longer enjoy.   

You're arguing against every state's rule of procedure here and you have stepped in it this time.   Just move on, or continue the show.  However, I'm not going to write you any long brief or cite you case law.  I learned my lesson a few months ago when I spent a whole day citing precedent and then at the end you told me what I was saying was what you had been saying the whole time.

I'm going to actually hold you to the law and the topic.

A MTD and a MSJ have a totally different standard of reviews by the court.   It is not uncommon whatsoever to lose a motion to dismiss and then re-litigate the arguments as part of a MSJ defense and/or cross MSJ.   It's done all the time. 

Surly you understand what I mean when I say standard of review.   It's virtually impossible to win a motion to dismiss, because the standard the court uses is the complaint is 100% factually correct and any arguments go in favor of the Plaintiff.   

In a MSJ, the law and undisputed facts are argued and the standard that the Plaintiff enjoys, of all allegations being presumed 100% correct, they no longer enjoy.   

You're arguing against every state's rule of procedure here and you have stepped in it this time.   Just move on, or continue the show.  However, I'm not going to write you any long brief or cite you case law.  I learned my lesson a few months ago when I spent a whole day citing precedent and then at the end you told me what I was saying was what you had been saying the whole time.

Now, as I stated, go shine my lizards and get me some food.
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).

CleaningUp

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #33 on: October 02, 2015 12:06:52 AM »
You have two options, neither of which are great.

But first, a question.  Are you in Small Claims or District Court? The answer can be of some importance.

You can fight the MSJ or you can press for your MTC.

Frankly, with the MSJ in your face, you need to bring your A game to the hearing

You have to challenge the affidavits or provide some other reason to the court where there needs to be a trial to determine material fact.

One of those element is what contract actually applies.  BoA has removed arbitration from their contracts, but many of the past contracts had survivablity clauses that assure that arbitration was always available.

But in order to get that in play you have to provide that contract to the court as evidence.  And once you have evidence on your side that contradict evidence on theirs, there has to be a trial. 

You're going about this in the wrong way,


coltfan1972

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #34 on: October 02, 2015 01:59:21 AM »
Frankly, with the MSJ in your face, you need to bring your A game to the hearing.

All of the banter aside, who can eat the most drive-through food, or who has the most expensive shoes, this really needs to be your true focus.   

I like to kid around and sometimes getting into it with Bruno, the thread can take a turn toward trying to see who can come up with the most clever comments.   

This is one time we all need to make sure you keep your focus and make sure you understand just how important truly bringing your A game to this MSJ fight, and it will be a fight!!!
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).

deepintuit

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #35 on: October 02, 2015 02:50:07 AM »
This is District Court in Framingham MA. 

Guys, I totally get the importance of proving material facts in my favor to defeat their MSJ.   I realize on Nov 3 this is essentially a trial with short notice.   Not sure if there is enough time to fully incorporate of Discovery I requested dated 24 Sep.  Plaintiff has until about 24 Oct to respond to my Discovery.  (below)

Tomorrow I will describe each of the 5 affidavits and the flaws I see based on federal rules of evidence. 

Hopefully the flaws will also prove that Plaintiff does not prove that they have Standing. 

If I file a MSJ based on SOL, how will the judge decide the order to hear my MSJ vs Plaintiff's MSJ?

Should my MSJ also include my argument to discredit their affidavits? Or should it focus only on the prime issue- SOL?

In my Discovery, (below) I requested them to provide documents that prove they have ownership by providing the signed agreement.  Also requested they prove with documents that their case warrants using MA SOL vs DE SOL.  I was kinda when I wrote this after they asked for my driver's license and bank info without first winning the case.

ALL DOCUMENTS LISTED BELOW ARE REQUESTED:
1.   All written and signed agreements entered into by the Defendant and the Original Creditor.  For each agreement, include either the original signed and dated agreements or copies of the original signed and dated originals.  For each agreement, show the relevant account number. 

2.   For each agreement, include a copy of the CREDIT CARD AGREEMENT listing complete terms and conditions.

3.   All written documents that show any account number changes and related correspondence with the Defendant explaining the reason for the change.

4.   All written documents which prove that the account involved with this lawsuit was truly sold and completely transferred to the ownership of the Plaintiff.  This must include complete documentation by original creditor.  Documents and affidavits produced by Portfolio Recovery Associates or its attorneys will not be sufficient.  Include names and official position/titles of all personnel involved with any alleged transfer.

5.   Prove in writing showing all relevant case law that U.S. federal law and Massachusetts state law provide the means for a debt collector to sue in Massachusetts for a credit card debt while overriding the laws of the State of Delaware which govern the CREDIT CARD AGREEMENT in this case. 

6.   Specifically, prove that Delaware’s 3 year Statute of Limitations does not apply to this case.

7.   All records which show attempts, by any means, by the Plaintiff to contact the Defendant before 20 Feb 2015.  This includes mailings, certified mail, telephone calls, emails, etc.  Include dates, times of day when relevant, and method of delivery. 

8.   Any and all documents relating to the service of process including dates and delivery methods used.

9.   List all Plaintiff attorneys who have worked on this case, the dates of their involvement, their roles, and their contributions to matters in this case.  Include addresses of their offices and those who have and will appear in Court in connection with this case.

10.   All documents the Creditor intends to introduce as evidence at the trial in this action.

11.   List all potential witnesses the Plaintiff intends to have appear in Court.  END of Discovery

Obviously pro se I know.  Any fatal flaws and remedies available to me at this time?

A wise man learns from his mistakes.  A genius learns from other people's mistakes.

coltfan1972

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #36 on: October 02, 2015 03:00:42 AM »
Now I change my prior statement about the continuance.   You now must request a continuance.   I highly doubt they respond to your discovery, because they know it is so close to the MSJ hearing that they think you won't know what to do if they don't respond or respond improperly [might be true?].   

If they do respond, you are going to get absolute garbage responses coupled with numerous garbage objections.   I'd move for 90 days to allow discovery to be fully completed, prior to the hearing. 

Of course your argument will be that you need time to in essence review their discovery, not that you know it will be garbage and you will most likely need to be filing a motion to compel.

In a criminal case, 99% of the time, more time helps the defendant; and in a civil case it might not be that high of a percent, but when you are up against what you are getting ready to be up against [garbage discovery] a delay will only help you.   

They want to steam roll this through.   Assuming you don't try to derail that by pulling the arbitration option, you have to slow them down using a continuance. 

« Last Edit: October 02, 2015 03:04:54 AM by coltfan1972 »
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).

coltfan1972

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #37 on: October 02, 2015 03:02:55 AM »
I want to make a stand alone response that if you prove they have no standing, or actually they don't prove they do have standing, it's all she wrote, game over!!

I they can't establish standing, then you can take out a front page ad in the paper and announce you owe the debt, just not to them.   

Hammer them on standing; I mean whatever your idea of the nuke option is, use it to argue standing!!!
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 #38 on: October 02, 2015 03:08:37 AM »
What I am about to tell you happened to me about 11 to 10 years ago.  Its real world experience and had an attorney at the time.  Was an employment case and a suit was filed against the employer in Federal Court.   The employer's counsel filed a Motion 12 (b) 6 under the federal rules of civil procedure.  The Rule 12 motion was filed in lieu of an answer and was based upon the fact that there was an arbitration agreement and should be compelled to arbitration.

A motions hearing was held, The Judge ruled that the arbitration agreement was not valid.  The Opposing side answered the complaint, did some discovery and filed an SJ based upon the fact there was an valid arbitration agreement, case was dismissed with Prejudice.  Make a long story short first time into JAMS.

Moral of the story, you can do a lot with an SJ, not just SOL but arbitration also.

BellEbutton

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #39 on: October 02, 2015 03:13:09 AM »
Quote
4.   All written documents which prove that the account involved with this lawsuit was truly sold and completely transferred to the ownership of the Plaintiff.

As opposed to not truly sold and only partially transferred?


Quote
5.   Prove in writing showing all relevant case law that U.S. federal law and Massachusetts state law provide the means for a debt collector to sue in Massachusetts for a credit card debt while overriding the laws of the State of Delaware which govern the CREDIT CARD AGREEMENT in this case. 

Since when would they have to provide the above in discovery?   That would be the same as them asking you to provide all relevant case that proves you don't owe the balance.

Quote
6.   Specifically, prove that Delaware’s 3 year Statute of Limitations does not apply to this case.

This is discovery, not summary judgment or a trial.


trick

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #40 on: October 02, 2015 03:13:26 AM »
Read the rule for summary judgment rule 56.  Look at rule 56 (D), lays out what you need to do to get discovery.

Bruno the JDB Killer

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #41 on: October 02, 2015 12:54:23 PM »
I'm going to actually hold you to the law and the topic.

A MTD and a MSJ have a totally different standard of reviews by the court.   It is not uncommon whatsoever to lose a motion to dismiss and then re-litigate the arguments as part of a MSJ defense and/or cross MSJ.   It's done all the time. 

Surly you understand what I mean when I say standard of review.   It's virtually impossible to win a motion to dismiss, because the standard the court uses is the complaint is 100% factually correct and any arguments go in favor of the Plaintiff.   

In a MSJ, the law and undisputed facts are argued and the standard that the Plaintiff enjoys, of all allegations being presumed 100% correct, they no longer enjoy.   

You're arguing against every state's rule of procedure here and you have stepped in it this time.   Just move on, or continue the show.  However, I'm not going to write you any long brief or cite you case law.  I learned my lesson a few months ago when I spent a whole day citing precedent and then at the end you told me what I was saying was what you had been saying the whole time.

I'm going to actually hold you to the law and the topic.

A MTD and a MSJ have a totally different standard of reviews by the court.   It is not uncommon whatsoever to lose a motion to dismiss and then re-litigate the arguments as part of a MSJ defense and/or cross MSJ.   It's done all the time. 

Surly you understand what I mean when I say standard of review.   It's virtually impossible to win a motion to dismiss, because the standard the court uses is the complaint is 100% factually correct and any arguments go in favor of the Plaintiff.   

In a MSJ, the law and undisputed facts are argued and the standard that the Plaintiff enjoys, of all allegations being presumed 100% correct, they no longer enjoy.   

You're arguing against every state's rule of procedure here and you have stepped in it this time.   Just move on, or continue the show.  However, I'm not going to write you any long brief or cite you case law.  I learned my lesson a few months ago when I spent a whole day citing precedent and then at the end you told me what I was saying was what you had been saying the whole time.

Now, as I stated, go shine my lizards and get me some food.


Nice double post. Anybody should be able to win a motion to dismiss if the action is provably and obviously time barred. That is not the case here because he is attempting to apply DE's SOL which MA does NOT allow. (see the case law I cited)

He was denied the MTD based upon the law. The same law will apply if he tries to use the choice of law provision again in the same court as a defense to MSJ. The judge does not have to give you a trial just because you want one. The purpose of MSJ is to prevent trials that are not based on a true controversy. Will they read his opposition? Of course. And I would bet they will deny it.
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coltfan1972

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #42 on: October 02, 2015 01:41:45 PM »
Bruno,

Again, I'm holding you to the law and rules.  I have no interest in arguing what might happen or how the court might rule.   You're refusing to argue the law and rules of procedure and want to jump right into who would win on the merits of the argument.

AGAIN, you don't have a crystal ball, and AGAIN it is totally within the rules to lose at the MTD stage, which is incredibly difficult to win, due to the court's standard of review, and then make the argument in a MSJ where there is a different standard of review.

Argue the law and rules with me, not the merits of the arguments, which I said long ago are not applicable to your misunderstanding of the law and rules. 

Your diversion to the "well I'm still right because this is what would happen in court as to the merits" is your popular tactic when you're wrong, but does not work here.   

I don't care what the outcome MIGHT be, the OP has an absolute right to present his SOL arguments in a MTD, under one standard of review and then as a cross MSJ under another.   

Whether he should have won it or not on a MTD is irrelevant as it pertains to a MSJ.   
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).

haggard

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #43 on: October 02, 2015 02:56:56 PM »
Deep:

I agree with you that it would seem that the highlighted language:

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.

Mass. Gen. Laws ch. 260, § 9, would allow the Massachusetts court to look to the SOL where the plaintiff resides in your case.  Unfortunately the final phrase of the paragraph has already been determined by the Massachusetts courts to apply only in cases in which the plaintiff tries to take advantage of the tolling provisions contained in the first part of the paragraph.  See Wilcox v. Riverside Park Enterprises, Inc, 399 Mass. 533, 505 N.E.2d 526 (1987), and Fedder v. McClennen, 959 F. Supp. 28 (D. Mass. 1996).
I'm dumb and I don't give good advice. Ask my few friends.  They know this and I know this.  My advice should not be considered legal advice.  So (1) there's no need to tell me in this forum that I am dumb, and (2) don't take my advice without first consulting an attorney.

deepintuit

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Re: Need Massachusetts case law for Delaware Statute of Limitations defense
« Reply #44 on: October 02, 2015 03:37:15 PM »
Looking at Arbitration.  A couple questions: 

a.   Is the suggestion of raising the arbitration section of the Agreement to move this case out of lawsuit and into arbitration?  See last 3 para of page 43 for survival clause.

b.   Is there a suggestion that I should raise arbitration as a remedy that BoA could have used but instead chose to charge off the account? 

Arbitration section of Agreement is attached as a scan.  Page 43 seems most relevant.
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