Author Topic: SOL of original State is different than the state I now live in  (Read 1794 times)

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KickingIt

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I signed a contract in a state that had a SOL of 6 years on a proimissary note (Heloc).  Now I live in a state (California) that has a 4 year SOL.  The contract has now hit four years.  Should I tell the credit collector to leave me alone.

At first I thought I would be under the SOL where the contract was signed, but after thinking about it I am wondering how the California county court house judge could be responsible  for knowing the rules of contracts of another state.  Wouldn't they have to use California rules to include the 4 year SOL.   

excelsior

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Re: SOL of original State is different than the state I now live in
« Reply #1 on: June 22, 2011 06:09:30 PM »
What is the date of last activity on the alleged account?

KickingIt

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Re: SOL of original State is different than the state I now live in
« Reply #2 on: June 22, 2011 07:29:05 PM »
May 2007 was last payment

gaconsumer

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Re: SOL of original State is different than the state I now live in
« Reply #3 on: June 22, 2011 08:21:17 PM »
They can probably sue you in the jurisdiction where the contract was signed.

KickingIt

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Re: SOL of original State is different than the state I now live in
« Reply #4 on: June 22, 2011 08:38:43 PM »
I don'tt think that is right.  They still have to provide "proper venue."  A creditor or collector has to sue you in the state you live in.  They can't put undue pressure by expecting you to fly back and forth to your old state  for hearings. 

CleaningUp

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Re: SOL of original State is different than the state I now live in
« Reply #5 on: June 22, 2011 09:20:29 PM »

Like it or not, contract law says that you can be sued in the jurisdiction in which you live OR the jurisdiction in which the contract was initiated.

You are not precluded, however, from arguing that the state in which they are suing does not have personal jurisdiction over you.

You may win; you may lose.


Flyingifr

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Re: SOL of original State is different than the state I now live in
« Reply #6 on: June 23, 2011 01:58:53 AM »
Like it or not, contract law says that you can be sued in the jurisdiction in which you live OR the jurisdiction in which the contract was initiated.

You are not precluded, however, from arguing that the state in which they are suing does not have personal jurisdiction over you.

You may win; you may lose.

This provision is usually reserved for two classes of debts - those involving Real Estate (which cannot move from jurisdiction to jurisdiction and has a Chain of Title attached to it in that jurisdiction regardless of the location of the owners) and Student Loans, which are usually sueable in the State Capitol where the loan was disbursed, just to make it easier for the Loan Guarantor.

It is true that FDCPA does give the creditor the option of suing in either the debtor's present location or where the debt was incurred, but also read "Flyingifr on Venue" in the Flyingifr Method - you canot be sued ina  jurisdiction that does not have actual Personal Jurisdiction over you. Even suit in the jurisdiction where the transaction took place presents problems with Service of Process.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

KickingIt

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Re: SOL of original State is different than the state I now live in
« Reply #7 on: June 23, 2011 02:54:23 AM »
Thanks FlyingIFR.  From what I understand from your statement is that the HELOC loan would have to sue me in the state that I now live in, because of venue, service of process, and the fact that the previous state doesn't have jurisdiction over me.  Is that correct. 

I will need to get a lawyer, but it sounds like I can use the SOL in the state that I now live in. 

If I misunderstood you please let me know.  Thanks. 

KickingIt

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Re: SOL of original State is different than the state I now live in
« Reply #8 on: June 23, 2011 03:05:47 AM »
FlyingIFR after reading your statement again it sounds that if it is a real estate claim they would have to sue you in the state that you lived in when the contract was signed.  I guess my question is a HELOC considered real estate since it is a loan that is tied to you, and not the property?

excelsior

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Re: SOL of original State is different than the state I now live in
« Reply #9 on: June 23, 2011 03:17:36 AM »
How much is the alleged HELOC debt roughly?  20K ish?  100K ish?  more?

Do you have reason to believe the collector will sue?

From what you suggest--in 23 months you'll hit the 6 year SOL??

Is it feasible to avoid summons/suit until then?

KickingIt

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Re: SOL of original State is different than the state I now live in
« Reply #10 on: June 23, 2011 03:30:03 AM »
100k ish.  I don't think I have enough assets for them to  initiate a suit, but you never know.

Flyingifr

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Re: SOL of original State is different than the state I now live in
« Reply #11 on: June 23, 2011 10:25:39 AM »
100k ish.  I don't think I have enough assets for them to  initiate a suit, but you never know.

Whether you have assets or not, 100K owed is usually enough for them to file a suit over.

HELOC - "Home Equity Line of Credit" usually means a lien was filed, which means real estate. Do you still owe it? If not due to foreclosure then it is unsecured.

You also need to re-read the Contract for the HELOC. Does it have a "Choice of Law" provision? (This contract will be intepreted and governed by the laws of the State of XX)
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

KickingIt

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Re: SOL of original State is different than the state I now live in
« Reply #12 on: June 23, 2011 03:28:03 PM »
I do not own the house anymore. 

KickingIt

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Re: SOL of original State is different than the state I now live in
« Reply #13 on: June 23, 2011 03:29:36 PM »
I have read the contract three times, and have not seen Choice of Law" provision anywhere in the contract. 

gaconsumer

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Re: SOL of original State is different than the state I now live in
« Reply #14 on: June 23, 2011 04:32:45 PM »
Personal Jurisdiction has a federal and state component.  The federal component (due process) deals with things like whether you have mimimum contacts with the forum, whether the execercise of jurisdiction comports with traditional notions of fair play and substantial justice, and where you have purposefully availed yourself of the benefits and protections of the forum state.  The State law component can usually be found in the State's "long arm" statute.  Some states' interepret their long arm to extend to the full amount of jurisdiction allowed under federal due process, and some states limit their exercise of jurisdiction.

I would definitely speak with a lawyer.  My thoughts are that if you lived in State A, signed a contract in State A to incur a debt secured by property in State A, and then defaulted on that obligation, State A is going to find sufficient minimum contacts.  Remember, people on this board routinely sue out of state collection agencies in their own state based on communications directed at the forum state.  Minimum contacts doesn't mean you have to live there. 

Vanue is another issue, but that is usually decided by State procedural law (unless in Federal Court). Traditionally, State venue laws allow for the case to be filed in the venue where a contract was signed if the defendant resides in another State.

Again, I'd speak to an attorney in the state where you signed the contract to find out whether they can sue you there. 

 

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