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MTD and credit report

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alexander323bc:
I am new here and the search function pulled out way to much stuff to sort through all of it. I am sure this is a re post but I could not find it.  So you can just point me in the right direction :)

I am new york state in County Court. I have sent disclosure already and waiting for a follow up response. In the mean time I am working in filing a motion to dismiss based on the SOL of 3 years working off the case law court of appeals in 2010 ( i don't know the name off the top of my head) My question is will a copy of my credit report showing First Date of Delinquency work in an MTD to show the date of SOL? I don't have any bank statements or anything.   Do I need the Plaintiff the verify the report that its the correct date? If so how do I do this?

Had Enough:
Not sure where you got NY as 3 years.

I always thought it was 6.

§  213.  Actions to be commenced within six years: where not otherwise
  provided for; on contract; on sealed instrument; on bond  or  note,  and
  mortgage  upon  real  property;  by  state  based on misappropriation of
  public property; based on  mistake;  by  corporation  against  director,
  officer  or  stockholder;  based on fraud. The following actions must be
  commenced within six years:
    1. an action for which no limitation  is  specifically  prescribed  by
  law;
    2.  an  action  upon a contractual obligation or liability, express or
  implied, except as provided in section two hundred  thirteen-a  of  this
  article  or  article 2 of the uniform commercial code or article 36-B of
  the general business law;
    3. an action upon a sealed instrument;
    4. an action upon a bond or note, the payment of which is secured by a
  mortgage upon real property, or upon a bond  or  note  and  mortgage  so
  secured, or upon a mortgage of real property, or any interest therein;
    5.  an  action  by  the  state  based  upon  the  spoliation  or other
  misappropriation of public property; the time within  which  the  action
  must  be  commenced shall be computed from discovery by the state of the
  facts relied upon;
    6. an action based upon mistake;
    7. an action by or on behalf of a corporation  against  a  present  or
  former director, officer or stockholder for an accounting, or to procure
  a judgment on the ground of fraud, or to enforce a liability, penalty or
  forfeiture, or to recover damages for waste or for an injury to property
  or for an accounting in conjunction therewith.
    8.  an  action based upon fraud; the time within which the action must
  be commenced shall be the greater of six years from the date  the  cause
  of action accrued or two years from the time the plaintiff or the person
  under  whom  the  plaintiff  claims  discovered the fraud, or could with
  reasonable diligence have discovered it.

alexander323bc:
I knew this would happen lol. New York is Six but the card holder agreement states its under Delaware law. Delaware law is 3 years. I got this case off this site actually. This is the basis for my MTD. My questions is will credit report work to show the date?

New York SOL - 3 years
« on: November 26, 2011 08:14:04 PM »

    Quote

I noticed this hasn't been posted in the state forum but I wanted to point out a 2010 NY Appeals Court decision in which the consumer is entitled to their choice of the shorter of the two SOLs.

Portfolio Recover Associates, LLC v. King

http://scholar.google.com/scholar_case?q=Portfolio+Recovery+Associates,+LLC+v.+King&hl=en&as_sdt=2,33&as_ylo=2010&as_vis=1&case=8626368307996834885&scilh=0

Quote


    From: http://www.newyorkconsumerprotection.com/new-york-court-of-appeals-holds-that-debt-buyer%E2%80%99s-claim-is-time-barred-under-new-york%E2%80%99s-%E2%80%9Cborrowing-statute%E2%80%9D-debtor-entitled-to-rely-upon-delaware%E2%80%99s-three-year


    Essentially, New York’s Court of Appeals held that a consumer was entitled to the shorter of New York’s statute of limitations (six years for breach of contract) and Delaware’s statute of limitations (three years for breach of contract).

    In coming to this conclusion, the Court did not rely upon the Delaware choice of law provision in the consumer’s credit card agreement.  Rather, the Court held that even though the credit card agreement’s “standard” choice of law provision only applied to “substantive” legal issues and not to “procedural” issues , such as the statute of limitations, the consumer, a pro se litigant, was entitled to Delaware’s shorter statute of limitations pursuant to CPLR § 202 (i.e. New York’s “borrowing statute”).  Specifically, the Court held that defendant was entitled to choose the shorter of the statute of limitations available in a the original creditor’s home state of Delaware, and the six year statute of limitations generally applicable to credit card cases under New York law.

    The Court explicitly held that it was the original creditor’s home state that was at issue, and not the home state of the debt buyer, who had purchased the account after default.

alexander323bc:
Any one out here have any experience with using a credit report to show the SOL as supporting evidence used in a Motion to Dismiss? Do I order a copy of the report and ask for an affidavit verifying its authenticity? I don't have have any bank records this is all I have.

alexander323bc:
Has anyone in new york state ( outside of new york city) filed a motion to dismiss based on the SOL. I have it all typed up ( the brief, with statement argument) I am just trying to figure out the affidavit stuff. Is the only affidavit you have to file the one that supports the motion? I will be notifying the plaintiff by certified mail. 

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