Statute of Limitations, My State or Creditor's

[RecentlyRlsd]

My question involves collection proceedings in the State of: TX, DE

I'm being sued for a Discover card that was 30 days past due as of Feb 2007. The SOL here in TX is 4yrs(not short enough) But Discover has an address in DE where the SOL is 3yrs. Anyone know of a way I can use the DE SOL?? Just looking for a good defense for trial, Thanks!

[jk]

not unless your contract states that the laws of DE would be used.

Other than that, it's pretty much in the debtors home state.

[henleycreditlaw]

I agree that it is based on Texas law.

[garbanzobean]

Either find your cardmember agreement or look at the current one. Technically, the current one supercedes any previous agreements, but in any case the Discover cardmember agreement expressly and specifically says that for state law, only the laws of the state of Delaware apply, even if/though the cardmember resides elsewhere.

Which means you're being sued for a time-barred debt, which is a violation of Federal law.

[jk]

Which means you're being sued for a time-barred debt, which is a violation of Federal law.

no, it is not a violation of federal law. If sued and the debt is barred by time, the debtor is required to make a claim of the SOL as an affirmative defense. Not all debts that appear to be time barred actually are so it must be claimed and proven if contested.

[garbanzobean]

no, it is not a violation of federal law. If sued and the debt is barred by time, the debtor is required to make a claim of the SOL as an affirmative defense. Not all debts that appear to be time barred actually are so it must be claimed and proven if contested.

Hm. My understanding was that the FDCPA, which is Federal law, prohibits lawsuits or threats of lawsuits to collect time-barred debt.

[Mr. Knowitall]

The statute of limitations is generally treated by states as an issue of procedure, not a matter of substantive law, so even if there's a choice of law clause in a contract the state in which litigation is pending will typically apply its own statute of limitations or, when appropriate and if one exists, apply its borrowing statute to resolve any conflict with the limitations period of the state in which the cause of action accrued.

It would be a violation of the FDCPA for a third party debt collector to either threaten to file a lawsuit when they don't intend to do so, or to threaten to file a lawsuit when they know the suit is time-barred. But that doesn't of itself mean it's a FDCPA violation to sue on an expired debt and also, in this case, it appears the statute had not run.