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SOL Question

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I was preparing to send a FOAD letter to Midland regarding an old HSBC account. The DOFD was May 2009.

 

What worries me is I currently reside in Maine, where SOL is 6 years.

 

HSBC account was Nevada (4 Years). HSBC accounts were acquired by CapOne in Virginia (3 years). I was living in Pennsylvania when the account was opened (4 years).

 

Surely moving to a state with a longer SOL, after the SOL had already passed, does not suddenly reopen the window for litigation?

 

How do I know what applies?

 

 

 

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I'd be careful here. Unless there is someone on the board who can point you to the proper Maine law saying otherwise, you could have a problem. You might need to consult with a Maine lawyer before you send that letter.

 

Because you now reside in Maine, the local county court would have personal jurisdiction over you and would be a proper venue for a lawsuit. Unless there is a Maine law that says otherwise, you cannot assert the Nevada statute of limitations as an affirmative defense to an action commenced in Maine. (However, some states do have laws that restrict creditors to the SoL in the state where the debt originated.)

 

Additionally, some states will toll the SoL during any time where the defendant was out of the jurisdiction. I don't believe (although I'm not certain) that Nevada has such a tolling statute for civil actions, but if they did, then the clock on the SoL in Nevada would stop ticking once you moved out of the state.

 

You are right to be cautious. If the debt is large, I'd seek qualified legal advice before proceeding.

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Archimaybe: The debt is less than $750. Now that I think more, it was actually an Orchard Bank card that HSBC acquired, a joint card with the ex from way back. Then, long after it was closed, CapOne acquired HSBC, and thus the account. The Orchard/HSBC account does not even show on my credit reports now. The account was sold to Calvary after it was past the 4 year SOL, when I was living in PA. They sent a letter, I sent a DV, they went away. Calvary sold it to Midland. You know how scumbags trade debts back and forth.

 

Eternal: Yes, moved to Maine October 2013.

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It's past the SOL. Make sure you and your ex do not admit to the debt , make an offer to pay or make a payment or it could reset the SOL to a big fat zero. Many people unknowingly make these mistakes.

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Eternal: Yes, moved to Maine October 2013.

 

You're fine then. Moving to Maine will not extend the SOL since it already passed while you were living in Pennsylvania.

Edited by EternalDebtSlayer

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You're fine then. Moving to Maine will not extend the SOL since it already passed while you were living in Pennsylvania.

EDS -- That sounds reasonable, and I'm certainly not saying that you're wrong, but I am not convinced. My reasoning:

 

First, there's no question that OP can be properly sued in the county in which he resides in Maine. The question is whether he can assert a winning affirmative defense based on the statute of limitations or some other Maine statute. When you plead a statutory affirmative defense in a state court, you must indicate which one of that state's statutes provides the defense.

 

In this case, Maine's general statute of limitations does NOT provide an affirmative defense to the action until six years have elapsed. Perhaps there is another Maine statute or case that says that Maine respects the SoL of the state where the debt was accrued, or something like that, but then OP would need to plead his affirmative defense from that other Maine statute, not the Maine SoL. Generally speaking, I don't think you can plead a statutory affirmative defense in Maine on the basis of a Pennsylvania or Nevada statute.

 

I could be dead wrong here. But I think that maybe someone should point out the error I'm making before OP pokes the bear (although $750 is probably not enough to sue over).

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Maine

 

§866. Defendant out of State when action commenced; insolvency

If a person is out of the State when a cause of action accrues against him, the action may be commenced within the time limited therefor after he comes into the State. If a person is absent from and resides out of the State, after a cause of action has accrued against him, the time of his absence from the State shall not be taken as a part of the time limited for the commencement of the action. If a person is adjudged an insolvent debtor after a cause of action has accrued against him, and such cause of action is one provable in insolvency, the time of the pendency of his insolvency proceedings shall not be taken as a part of the time limited for the commencement of the action. No action shall be brought by any person whose cause of action has been barred by the laws of any state, territory or country while all the parties have resided therein

 

 

Send Midland a FOAD letter - with the Above statute quoted . I doubt they have the dates of where you lived .

 

and yes, they file actions in Small claims all the time.

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§866. Defendant out of State when action commenced; insolvency

 

[...]

 

No action shall be brought by any person whose cause of action has been barred by the laws of any state, territory or country while all the parties have resided therein

 

 

Send Midland a FOAD letter - with the Above statute quoted . I doubt they have the dates of where you lived .

 

and yes, they file actions in Small claims all the time.

Well, looks like that question has been settled. ;)

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