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Private Loan--which SOL applies, from which state?

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Hi, I'm new here and got a notice from a credit agency on my private student loan.  It's been 3 years since I last paid as I was contesting the amount and got sick.  I signed for the loan in D.C. and the loan originated in OH.  I now live in OH.  I also stopped paying while I lived in NY (before I moved to OH).  I just got a letter from a CA based in NY state (don't know if the CA state location makes any difference).  My question is which SOL will apply?  OH, NY or the shorter DC SOL of 3 years?  OH has a number of SOLs, 6 years, 8 years so I'm not sure which SOL would even apply to the promissory note for the bank based in OH.  How could I look this up at a law library.  I'm not very familiar with the process if anyone could help with legal research ideas?  I'm also contesting the validity of the loan because the promissory note states that the repayment period is 240 months and I think I have passed this point.  Any help I can find would help a long way; very stressed out by this situation---there are so many ways this could go---if the CA goes through with a judgment and wage garnishment (I'm disabled and earn a very small part time income) can they revive the judgment every five years for 15 years (OH) even after the SOL expires on the private loan itself (3 yrs DC SOL, 6 yrs NY SOL, 6 or 8 yrs SOL OH)?  I don't know if I should just ignore the CA or write them to dispute this loan (and risk waking the sleeping giant) or wake the sleeping giant with a dispute letter and prepare myself to go to court (have no idea how I would defend myself but would like to dispute amount of the loan, SOL etc).  This all seems very risky.  Can this debt sold to a credit agency be invalid?

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I also tried reaching out to a DC lawyer and she said that only an attorney from OH can give me legal advice even though I signed the promissory note while living in DC.  Does anyone know if this is true?

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20 hours ago, Ambrcat14 said:

I also tried reaching out to a DC lawyer and she said that only an attorney from OH can give me legal advice even though I signed the promissory note while living in DC.  Does anyone know if this is true?

Once you have been in the new State of residency for a period of time (varies by jurisdiction), the rules of the new State are controlling for litigation purposes.  By example, one has to live in Texas for a full year before acquiring the protections of Texas law on matters such as Statute of Limitations.  Until that time, the limitations period of the former State would control, although the other provisions of the Civil Practice and Remedies Code would apply as would the Rules of Civil Procedure governing trial procedures...

 

Then there are the contracts which have some specific language about which State law is controlling.

 

Further, regardless of the jurisdiction applicable in your case, you still have a fresh default (to the extent that three years is fresh).  You are fair game in damned near every State right now...

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Hi Centex,

 

I took this loan out in DC where the statute of limitations is 3 years and the rules of the FDCPA state that the SOL of the state where you sign apply to the loan OR the state where you reside.  I spoke with an attorney who said they could raise this as an objection at a hearing if I am sued in the state where I live but that it would be hard....

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On 12/6/2019 at 10:09 AM, centex said:

Once you have been in the new State of residency for a period of time (varies by jurisdiction), the rules of the new State are controlling for litigation purposes.  By example, one has to live in Texas for a full year before acquiring the protections of Texas law on matters such as Statute of Limitations.  Until that time, the limitations period of the former State would control, although the other provisions of the Civil Practice and Remedies Code would apply as would the Rules of Civil Procedure governing trial procedures...

 

Then there are the contracts which have some specific language about which State law is controlling.

 

Further, regardless of the jurisdiction applicable in your case, you still have a fresh default (to the extent that three years is fresh).  You are fair game in damned near every State right now...

The only mention of jurisdiction in my promissory note is that if I brought a lawsuit, it would have to be in Ohio; but there is nothing in the loan that mentions where they would bring a suit.  Now, you are stating state regulations but in a case where a diversity of jurisdictions apply, would they apply federal rules of procedure or wouldn't federal rules such as the FDCPA apply?

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WhyChat, Is this a question you might be able to help with?  Which SOL would apply on a private student loan (a private student loan promissory note is commercial paper as I have been told in this forum)---the state where I took out the loan (DC), the state where I reside (OH) or the state where I defaulted (NY)?

 

It seems that the FDCPA states that the "venue" must be either the state where I took out the loan or the state where I reside:

 

"15 USC 1692i

§ 811.  Legal actions by debt collectors

(a) Venue
Any debt collector who brings any legal action on a debt against any consumer shall --

(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity --

(A) in which such consumer signed the contract sued upon; or

(B) in which such consumer resides at the commencement of the action."

 

For some reason, NY statutes have some kind of rule that an action (or court case) can take place where the "tortionary" act took place (which I assume is where the 'tort' or 'default' took place, which in my case would be NY)---can't remember where I saw that rule.  But the FDCPA is a federal act and should have more standing than a statute right?  I'm lost.

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Without having read your contract I don't know if there are additional restrictions regarding Federal statutes on student loans. Was the loan used for an accredited school?? 

 

In general, if it was a contract in writing then the NY SOL would apply;(6 years)

https://whychat.me/States/state-ny.html

 

NY has a "borrowing statute"

New York's borrowing statute, CPLR 202, states that an action based upon a cause of action which accrues outside of this state , the claim must be timely under both the law of New York and the jurisdiction where the claim accrued.
THIS MEANS THAT IF YOU DEFAULTED(CAUSE OF ACTION) IN A SHORTER SOL STATE,AND THEN MOVED TO NY, YOU MAY USE THE STATE'S SOL IN WHICH THE CAUSE OF ACTION ACCRUED (STARTED)

 

Where were you living when you defaulted??

If DC the SOL would be 3 years

If Ohio the SOL would be 8 years ( and you would of course not use the "borrowing statute")

Edited by Why Chat

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5 hours ago, Why Chat said:

Without having read your contract I don't know if there are additional restrictions regarding Federal statutes on student loans. Was the loan used for an accredited school?? 

 

In general, if it was a contract in writing then the NY SOL would apply;(6 years)

https://whychat.me/States/state-ny.html

 

NY has a "borrowing statute"

New York's borrowing statute, CPLR 202, states that an action based upon a cause of action which accrues outside of this state , the claim must be timely under both the law of New York and the jurisdiction where the claim accrued.
THIS MEANS THAT IF YOU DEFAULTED(CAUSE OF ACTION) IN A SHORTER SOL STATE,AND THEN MOVED TO NY, YOU MAY USE THE STATE'S SOL IN WHICH THE CAUSE OF ACTION ACCRUED (STARTED)

 

Where were you living when you defaulted??

If DC the SOL would be 3 years

If Ohio the SOL would be 8 years ( and you would of course not use the "borrowing statute")

Thank you Why Chat for your response.

 

  • I was living in NY when I defaulted on the loan in 2016.  But I moved to OH and have been living in OH since 9/2017.

 

  • Does the NY statute still apply even though I am an OH resident now?

 

  • OH is where the issuing bank is also located.  NY is where the debt collector agency is located and where they are contacting me from.

 

The promissory note reads:

"N.  ADDITIONAL AGREEMENTS

2. I understand you are located in Ohio and this Application/Promissory Note will be entered in Ohio.  Consequently, the provisions of this Application/Promissory Note will be governed by federal law and the laws of the State of Ohio, without regard to conflict of law rules.  I agree that any suit I bring against you (or against any subsequent holder of this Application/Promissory Note) must be brought in a court of competent jurisdiction in the county in which you maintain your (or the county in which the subsequent holder maintains its) principal place of business."

 

  • Given this provision in the promissory note, would I be sued according to federal laws of the FDCPA (with the ability to use the DC shorter statute of 3 years since that is where I originally made this transaction) or according to OH state laws?

 

  • Also, are promissory notes considered commercial paper or written contracts?  I believe there is a shorter 6 year SOL for commercial paper in OH vs the 8 year SOL for written contracts in OH--that's why I'm asking which of these instruments it would be considered.

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You can use( borrow) the NY 6 year SOL.

When did you default??

 

Ohio's statutes for credit card debts have not as yet been successfully challenged in Court as most credit card Companies are domiciled in a 3 year SOL State. If you were sued and wanted to try to use Ohio's 4 year SOL for a defense you would have to either do it yourself or find a lawyer willing to buck the current system. The 4 year SOL has been successfully used as a defense for medical debts, however there was no signed contract involved.

OHIO UNIFORM COMMERCIAL CODE

 

1302.98 Statute of limitations in contracts for sale - UCC 2-725.
(A) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(B) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered.
(C) Where an action commenced within the time limited by division (A) of this section is so terminated as to leave available a remedy by another action for the same breach, such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.
(D) This section does not alter sections 2305.15 and 2305.16 of the Revised Code on tolling of the statute of limitations, nor does it apply to causes of action which have accrued before July 1, 1962.
Effective Date: 07-01-1962

(P) "Consumer transaction" means a sale, lease, assignment, or other transfer of an item of goods, or a service, except those transactions between persons, defined in sections 4905.03 and 5725.01 of the Revised Code, and their customers, or between attorneys or physicians and their clients or patients, to an individual for purposes that are primarily personal, family, or household. For the purposes of this chapter only, a "consumer transaction" does not include a lease-purchase agreement.

Edited by Why Chat

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Hi Why Chat,

 

Thanks very much for your insight.  I will try to answer your questions as best as I can and THANK YOU for bringing up the credit card SOL argument.  Even if it's a long shot (for myself to sue on my own), I would like to try it.

 

It looks like my last payment was on Oct. 28, 2016.  I did stop making payments in March of 2016 for 6 months but made small payments again up until 10/28/16--so that would be my date of default right?  Unless 3/2016 could qualify?

 

Now I received a letter on Feb 2018 from the bank stating that "This letter is in response to your recent request for documentation pertaining to the financial activity on your loan(s)."  Were they trying to reset the SOL by writing this to me and does this reset the SOL by implying I "communicated" with them about "my loan"?  I have disputed the validity of the loan in every conversation bc I thought the term of the loan had expired (I was wrong).

 

Why Chat, should I not dispute this loan or try to validate this loan---in order to avoid a lawsuit at this time? The loan amount is incorrect because the school had refunded a portion of the loan back to the lender but they are sending me to collections for the full original amount?  I just got my first collection letter from a CA this month (so it's been a little over 3 years since I defaulted).

 

Lastly, are you saying that the NY SOL trumps even the 3 year DC SOL which under the FDCPA is a SOL that would be considered because that is where I originally transacted on this loan?

 

Or finally, how would I argue that this is a consumer transaction even though I signed a promissory note--are there any precedents you know of that might help.

 

I know these are a lot of questions to ask; I'm really confused about this situation especially if I have to represent myself ----I am freaking out really, very much lost on how I would do such a thing---my legal research skills are not very good and I'm pulling up a lot of contradictory information. 

 

Very much lost.

 

Thanks very much for your responses.  I so want to get over this debt; it's been close to 23 years now and I'm disabled.

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We were sued and hired an attorney who stated the SOL was like that of a credit card. Day before court the lawyer suing decided not to pursue any further. I get letters a few times a year from different debt collector agencies with a settlement amount and a disclosure stating that due to the age of the loans they can not sue me or report to the credit agencies. 

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