Court Summons for Credit Card Debt.
Question:I live in Florida. The alleged credit card debt was initiated in Massachusetts. My question is; under my credit card agreement under "Applicable Law" This Agreement and your Account will be governed by federal law, and the laws of Arizona, whether or not you live in Arizona and whether or not your Account is used outside of Arizona. You agree that:(1) this Agreement is entered into in Arizona; (2) all credit under this Agreement will be extended from Arizona; and (3) all credit extended under this Agreement is subject to, and governed by, Section 44-1205(C) of Arizona Revised Statutes. All terms and conditions of this Agreement (including Returned Check Charge and Over Limit Change provisions) are deemed to be material to a determination of the finance charge.
My argument would be to dismiss this law suit due to this debt is pass the SOL period. Since Arizona Open accounts is 3 yrs. Do you think this argument will work?
My second argument would be that the debt amount is incorrect and I would then request a original application with my signed signature. I know the amount is incorrect and read some where that it's illegal for them to state an amount this is false; is that true?
My last question is I received another letter from the same Attorney, same Case No. but for a larger amount. Do you think their falsifying their documents?
Thank you so much for your time and any response that you can give me is so much appreciated.
Sincerely,
Guest101
Answer: Will your SOL argument work? Probably not unless you really know how to make it stick. Most judges simply won't want to hear it first of all because if that argument were to be accepted they would just about have to go to school all over again. It isn't just the SOL argument that can be used against plaintiffs. There are other ramifications and arguments that can be used as well if judges accept that argument. So you are likely to get denied even though there is a fair amount of case law to support your argument. As a result I would guess that you will not only need to know how to argue that point but how to force the judge to accept it whether he wants to or not. Be aware that in order to prevail you may have to take it to the appellate level or even higher. If you are willing to do that then I'd say you have a pretty fair chance. I am aware of an ongoing Florida case that is currently being decided by the judge who took it under advisement and is studying the matter. That person, a student of mine based his argument on another Florida case against Capital One wherein Cap One lost the case argued on the same grounds. The problem is that the first case was also decided in another district court in Florida so it is not a compulsary case.
There is another case that I am aware of that was ruled on in the 10th Circuit court of appeals. That case is not exactly the same but definitely similar and could be cited as well. Once again, however, rulings of the 10th circuit would not be compulsary in your state so all of the cases could only be advisory cases. They might help and they might not. You might very well have to take it all the way to your circuit court of appeals too. I would very deeply appreciate your keeping me abreast of what happens if you do argue it.
Then you ask about getting the original agreement to see if all the charges are allowable under the terms and conditions of the agreement. Another excellent argument that should be vital to the outcome of the case but again you may have to put up a hard fight to get that accomplished.
Are they falsifying their documents to get more money? Most likely they are.
Again, I think your arguments have much merit but trying to get a judge to agree with you isn't likely to be easy unless you know how to argue the case well and be prepared to back it up with further action if things don't go well.
Please keep me posted as your situation progresses.
