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Credit Card Agreements

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Frequent Contributor

Re: Credit Card Agreements

That “borrowing statute” will not apply.   Unless Iowa has another statute, you need to see what Iowa courts have to say about applying SOLs of other states in Iowa courts. 

 

Has a creditor sued yet?  Why would you, or your friend, want to initiate arbitration right now?  

 

Just an FYI, original creditors are more likely to agree to arbitrate.  Unless there’s a valid defense to the debts, a bad case in court is a bad one in arbitration. 

Message 11 of 14
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Contributor

Re: Credit Card Agreements

He wants to just be prepared.  Luckily in Iowa the Iowa Consumer Code provides that a plaintiff provide a Right to Cure at least 30 days before they sue.  One of the accounts was allegedly bought by LVNV from Citi and they have been the most aggressive.  They had sent him a letter from one of their collection agents companies and he did a timely validation request.  They sent him some miscellaneous monthly statements and have resumed calling him.  Since Citi is in South Dakota there is a 6 year SOL, so we could keep it out of the courts hands and make them go away with taking this into AAA arbitration which is the only arbitrator Citi allows; to prove chain of custody and challenge their account custodian affidavits which usually aren't from the OC but someone LVNV conjures up, plus any FDCPA and Iowa Consumer Code violations which have occurred.  Since he hasn't received a Right to Cure yet I would like to just have him wait until he does get one and then elect arbitration by filling out the AAA form and sending it in, then sending a copy over to LVNV's law firm listed on the Right to Cure.  It would show LVNV that he is serious and hopefully brings about a settlement of the account by removing TL from credit bureaus.  It seems that the JDB's aren't willing to play the arbitration game because of the cost.

 

As far as the OC's, I think it would be a mistake to take them on and quite frankly he could probably negotiate next year when he has more leverage with the 5 year Iowa SOL.   It would be good strategy to know if he could use the Delaware SOL now if things speed up.  It sounds like you think he couldn't use the Delaware SOL that's spelled out in the agreement.  This is because he wouldn't be in a Delaware court physically, but in an Iowa District court jurisdiction, thereby needing the borrowing statute.  I'll try and look up some court cases. 

Message 12 of 14
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Contributor

Re: Credit Card Agreements

I was able to find the credit card agreements for the charge off dates.  They were all Delaware for governing law.  Iowa has a poorly written borrowing statute which is mainly procedural, but I did find a memorandum decision & order from 7/20/2012  that seems to work around any borrowing statute and that the cardmember agreement's verbiage is the law of the land and thus Delaware SOL law would be what should be looked at.  I don't know if this was from case law or what.  I believe its from a defendant out of Utah. 

 

I didn't know arbitrators often disregard SOL's in arbitration.  So as I now see it my friend shouldn't elect arbitration after he is sent a Right to Cure by an OC, but if LVNV as a debt collector sends a Right to Cure, then he should be preemptive and send their law firm a copy of the AAA or Jams application and a letter telling them of his intentions to elect arbitration, to prevent them from suing. 

Message 13 of 14
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Frequent Contributor

Re: Credit Card Agreements

Utah case law would not help an Iowa defendant.  

 

The date of the memorandum doesn’t help us locate it.  Who were the parties?

Message 14 of 14
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