Which Statue of Limitations do I use?

[em072205]

Long story - but the short of it is, Calvary is currently trying to sue me. The account in question has not been paid on for four years, which the card was opened in California. A year ago I moved to Missouri and thought I was okay due to the fact that the card was not opened here but in California and believed the statue of limitations would fall on that account. From what I find, Missour is five years which means they could use that and still sue me as it has less than 5 years.

They have not served me yet, filed almost three weeks ago and I only found out because I was getting letters from attorneys asking them to call me. Which statute of limitations stands?

[Brian_Earl_Spilner]

Having a hard time remembering, but I believe they can choose whichever one they want.

[em072205]

I'm not so sure that is true - and that just seems very wrong and shady. Most states have a borrowing statute that if the original cause of action was in another state, it will borrow the statue of limitations from the state it originated from. See below:

516.190 reads: “Whenever a cause of action has been fully barred by the laws of the state, territory or county in which it originated, said bar shall be a complete defense to any action brought thereon, brought in any of the courts of this state.”

Which means that another state’s statute of limitation is applicable when the cause of action “originates” in another state, but the cause of action is brought in Missouri.

However, I want to make sure that this is the case and if anyone else has been able to get this done.

[Brian_Earl_Spilner]

As long as the laws haven't changed, they can domesticate in your new state and sue you. If the process was started prior to the SOL ending, you're not protected by the statute you posted. @RobertEG is the resident expert and will be able to clarify.

[RobertEG]

The statute of limitations that must be used by a trial court is the statute of the state in where the court resides.

Many states have "borrowing provisions" that permit some aspects of the statute of another state to be applied within their state, but any such provisions of another state must be specifically identified and sanctioned in the SOL statute of the state of the trial court.

If the previously cited borrowing provision set forth under Missouri statute applies to civil actions on debt, then it would permit the consumer to rely upon the SOL period of the state where the debt was contracted if that other state has a shorter SOL.

The post pertains to a debt collector, and thus they are limited to venue by the explicit provisions of federal law, set forth in FDPA 811 as follows:

"FDCPA 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.

[em072205]

Thank you Robert, this is what I was looking for.

I understand they are filing in Missouri, but the SOL has already expired over 3 months ago in California. They just filed this month which is way past it and are now trying to use the SOL for Missouri instead. I get that they can still sue in Missouri, but because of the borrowing clause (which includes debt as well), I know which stance I'm going on. Plus, I'm still waiting for them to serve me. They filed three weeks ago and still haven't served me the papers and I've heard they are big on sewer serving people.

[RobertEG]

When they file and it comes time for you to file an answer with the court to their complaint, then raising an expiration of SOL defense should be in your answer/response to the court.

[BlueMystic]

Sorry but I just couldn't resist.  

[CreditInspired]

Thanks @BlueMystic

I was wracking my brain trying to recall what sitcom did the skit.

[vntrsc]

Another issue to consider is whether or not the SOL had already passed when you left California.  If the debt was not yet time-barred when you moved, check CA law for a tolling statute due to absence from the state.  That means the SOL clock stopped running when you moved.  

In in the event CA has such a statute, an attorney could determine if it applies in your situation.