Livingston Financial LLC sues my wife.: August 2012

This blog is for ENTERTAINMENT PURPOSES ONLY and is providing my opinion ONLY, on topics such as the Florida statutes and what is happening with the situation as it is unfolding with my wife and the suit filed against her. This is NOT legal advice but my opinion on the unfolding events as it pertains to a specific scenario, with a specific Junk Debt Buyer, and specific circumstances surrounding all the parties involved. I may at time to time comment on other topics relating to case law and other issues but again it is to stimulate you to do your own research and encourage discussion should you choose to do so.

Again, this is NOT legal advice, I am NOT an attorney nor have I ever been an attorney. You should NOT rely on anything on this blog as a defense or apply it to your own situation. Again, this blog is meant to encourage you to think and do your own research.

If you are, or may soon be, in a similar situation, do your own research, read the Florida state statutes (or your own states statutes), read your states Rules of Civil Procedure. YOU will need to determine your own conclusions, and consult with a bar certified attorney in your area, if at all possible to do so, so that you can obtain sound legal advice.

In no event will this blog or I be held liable to any party for any damages arising, in any way, out of the use of information on this blog, you have been warned. I am only chronicling my opinion and the events as they occur. Again, I cannot stress it enough, if this blog has you thinking, then research, research, research, and talk to a bar certified attorney in your area.

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Hello again and while I am waiting to see what happens with my wife's case against Livingston Financial LLC I decided to post some thoughts on some things I found in my research regarding choice of law. I know this is deviating from the current cases, both against my wife in county court and the case she filed in Federal District Court but it's some really good information to get you thinking and researching on your own and I couldn't keep it to myself.

Now while the information I found seems to be established case law in Florida, this may or may not be the case in your state. It depends on whether your state views the statute of limitations (SOL) as procedural or substantive law. If your state, like Florida, deems the SOL to be substantive law, then Florida courts should allow the other states SOL, no guarantees (no one can guarantee how a judge will rule) and again this is my personal opinion as a citizen, I am NOT an attorney! If you do get sued on an out of SOL debt then keep in mind that it will probably be an FDCPA violation as well, but more on that at the end of this post. In keeping with my disclaimer, remember, these are my opinions and you should consult with an attorney to be sure, I cannot stress this enough, even if you intend to go Pro Se. There are many good NACA attorneys that will give consultations for little or no charge and may take your case at little cost or on contingency. The opinions as well as information I am giving below I found from research I am doing into the only other unpaid debt my wife has.

In this specific instance the debt is a Bank of America (BOA) debt that is serviced by FIA card services. Keep in mind FIA also services the old MBNA cards that BOA later purchased along with MBNA. Now first off, you remembered to keep that old BOA or MBNA card agreement didn't you? If not, don't fret, you can find many years of older card agreements for many original creditors (OC) on the web, that's what Google is for! Now we all know that some OC's change their card agreements quite often, sometimes on the order of each year or even more often. Now it's my understanding that to accept the new agreement, you do so by retaining the account and continuing to make purchases, when you default that stops. Therefore it should be the last agreement in effect while the account was still in "good standing" that governs your debt. Your mileage may vary with this but that's how I understand it to be.

So now that you have the card agreement, what do you look for? Well alot of OC's are incorporated in Delaware or Virginia, as such they usually have a "Choice of Law" or "What law applies" provision in their agreement choosing the law of their home state. Why does this matter in Florida? Well Florida SOL on credit cards (not store cards, that's a case law discussion for another day) is 5 years. In Delaware (Del.Code Ann. Tit. 10, § 8106 (a)) it is 3 years. With Virginia choice of law it should also be 3 yrs, it's a little dicey but it still looks to be 3yrs as accepted by Florida courts, look up the Capital One Bank v. Gregorich case from Palm Beach County Circuit Court on google for how the Virginia choice of law is worked out by the court. Starting to see my point? There are other choice of law provisions citing other states in card agreements so do your research based on what you are dealing with!

So why would Florida courts use another states SOL? That's where the case law I found in my research comes in to play. First here is some case law I found supporting that Florida courts will treat choice of law provisions as substantive law:

"Florida courts consider the statute of limitations to be substantive, and therefore the statute of limitations of the parties' chosen forum will apply where there exists a contractual choice of laws provision." Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008. "In Florida, a choice of law provision of a contract is presumptively valid unless the party seeking to avoid it shows that application of the chosen law 'contravenes [a] strong public policy' of Florida." Mazzoni Farms, Inc. v. E.I. Du-Pont De Nemours and Co., 761 So.2d 306, 311 (Fla.2000) "We therefore conclude that the contractual provision shortening the period of time for filing a suit was not contrary to a strong public policy." Burroughs Corp. v. Suntogs of Miami, Inc., 472 So. 2d 1166 - Fla: Supreme Court 1985.

Florida also includes choice of law in the Florida Statutes, specifically statute 671.105(1) 2012.

So how does this apply to a case where you are being sued by a junk debt buyer (JDB) that didn't purchase the media for your debt that has the card agreement, or assuming they did, they didn't research it first or flat out ignored it? JDBs like Sherman Financial Group, Sherman Acquisitions, Alegis, Resurgent, Northstar, LVNV Funding, Midland Funding, Midland Credit Management, CACH LLC, Portfolio Recovery, Equitable Ascent, Calvary Portfolio, Asset Acceptance, Arrow Financial, Livingston Financial, ETC ETC. Why does the choice of law provision apply when the agreement was between you and the OC, not the JDB? Well, as the JDB likes to put it when they sue you, the JDB "steps into the shoes" of the OC, so the contract you agreed to then obligates you to them. Well this cuts both ways, the agreement the OC created and that you agreed to binds them as well to that agreement..... and the choice of law provision if it is part of that agreement.

A couple of good cases that I found in my research, that I believe are case law, and that I believe you should also research, are L.W.T., Inc. v. McCorriston, 15 Fla L. Weekly Supp. 443a (Fla. 13th Jud. Cir. November 19, 2007) and Gaisser v. Portfolio Recovery Associates, 2008 WL3824746 (S.D. Fla. August 5, 2008). There are also lower court cases you can research like L.W.T v. Brodsky Fla.Cir.Ct.,2006, and county court cases as well that you can find online such as Capital One Bank v. Pincus and Capital One Bank v. Gregorich. Keep in mind, it is my understanding that lower court rulings (county and circuit) are not caselaw. However other lower courts may take the rulings under advisement as supporting cases. I know I cited Capital One cases but, unfortunately for all you folks with Crap One debt I believe they removed the favorable Virginia choice of law from their more recent card agreements.

Finally, how would this be an actionable FDCPA violation? Well my thinking as a private citizen, again I am NOT an attorney, is this. If a JDB sues you on a time barred debt, even if it was barred due to the choice of law provision being upheld in court, it should be a FDCPA violation. The JDB misinterpreting the law shouldn't get them off the hook for "bona fide error" in my opinion. This also seems to be the opinion of the United States Supreme Court as well. The following case presents the question whether the "bona fide error" defense applies to a violation resulting from a JDB's mistaken interpretation of the legal requirements of the FDCPA. “We conclude it does not.” See, Jerman v. Carlisle, McNellie, Rini, Kramer & Ulnch LPA, No. 08-1200, 130 S. Ct. 1605; 176 L Ed. 2D 519; 2010 U.S. Lexis 3480; (April 21, 2010). The FDCPA violation I have to say is from a very knowledgable fellow over at the www.creditinfocenter.com forums. Please don't hurt me too much for posting this without asking Coltfan1972. But folks, Coltfan1972 is a really knowledgable guy over at credit info center, check out his posts, you'll see what I mean!

Well those are my opinions as well as information I found while helping my wife with research. I suggest, as always, that you do your due diligence and then bring what you find to your consultation with whatever attorney you decide to use. You can always go Pro Se but that's for you to research and determine on your own.

Livingston Financial LLC sues my wife.

Sunday, August 26, 2012

Florida Statute of Limitations and Choice of Law

Wednesday, August 15, 2012

Update: FDCPA case pending in US District Court