How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask TJ, Esq. Your Own Question

TJ, Esq.
TJ, Esq., Attorney
Category: Legal
Satisfied Customers: 9858
Experience:  JD, MBA
9373668
Type Your Legal Question Here...
TJ, Esq. is online now
A new question is answered every 9 seconds

need a few court cases,depicting Illinois SOL ruling shorter

Customer Question

I need a few court cases,depicting a ruling how Illinois Statute Of Limitations (SOL) are shortened from (Illinois=5 year SOL) to (Delaware=3 years SOL) against Bank Of America or FIA Card Services based on its governing agreement in the credit card contract which reads ....["the respective successors and assigns of Seller and Purchaser shall be governed by and construed and interpreted in accordance with the Agreement and the laws of the state of Delaware, without regard to such state’s principles of conflicts of law”.] I think this means, that the Delaware rules govern and the SOL applies as 3 years in a case in Illinois, rather than the normal 5 Year SOL....background= I'm being sued by a debt purchaser that will claim the SOL for Illinois is 5 years, not 3 years.

Submitted: 1 year ago.
Category: Legal
Expert:  N Cal Attorney replied 1 year ago.
If the contract specified that Delaware law applies, that can include the Delaware statutes of limitations, see
http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=7744
which states:
The statute of limitation could be even shorter if another state’s law applies. Consumer contracts often have a “choice of law” clause buried somewhere, by which you “agree” for another state’s law to govern any dispute that may arise.

Capital One agreements, for example, often choose Virginia law. It turns out that Virginia’s statute of limitation on “revolving credit” agreements, like credit cards, is 3 years.

In those cases, even though Capital One sues in Illinois, it’s Virginia’s short statute of limitation that applies. If they file more than 3 years from your last payment, the case should be dismissed.

There is a case posted at
http://www.state.il.us/court/opinions/appellatecourt/2008/1stdistrict/june/1072058.pdf
that supports your argument but it turns on the exact language of the contract and whether the Delaware statute in question is considered a statute of limitation or a statute of repose.

That case is cited as FREEMAN v. WILLIAMSON 890 N.E.2d 1127 (2008). Your County Law Library will have a set of books called Shepards Citator that will let you find every later case that cited the Freeman case. I do not have Shepards here.

The Freeman opinion states:
 Trustee argues Illinois law applies to his claims because section 17-607(c) of the Delaware Act is a statute of limitation.   Citing Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325, 264 Ill.Dec. 283, 770 N.E.2d 177 (2002), Trustee asserts that, notwithstanding the agreement's choice of law provision selecting Delaware law to apply to the agreement, because the issue here concerns a statute of limitations, the law of the forum, Illinois, controls.   So long as a choice of law provision does not contravene Illinois public policy and there is some relationship between the chosen forum and the parties to the transaction, an express choice of law provision will be given full effect.  Hartford v. Burns International Security Services, Inc., 172 Ill.App.3d 184, 187, 122 Ill.Dec. 204, 526 N.E.2d 463 (1988).   However, Belleville Toyota, Inc. provides that, although a choice of law provision generally will be honored, the law of the forum will control as to statute of limitations matters because statutes of limitations are procedural, fixing the time in which the remedy for a wrong may be sought rather than altering substantive rights.  Belleville Toyota, Inc., 199 Ill.2d at 351, 264 Ill.Dec. 283, 770 N.E.2d at 194.   In Belleville Toyota, Inc., the parties' contract contained a choice of law provision stating that California law would govern the contract.   The court, therefore, applied California substantive law pursuant to the choice of law provision but, to determine the timeliness of the plaintiff's claim under contract, applied Illinois law to the statute of limitations issue.

 Plaintiffs respond that Delaware law should apply to Trustee's claims because the three-year restriction in section 17-607(c) is a statute of repose rather than a statute of limitations.///

You do appear to have a basis to file a demurrer to the complaint based on the statute of limitations argument.

I hope this information us helpful.
Customer: replied 1 year ago.

I needed a few cases to support me as a defendant showing clear use of shorter statute of 3 years. What I got was not clearly supported and I also had found the legal aid case myself on line. I need the cases to clearly support 3 year statute of limitations. Can you get this by end of next week?

Expert:  N Cal Attorney replied 1 year ago.
As I wrote before, the issue turns on the exact language of the contract and whether the Delaware statute in question is considered a statute of limitation or a statute of repose.

Which Delaware statute are you relying on?

Can you please quote the exact compete language of the choice of law provision in the contract?
Customer: replied 1 year ago.

I am still awaiting the answer, job not complete.


I put all the text from the contract into the original question.


I received no answer that answered my specific requirements, for a few court cases that provide support, for me as the defendent to a lawsuit, that I need the sporting cases for. Instead, there was something about it having more than one meaning, which is not qualifying as a supported case.


 


You need a rating, before I provide a rating, I would like the job to be complete. Please finish the job, and provide a few court cases that support using the delaware statute of limitations for the illinois venue.


 


Thanks,


Chuck.


 

Customer: replied 1 year ago.

To fully answer your question, I'm retyping everything from the case for my assignment support. Here is all the language summons. 1=Assignment Contract, 2=all bullet points of the charges against me(they never included the contract they refer to in exhibit) My objective, is to have the Delaware statute of limitations rule over the state of illinois statute of limitation, because with the Delaware statute, it has passed, but with Illinois statute, it has not passed. To their summons, I replied not guilty.


BILL OF SALE & ASSIGNMENT OF LOANS:


a. In consideration of the payments made pursuant to the agreement and such other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, seller does hereby sell, transfer, convey, assign and deliver to purchaser all of seller's right, title and interest in and to each and all of the loans, as included on the electronic file referenced in schedule 1 of the loan agreement, without recourse and without representation or warranty of any type, kind, character or nature, express or implied, except as specifically provided in the agreement, and subject to Buyers repurchase rights as set forth in sections 8.1 and 8.2 of the agreement.


b. Purchaser hereby accepts such sale, transfer, conveyance, assignment, and delivery of the loans, including without limitation the right to all principal, interest or other proceeds of any kind with respect to the loans remaining due and owing as of the cutoff date applicable to such loans.


c. Nothing in this bill of sale and assignment of loans shall be deemed to modify, limit or amend any of the rights or obligations of purchaser or seller under the agreement. This bill of sale shall inure to the benefit of, and be binding upon, the respective successors and assigns of Seller and Purchaser and shall be governed by and construed and interpreted in accordance wtih the agreement and the laws of the state of Delaware, without regard to such state's principles of conflicts of law.


d. This Bill of Sale may be executed by facsimile or electronic transmission in multiple counterparts, each of which shall be an original, but together shall constitute one and the same instrument.


IN WITNESS WHEREOF, each party, through its duly authorized officer, has caused this bill of Sale and Assignment of Loans to be executed in their name this 19th day of July, 2012.


Seller/assignor: FIA card Services, NA Debra Pellicciaro Vice president Buyer/Assignee, CACH, LLC, Lilteath Sampson, CFO


Bank of America, asset sales, Deerfield, IL 655 Paper Mill Road, Newark, DE 19711


MY NOTES: 1.the contract they make reference to has not been presented, so I have not been presented with anything from the original contract. Not sure what Delaware statute you're referring to, I meant the statute of limitations. They filed suite on 3.21.13, court plea date was not until 4/19/13. I don’t know what the statute requires, summons date, response date, court date, etc.


PER THEIR SUMMONS, HERE ARE FOLLOWING CHARGES:


COMPLAINT, BREACH of UNWRITTEN CONTRACT:


1. plaintiff is a foreign LLC registered to conduct business in state of Illinois


2. Defendant is an individual believed to be a resident of Dupage county, Illinois at the commencement of this cause and venue is proper in the circuit of court of dupage county, Illinois


3. that on or about 2/4/08, a credit card was issued by Bank of America, NA. The credit card was designated by account # xxxxxx4135


4. That defendant received and used (or authorized the use of) the card and thus became obligated to pay for charges incurred with the card.


"Credit card obligations are subject to contract, through the offer and acceptance aspects of credit card law differ somewhat from other types of contracts. The receipt of an application in the mail and return of the application to the credit card company does not create a contract, nor does the issuance of the credit card by the credit company to the cardholder. A credit card holder does not provide consideration of the extension of credit simply by providing information to the card issuer. The issuance of a card by a credit card company is nothing more than an offer to extend credit. No obligation is imposed upon either the cardholder or the card issuer until such time as a purchase is made. It is the use of the credit card which creates the contract whereby the credit card company promisees to pay the obligation incurred by use of the credit card. The card holder in return promises that they will pay to the credit card company the charges incurred in these transactions". See garber v harris trust & savings bank, 104 ILL. App 3d 675, 432 N.E. 2nd 1309, 60 ILL.Dec.410(ILl App.Ct.1982).


5. That defendant defaulted on his/her obligation to make payments on the credit card account and the account was subsequently charged off to profit and loss by Bank of America, NA. resulting in the balance due plaintiff of $10,075.85 as stated in the attached Plaintiff's account information report.


6. That Plaintiff, CACH, LLC, became owner of the charged off account by virtue of a purchase entered into by Plaintiff and its predecessor(s) in interest.


7. That all credits and payments have been properly applied. Defendant is not entitled to any additional credits or set offs on the account of any kind and the balance set forth herein is currently due and owing.


8. That demand has been made on Defendant to pay the balance due and owing by Plaintiff's counsel and said demand for payment has been refused.


CACH, LLC prays that this honorable court enter an order granting the following relief:


a. Judgement be entered in favor of Plaintiff and against defendant


b. that costs of suit be awarded plaintiff


c. any further relief that this honorable court deems is fair and equitable.


------------------------------------NOTE FROM ME: not, statute of limitation I think applies to credit card debt, unwritten contracts but they're saying its a written contract, due to its use..hopefully thats not true as well.


thanks, Chas

Expert:  N Cal Attorney replied 1 year ago.
I found the Delaware statutes:

§ 8106. Actions subject to 3-year limitation.

(a) No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 and 8127 of this title.

(b) Contractual limitations. -- Notwithstanding any other provision of this section, a property insurance contract subject to subchapter III of Chapter 41 of Title 18:

(1) May not require that an action for a claim made under the contract be filed less than 1 year from the date of the denial of the claim by the insurer; and

(2) May permit an action for a claim made under the contract to be filed more than 1 year from the date of the denial of the claim by the insurer.

Code 1852, § 2742; Code 1915, § 4671; Code 1935, § 5129; 46 Del. Laws, c. 115, § 1; 10 Del. C. 1953, § 8106; 57 Del. Laws, c. 568, § 2; 76 Del. Laws, c. 223, § 2.;

§ 8107. Actions subject to 2-year limitation.

No action to recover damages for wrongful death or for injury to personal property shall be brought after the expiration of 2 years from the accruing of the cause of such action.

10 Del. C. 1953, § 8106A; 52 Del. Laws, c. 339, § 1.;

§ 8108. Mutual running accounts.

In the case of a mutual and running account between parties, the limitation, specified in § 8106 of this title, shall not begin to run while such account continues open and current.

Code 1852, § 2743; Code 1915, § 4672; Code 1935, § 5130; 10 Del. C. 1953, § 8107.;
From
http://delcode.delaware.gov/title10/c081/index.shtml

I think a credit card account would be considered a "mutual running account" and subject to the 3 year limitation of § 8106. I cannot go to the library for you, but someone needs to Shepardize § 8106 to find all Illinois cases that cite it, and to look for Delaware cases that state whether or not it has been called a statute of repose. Shepard's, which I mentioned earlier, covers both cases and statutes.

I am sorry but part of what you are asking for is not something we normally do.

If you want, please ask me and I will opt out of the question and see if another Expert has more research capabilities.
Customer: replied 1 year ago.

Hi,


I have a court case coming up, and really need some court cases that support my defense for the statute of limitation to be used for delaware in an illinois venue with support that is conclusive.


 


I'm sure that this isn't the first time, Bank Of America, FIA card services, has sued someone in illinois by enforcing their delaware contract, and this issue has arisen, this has to happen month after month with sufficient competent evidential matter to support and win the defense for me.


Chuck.

Expert:  TJ, Esq. replied 1 year ago.
Hello and thank you for allowing me the opportunity to assist you.

I don't have good news for you, so I won't ask you to rate me (I've had too many negative ratings for giving bad news, despite the answer being correct).

The bottom line is that you won't find any cases that say what you want. A statute of limitations is procedural, not substantive. Procedures in the forum state will govern notwithstanding a choice of law clause. So, just as the Illinois court will follow its own laws with regard to how many days you have to file the Answer to the Complaint, or how to properly serve the summons, it will also follow its own rules with regard to the statute of limitations. This is from the Illinois Supreme Court:

The 1980 agreement contained a choice of law provision stating that California law governs. Generally, choice of law provisions will be honored. As to procedural matters, however, the law of the forum controls. Statutes of limitations are procedural, merely fixing the time in which the remedy for a wrong may be sought, and do not alter substantive rights. Accordingly, Illinois law governs the timeliness of plaintiff's claim under the 1980 dealer agreement. Belleville Toyota v. Toyota Motor Sales, 770 N.E.2d 177, 199 Ill.2d 325, 264 Ill.Dec. 283 (Ill., 2002).

So, I'm sorry to say that the longer Illinois statute of limitations applies in your case. Clearly, the legal aid website that was cited earlier is incorrect (actually, it's incorrect for two reasons: (1) it is inconsistent with the Belleville Toyota case, and (2) it is wrong about Virginia law, as Virginia does not have a 3 year statute of limitations for revolving credit agreements). The bottom line is that the legal aid website is just wrong and should be ignored.

I really wish that I had better news, but the Belleville Toyota case is clearly not in your favor, and the judge in your case is bound by it. I'm sorry.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    19941
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    8189
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/jespoag/2008-12-17_222355_jessepic.jpg JPEsq's Avatar

    JPEsq

    Attorney

    Satisfied Customers:

    2132
    Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor
  • http://ww2.justanswer.com/uploads/gsenmartin/2008-04-22_214950_me1.jpg Guillermo J. Senmartin, Esq.'s Avatar

    Guillermo J. Senmartin, Esq.

    Attorney

    Satisfied Customers:

    110
    7+ years of experience handling various legal matters.
  • http://ww2.justanswer.com/uploads/PA/PaulmoJD/2013-10-10_195858_JAImage.64x64.jpg Law Educator, Esq.'s Avatar

    Law Educator, Esq.

    Attorney

    Satisfied Customers:

    31621
    JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    15975
    Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
 
 
 

Related Legal Questions