Hello: This is PhillipsEsq. I am a licensed Attorney and I will be assisting you today.
A collection agency purchased a credit card debt of mine from Bank Of America In February 2012. The contract was signed with B of A in California, the debt occurred in California, and the statute of limitations on that debt in California expired August 3, 2013.
This collection agency dated their summons in Colorado July 27, 2013 (Saturday) one week to the day before the statute of limitations ran out in California. I do now reside in Colorado half the time. I still consider myself a resident of California. However I have a Colorado driver license. Yet I own a home in California and not in Colorado. My husband was sent here on temporary assignment. He lives here full time now, but I don't. On July 27th, I was in California and had been for 5 months. I returned on August 1st, 2013 and was not served the summons until August 22, 2013. The collection Agency officially filed the case with Jefferson County on September 9th, 2013.
More than a month after the statute of limitations ran out in California. Now the state of Colorado has the borrowing statute 13-82-110, CRS 2008. That prohibits this agency from coming after me due to California statute of limitations running out. My question is and I need the answer to be clear and simple to understand, can or does this collection agency have any leverage at all just because the date of July 27, 2013 on their summons?
Response 1: No, because what counts is the date the lawsuit was filed with the right Court, which would be the Superior Court in the County that you reside in California.
Their summons was not served until August 22, 2013, The case was not filed by them until September 9th, 2013. The collection agency states that Colorado statute of limitations applies. How is that true?
Response 2: It is not because you are not a resident of Colorado. You are a resident of California, but temporarily staying in Colorado. Also and more importantly, most credit card agreements would provide which state's Statute of Limitations would apply. They would specify the GOVERNING LAW FOR THE CONTRACT. The Statutes of Limitations is always the Limitations period of the State where the consumer signed the contract. However, Courts construe the Statute of Limitations liberally in favor of the consumer. So, if you are both a resident of California and Colorado, the Court would use the Statute of Limitations of the State that is most favorable to you. This would be Statute of Limitations for California.
The debt collector most be forced to produce the original credit card agreement with your signature which provides amongst other things venue for suits relating to the credit card agreement and applicable Statute of Limitations—the GOVERNING LAW FOR THE CONTRACT.
Motion to Dismiss must be filed for lack of jurisdiction and running of Statute of Limitations.