Which state law prevails, what is stated in contract or otherwise?

Y

yutubly

New Member
Jurisdiction
Wyoming
So I was looking over my credit card agreement and it states, "the laws of Delaware apply, etc, etc"; in the case of a statute of limitations, is it the laws of the state of Delaware which is stated in the contract or Wyoming state law? I will copy and paste from the agreement here just for more clarification:

" I also acknowledge that there is no agreement between Comenity Bank and me until Comenity Bank approves my credit application and accepts the Credit Card Account Agreement at its office in Delaware and that the Credit Card Account Agreement is deemed to be made in Delaware. Cards are issued and credit is extended by Comenity Bank, Wilmington, Delaware."

Thanks in advance for everyones input on this
 
adjusterjack said:
According to the following article, the contract would have to state that the DE SOL applies and it's obvious that the reason it doesn't is that DE has only a 3 year SOL for lawsuits involving breach of contract and most other states have longer periods.

The Law You Choose to Govern Your Contract May Not Be the Law that Governs - Global Private Equity Watch

Wyoming's SOL is 10 years for written contracts and 8 years for oral contracts so you can bet that the creditor will have the longer SOL available in case you default.
Click to expand...

Sorry, that's all wrong. I blew it by not checking Wyoming law.

Wyoming Code of Civil Procedure - Chapter 3 - Limitations of Actions.
1-3-117. Effect of foreign law. If by the laws of the state or country where the cause of action arose the action is barred, it is also barred in this state.

The credit card contract not only chooses DE law but specifies that the contract is "made" in DE so that any lawsuit brought in WY for its breach should be subject to the 3 year SOL and not WY's longer SOL.

This is certainly to the advantage of the borrower in WY.
 
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It looks as though it can go both ways, after reading the article you provided a link to. At least in the case they cited in the article "Pivotal Payments Direct Corp. v. Planet Payment , Inc." in that instance the court, unless I'm misinterpreting which I probably am, found that Delaware law prevailed because the author of the contract did not include specifics indicating which statute of limitations applies. What are your thoughts?
 
yutubly said:
So I was looking over my credit card agreement and it states, "the laws of Delaware apply, etc, etc"; in the case of a statute of limitations, is it the laws of the state of Delaware which is stated in the contract or Wyoming state law?
Click to expand...

I find it curious that the part you quoted verbatim at the end of your post didn't contain anything of this nature. Anyway...

Choice of law can be tricky. In your case, you should be happy with having Delaware law applied to the SOL issue since the Delaware SOL is much shorter than the Wyoming SOL. If you get sued, you will probably get sued in Wyoming (why would the creditor sue in Delaware since you probably don't have any assets or sources of income there?). A Wyoming court will apply Wyoming law unless one party or the other convinces the court that some other state's laws apply.

Query why you ask.
 
In "Pivotal" the contract was made in DE with NY as the choice of law. The court ruled that the DE SOL applied because the NY SOL was not specified in the contract.

I messed up by not looking up the Wyoming law so I'm changing my original response.
 
yutubly said:
zddoodah,
"Query why you ask." The wife is getting sued is why I ask
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If she's being sued in a WY court, the SOL in WY applies.

If the lawsuit is in Federal District Court, DE laws might apply.

It really doesn't matter if she has an attorney.

If she is operating "pro se", she asserts any defenses she believes applicable.

If SOL is one she believes applies, assert that defense.

If its an issue, the presiding judge will rule.

Unless the amount in question is hundreds of thousands of dollars, small claims has a maximum of $5K.

Don't over think it, its just a debt.

It isn't the trial of the century.

If she has valid defenses, or believes she does, all she needs to do is assert them.

So, help us out here, mate, is the lawsuit in small claims court?

Has your wife been properly SERVED, or merely THREATENED by a debt collection scammer?
 
Army Judge,

She has been properly served and the case is for magistrate court. We don't have money for an attorney. The reason she fell behind is because she was diagnosed with cancer a year and a half ago. She is cancer free now but obviously with medical bills and credit card debt we fell behind. Anyway, not looking for sympathy just letting you know what the deal is.

yutubly
 
mighty moose,

It's a Restoration Hardware credit card with Comenity Bank (I have already read horror stories about Comenity Banks' credit card agreements). I have looked at her agreement, I'm hoping that when we answer the complaint, we can put in there, properly worded of course that the plaintiff does not have the luxury of choosing what state law they want to apply, they need to stick to the original contract which states 'the laws of Delaware'; just fyi she is being sued by a debt collector not the original creditor.



yutubly
 
yutubly said:
Army Judge,

She has been properly served and the case is for magistrate court. We don't have money for an attorney. The reason she fell behind is because she was diagnosed with cancer a year and a half ago. She is cancer free now but obviously with medical bills and credit card debt we fell behind. Anyway, not looking for sympathy just letting you know what the deal is.

yutubly
Click to expand...


Let me be very clear.

I wasn't insinuating you were seeking ANYTHING other than information.
I am not being snarky or sarcastic, either.


By the way, I am licensed to practice law in Wyoming, plus several other states.

Wyoming was the second state that licensed me, shortly after graduation from law school.
I was allowed to sit second chair on a case being tied by someone who became a very good friend of mine, a true legal icon, Gerry Spence.

So, I'll ask again, what is the amount of the debt she is alleged to owe?

Your IP address reveals Idaho as your state.
ID DOES have magistrate courts.


Okay, back to basics, if I may.

The SOL for open ended accounts, ie...credit cards
DE = 3 yrs
ID = 5 yrs
WY = 8 yrs

Why do you think the SOL is relevant?

Statute of Limitations on Debt - State by State Listing

What is the amount of the debt in question?

I'll ask to be clear, is she being sued in ID, and not WY?
 
Army Judge,

I hope my earlier answer to your question did not insinuate that you were being snarky, I'm just trying to check on this for my wife. We are in Wyoming, our home and she is while I'm working in Idaho...so that is where this will all take place. Thanks for your help I'm a very unassuming person and I consider any help big or small to be a favor/gift and will be treated as such,meaning I will make sure my praise for your help is heaped long and tall upon you :) Anyway, I have to go for now so probably won't be back for awhile to answer additional questions or read comments..
 
yutubly said:
Army Judge,

I hope my earlier answer to your question did not insinuate that you were being snarky, I'm just trying to check on this for my wife. We are in Wyoming, our home and she is while I'm working in Idaho...so that is where this will all take place. Thanks for your help I'm a very unassuming person and I consider any help big or small to be a favor/gift and will be treated as such,meaning I will make sure my praise for your help is heaped long and tall upon you :) Anyway, I have to go for now so probably won't be back for awhile to answer additional questions or read comments..
Click to expand...

No worries, I don't do this (volunteer to help people) for anythjing other than personal satisfaction.

The law has been very good to me, and this is one of the ways I can give back.

No hurry on my part, but when you get time, please answer the questions I posed.
 
yutubly said:
Army Judge,

She has been properly served and the case is for magistrate court. We don't have money for an attorney. The reason she fell behind is because she was diagnosed with cancer a year and a half ago. She is cancer free now but obviously with medical bills and credit card debt we fell behind. Anyway, not looking for sympathy just letting you know what the deal is.

yutubly
Click to expand...

If the default was within a year and a half ago then the statute of limitations is not an issue in any state, nor is the choice of law.

Arguing the choice of law will not help you since contract law basics are essentially the same in every state.

There was an agreement to pay, there was a default, there is an amount due. That's pretty much all that the creditor has to prove.
 

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