After reading a 9th Circuit Court of Appeals decision issued yesterday, I’ve been struggling. There’s an important legal issue to discuss, but at the same time, I’ve been struggling with the title. I wanted to use a title that was little kitschy, because after all, that’s what makes a blog even moderately entertaining and worth visiting. I think. I also thought the issue justified my resorting to something profound. Something that makes the reader go “hmmm…so true.” Then, there’s a part of me that just wants the decision to speak for itself. So here goes.
In July 2001, Robin got a Providian credit card. The terms of the account – on that slip of paper that people have a tendency not to read required that it be governed by New Hampshire law. If you have not heard of Providian, spend some time on the net searching them out. You’ll get the sense that they weren’t a particularly consumer-friendly company, unless your idea of being consumer-friendly is only to pretend to be friendly. But I digress.
She defaulted on the card in November 2001. We don’t know why she defaulted. Don’t know if it was a lost job. A health matter. Don’t know if she was just being irresponsible. We just don’t know and I cannot assume what I do not know (and what’s not discussed in the decision). Her bill was about $3,000 with an interest rate that was high enough to be flirting with 25 percent. The New Hampshire statute of limitations on credit cards is three years.
In December 2004, more than three years later, Robin received a letter from a debt buyer attempting to collect the debt. The debtor buyer than sued her. After that suit was voluntarily dismissed, she sued the debt buyer claiming violations of the Fair Debt Collection Practices Act for attempting to collect a debt that was time-barred.
About that New Hampshire Thing..
Apparently the New Hampshire statute of limitations is “tolled” when the defendant is out of the jurisdiction. In other words, if a defendant is absent from New Hampshire when the default occurred – or at any time thereafter, that time is excluded from the time computation measuring the deadline that the action must be brought. Perhaps better described: the clock stops ticking until the defendant is back in the Granite State.
Robin does not live in Massachusetts where she could sit on this side of the border and thumb her nose at the New Hampshire bank. She does not live in near the splendor of the Green Mountains in Vermont. She does not live in Maine where moose have been known to run amok (from what I hear). She does not even reside in this time zone. According to the decision, “at all relevant times” Robin lives in Oregon (which I understand is quite lovely this time of year… but I again digress).
The Court of Appeals ruled that the debt was not time barred because the New Hampshire statute of limitations was tolled (i.e., the clock was not running) while she was not in New Hampshire. Robin lost her FDCPA claim.
Now, there may be a good reason why New Hampshire has this tolling provision. History might a reveal a tendency for defendants to come to Massachusetts, where they then say “come and get me” and avoid living up to their responsibilities. Perhaps there is something more poignant behind it, like the law was enacted in response to the actions of a scoundrel who fled the state and hid for years after causing unconscionable damages that he or she could never be found legally responsible for…only because he was out of New Hampshire just long enough. But “at all relevant times” Robin was living elsewhere. Not in New Hampshire. That’s what makes my head hurt.
So in coming up with titles for this, I thought about using something kitschy: ‘A Legal Reason to Summer at Lake Winnipesauke.’ But I thought it might be perceived as an article with travel tips. I thought this would invoke a chuckle or two: ‘Go see the White Mountains, and Stay for the Statute of Limitations and Pie.’ But after I kicked it around for a while, I still cannot tell if that one is funny, offensive or both.
I then thought something more profound was better: ‘Unintended Consequences: The Perils of Credit Cards in the United States.’ That one sounded a tad dire. Or ‘Another Good Reason Why it is Natural to Hate Providian’ which runs pretty close to this one: ‘Do Other Credit Card Companies Know What Providian Did?’ Those are humorous, relevant but perhaps lacking the “profound.” There is also the ever-relevant: ‘Here’s Another Reason Why You Actually Need to Read Credit Card Agreements.’ As you can tell, I went with that one.
However, the one that still echoes in my head is far less wordy. It might be profound. It’s arguably kitschy. It’s the thought a respected colleague shared with me when he brought this peculiar case and result to my attention late yesterday afternoon. He said simply: ‘What the …..!?’ I contemplated using that as a title, but I eventually thought better of it.
Here’s the decision:
Avery v. First Resolution Management Corporation
Related posts:
- You and Your Credit Card Terms: What You Don’t Know may Bite the Ones You Love.
- Now… About Those Secrets that the Credit Card Companies Don’t Want You to Know
- Lighthouse Credit to Settle with FTC
- I Have a Bone to Pick with a Credit Union
- Another Reason Why Going Pro Se is a Bad Idea
Tags: Credit and Debt, credit card, FDCPA, Providian, Statute of Limitations