MOTION TO Dismiss
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MOTION TO Dismiss

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MOTION TO Dismiss MOTION TO Dismiss Document Transcript

  • MOTION TO Dismiss Join Date: Dec 2007 Posts: 33 Well, the court case is over and I must say, I surprised the heck out of the plantiff's lawyer and the Justice of the Peace. The JP didn't enter a Judgement today because he required a brief from the plantiff's lawyer within 10 days. I guess that is the argument of the plantiff why the foreign SOL should not be used as a defense. After the JP receives the brief, at that time, the JP will make his ruling. The JP was very concerned about my argument and said I had lots of good points. The only thing that I didn't do was make a request for an affirmative defense of Foreign Statue of Limitations. I want to try and get that into the case before a final judgment is made, can't hurt. I have tried all afternoon to find a sample of how to write one of those notifications to the court but to no avail. Can anyone help? Here was my defense which I read: Your honor, I request a “motion to dismiss” for failure of the plaintiff to state a claim upon which relief can be granted because the Statute of Limitations has expired under the laws of the State of Virginia under which the purported agreement was issued. I would like to direct your attention to Exhibit “A” in your packet of documentation a “Capital One Bank” on line glossary of terms under Card Holder Agreement “ Rules for imposing changes vary from state to state, but the rules that apply are those of the home state of the issuing bank, not the home state of the cardholder” This information is available to anyone that chooses to look it up on the internet which by the nature of access becomes general knowledge that the laws of their credit agreement are that of the State of Virginia, the home state of Capital One Bank, N.A. Capital One Bank, represented by their lawyers has filed a Cause to seek monies purportedly owed under a Capital One Bank credit card. In particular, according to the allegations of the Cause, I purportedly entered into a credit card customer agreement with Capital One Bank, a copy of which is purportedly attached to Plaintiff’s documentation. AT THIS TIME, I REQUEST A COPY OF THIS AGREEMENT DULY SIGNED BY BOTH PARTIES AND EVIDENCING THAT IT IS NOT UNDER THE LAWS OF THE STATE OF VIRGINIA !
  • If this is not done, request dismissal due to no proof that agreement existed.) (If this is done, continue to the following) Your Honor, I direct your attention to Page ____________of the purported Customer Agreement provides as follows which states: Applicable Law: This agreement will be governed by Virginia Law and Federal Law. By Virginia Law, this was an Open Account as there was a situation where there had been running or current dealings between the parties and the account had been kept open with the expectation of further dealings. Governing Law: “This Agreement is to be construed in accordance with and governed by the laws of the United States of America and by the Internal Law of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause this application of the laws of any jurisdiction other than the laws of the United States of America or the Internal laws of the Commonwealth of Virginia to the rights and duties of the parties. This Agreement is made in Virginia. It will be governed only by Federal Law and Virginia law (to the extent permitted by Federal Law). Furthermore, the Virginia legislature “ fixed” a specific accrual time for an Open Account. Code of Virginia (1950) 8.01-249(8.) “In actions on an open account, [the accrual period begins] from the later of the last payment or last charge for goods or services rendered on the account.” A copy of the aforementioned statute is in your packet of documentation marked as Exhibit “B”. And, by so doing, and not addressing an Open Account in Code of Virginia 8.01-246, the legislature thereby considers an Open Account to be distinct from a written contract, oral contract, quasi-contract, or implied contract. A copy of the aforementioned statute is in your packet of documentation marked as Exhibit “C”. From information and belief, the last charge for goods and services purportedly made by myself was on or about October 2005 From information and belief, the last payment purportedly made by myself was October 2005. A copy of Experian Credit Report evidencing time of last payment is in your packet of documentation marked as Exhibit “D” Open accounts under Code of Virginia 8.01-246, (4) are subject to a 3 year Statute of Limitations. The latest date to file under this agreement would have been October 2008. This citation was filed on July 23, 2009. If an agreement between the parties is in effect then it is equally binding upon all the parties. Therefore, if they expect me to be bound by the terms and conditions of the agreement then it is only fair that they also be bound to the terms and conditions of the same agreement .
  • They are claiming I broke the agreement by not paying, but if the Virginia laws clause of the contract is not to be enforced by the Texas Court, then the contract is null and void and no part of it can be enforced. Per the agreement, Virginia’s State Law was adopted which created an ambiguity that should be resolved against the drafter of the document by in fact giving the debtor the benefit of Virginia’s SOL. The court would not and could not give the creditor a longer SOL by virtue of the creditor having chosen the Virginia’s state laws in its cardholder agreement-but a shorter one may perhaps be afforded the debtor. If the court is willing I would like to request YOUR HONOR to uphold a time-honored principle of contract law- that ambiguities are construed so as to favor the party that did not write the document and grant a motion to dismiss.