Just a note on SoL's

Posted by lawguy (68.119.155.69) on March 05, 2003 at 19:58:52:

In Reply to: Re: Thanks for the advice Y'all.....you saved me! posted by Why Chat on March 04, 2003 at 14:47:06:

Just a heads up on determining which SOL to apply.

A SoL is considered a "procedural" law rather than a "substantive" law. A court will normally apply the procedural law of the state in which it sits. So normally, the SoL for the state in which the lawsuit is filed will apply.

However, if the "cause of action" arose in another jurisdiction, then there may be a conflict of laws, and the court will need to determine which law will apply. Typically, the substantive law of the state in which the cause of action arose will apply, and the procedural laws of the state in which the court sits will apply. This includes SoL's.

However, some states have conflict of law rules (which are procedural laws) that will apply the SoL of the state in which the cause of action arose, in certain circumstances.

For example, I practice in West Virginia. The SoL on tort claims in WV is 2 years. However, lets say a tort occurrs in Ohio, but is committed by WV resident against another WV resident. The plaintiff sues the defendant in WV (because the defendant is a WV resident).

Ohio has (I believe) a 1 year SoL on tort claims.

Since the suit is in the WV courts, but the cause of action arose in Ohio, the WV court will apply the Ohio substantive law (tort law) and WV procedural law (including the SoL).

HOWEVER, WV has a conflict of law statute that says that if the cause of action arose in another state, then either the WV or the other states SoL will apply, whichever is shorter.

Thus, in the example given, the Ohio 1 year SoL will apply, because of the WV conflict of law statute.

Now, if you lived in state A when you defaulted on your credit cards, the cause of action arose in state A (although its possible that if the creditor is in another state, the forum state might consider the cause of action as arising in the creditor's state). If you move to state B, and are sued there, then typically state B's SoL will apply (and state A's substantive law, i.e. contract law.) Whether state B applies its own SoL or state A's will depend on state B's conflict of law rules. This could be in favor of a shorter SoL, or in favor of a longer one, depending on the rules.

There are also rules that apply if a suit is brought in one state, then transferred to another for improper venue or forum non convens.

My point is this: Which SoL applies will depend on the choice of law rules for the state in which the suit is brought. It may be, but may also not be, as simple as looking at the forum state's SoL. But, another SoL might apply.

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