[DarkSergeant]

Posted this one over on the Creditnet boards as well:

Okay - I'm active duty military, and stationed in Ohio now. There are suck a$$ debtor laws here, so I'm trying to avoid them. I'm orginally from Alabama and will be moving to North Carolina on March 14. North Carolina and Alabama both have more favorable laws to debtors than does Ohio.

My question is - what determines residency - and how does this residency relate to my debts?

Specifically - if I obtained credit in Ohio, while a legal resident of the state of Alabama, will this debt fall under Ohio laws or Alabama laws? I know how it relates so far as taxation and voting - I am able to remain an Alabama resident while on active duty for these purposes. But how does this apply to credit?

Alabama residency argument in my favor:
Registered to vote in the state of Alabama.
Maintained Alabama Drivers License with Alabama Address.
Maintained Military Home of Record in Alabama.
Paid Alabama State Taxes.
Maintained Alabama Vehicle Registration through January 2007.

To my disadvantage, the Ohio argument:
Have a vehicle registered in the state of Ohio. (Only 2007 to current)
Legally married in the state of Ohio. (Only 2007 to current)
Maintained vehicle insurance in accordance with Ohio state laws.
Obtained credit while in the state of Ohio.
Received bills or other materials relating to debts to Ohio addresses.
Obtained a lease for rental in the state of Ohio.
CRAs have Ohio addresses as most current and second most current on file.

It would seem to me, that I could have an argument that I am currently and have always been a resident of the state of Alabama - at least in regards to LEGAL matters. I think at worst, you could say that I established residency in Ohio in 2007 when I was married here and filed for vehicle registration, but did I actually do this when I came in 2005 and obtained a lease?

[hannah]

Ok. The way I understand it you have to declare a legal residence or domicile. This is the place you pay taxes, vote, and register your vehicles. It does not have to be the state you are actually in. It is the state where a military member intends to return to and live after discharge or retirement, and which they consider their "permanent home."

So it looks like with the exception of vehicles registered in Ohio, you are a resident of Alabama. I would clarify this with the military just to be sure that you are.

Am attaching a copy of the SCRA for your perusal. If you are active military, you can also go to your JAG officer for help although I've been told this may not be to your advantage career-wise.

[DarkSergeant]

Well, I'm pretty sure JAG still falls under attorney-client confidentiality, but I'll check about that before going that route.

I'm also absolutely positive - at least in relation to legal issues - that I am a resident of the state of Alabama. I've never paid Ohio state taxes or maintained an Ohio Drivers License, an my military home of record - the "permanent home" is in Alabama. I'm not sure how this relates to credit or civil issues.

In regars to SCRA, I think it primarily refers to to protection of rights to those who are deployed. I'll have to do a full reading tomorrow morning with fresher eyes.

My primary question though is - would a creditor have the ability to opt for Ohio credit laws, specifically the Ohio statute of limitations, if at the time I had a creditor-debtor relation to them I was (an am currently) a legal resident of the state of Alabama?

Secondary question under this (and an important one) - If I put an Ohio address on the application and received billing or other debt related materials, or incurred debts making purchases in Ohio - does this make the account subject to Ohio credit laws? (Or, even more adversely - though far fetched - could it make me somehow a commitor of mail fraud??)

Third question - If I do find that this account falls under Alabama credit laws, am I under any obligation to notify the creditor as I'm sure they're relying on Ohio statute of limitations for leverage?

[Hedwig]

There's a difference between residency and domicile. Residency is the state where you legally reside, and are only away from the state because of military duty. Your domicile is where you actually live.

Your legal residence will remain Alabama until you decide to change it, or until you leave the military, at which point the Soldier's and Sailor's Civil Relief Act no longer protects you. So, when you move to NC you will become domiciled in NC.

Here's the kicker--this only applies to you, not your wife. I can tell you that in NC, any vehicles will need to be in your name only to legally keep the Alabama registration. Your wife can become a resident of Alabama and get an Alabama Driver's License, or she can become a NC resident. She won't remain an Ohio resident.

That's good and bad. If she's on the credit cards, and she lived in Ohio when you married, she's still an Ohio resident, and I don't know how that will affect the move. If she isn't on the debt, once you leave domicile in Ohio, the Ohio laws shouldn't apply.

Yes, the JAG office will maintain an attorney-client confidentiality, but they can't help you in all civil matters. They can, however, give you advice on such things as residency and possibly some advice on the credit issues. But remember that they are not civilian attorneys and may not know all the ins and outs of the state laws.

Unless things have changed a lot, what I've told you about NC applied to military and spouses when I was there.

I still think your best bet is to check with JAG. If they can't help you, they'll direct you to someone who can.

Good luck!!

[DarkSergeant]

Thanks for the advice. I'll check with JAG once I get to my next duty station. Unfortunately here I'm on independent duty, and JAG isn't really an option at least so far as sitting down with someone in a timely manner.

I realize that you are not offering legal advice, I'm only looking for your opinion on the matter. I'm still very much in the education phase (as I'm sure you can tell by my post numbers) and this is all very fascinating to me. Additionally I also realize have special circumstances (hopefully to my advantage).

On the domicile vs. residency argument. I just did a quick few searches, and now I'm a bit confused. I've read in some definitions where a 'domicile' was a permanent home, and person may have multiple 'residences' -- where as others say that 'domicile' is the intent

Here are the questions I have now:

My state of domicile determines which credit laws apply?

When I move to a new state, the credit laws of the new state now apply to me (for good or bad)?

I can no longer be held liable under the laws of the state in which the debt was incurred?

As you can imagine, this is very important since I'll (potentially) go from having 3 1/2 years remaining on their SOL to file according to Ohio law ... vice only about 6 months from NC or Alabama SOL for open accounts (which applies to CC charge-off debt, yes? )

If I can go over SOL, obviously - I'll have a much better bargaining tool in dispute, PFD, since there will be no legal recourse against me.

[hannah]

Originally Posted by DarkSergeant

Here are the questions I have now:

My state of domicile determines which credit laws apply? Yes.

When I move to a new state, the credit laws of the new state now apply to me (for good or bad)? Not if you are domiciled by the military in another state.

I can no longer be held liable under the laws of the state in which the debt was incurred? Only if this is the state in which you are domiciled by the military.

As you can imagine, this is very important since I'll (potentially) go from having 3 1/2 years remaining on their SOL to file according to Ohio law ... vice only about 6 months from NC or Alabama SOL for open accounts (which applies to CC charge-off debt, yes? ) I don't understand the question.

If I can go over SOL, obviously - I'll have a much better bargaining tool in dispute, PFD, since there will be no legal recourse against me.

Correct.

You need to call your command and see what state you are domiciled in. If it is still Bama, then that is where you are domiciled. Military law doesn't care what the other states credit laws are only the state the military member is legally domiciled according to their records. You should also see if you can obtain a notarized copy of those records from the military for evidence of it. Unless you legally changed your domicile, you are still a legal resident of Alabama.

[DarkSergeant]

Okay, thanks! I think you've answered my questions - and I think I got a bit in the weeds regarding the definition of domicile vs. resident.

I am domiciled by the military to the state of Alabama. It is my official home of record. I can EASILY obtain thorough documentation to support this.

Clarifying, therefore, regardless of where I was in residence when the debt occured, the laws of my state of domicile apply.

With that said re: my other post on a collection of a charge off from 10/05 - I should validate the debt if possible through the CA and if they provide - confirm my date of delinquincy never to recover was on or about 6/05. If they can't provide - even better.

Then, on the 3 year mark, I can full cease & desist Arrow to hopefully *encourage* them to bring litigation/violate FDCPA by continuing collection practices and either let them run up infractions and/or attempt to bring suit (since I'll have affirmative defense)?

So how do I keep them from reporting TL after my SOL? Settle for Delete would be best action I guess.

Okay - to the FDCPA, how does it relate to the SCRA?

FDCPA says:

(2) in the case of an action not described in paragraph (1),
bring such action only in the judicial district or similar
legal entity—
(A) in which such consumer signed the contract sued
upon; or
(B) in which such consumer resides at the commencement
of the action.

So does that give Ohio presidence again? And if so, can I site SCRA and claim Alabama SOL in Ohio? How is there a 'signed upon contract' on an open-ended account?