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On the Bank of America credit card agreement it says that all laws governing this contract are in Delaware.

Colorado Springs, CO |

I have read a case were a Bank of America's case was dismissed, because the defendant claimed that the credit card contract explains that Delaware state laws govern the contract. It was a case in California. The Delaware sol had expired on the debt and the defendant won, because the contract on Bank of America cards says,

Any account opened in response to this application shall be governed by the laws of the State of Delaware

The contract for Bank of America credit card clearly says that the laws governing this contract are the laws of Delaware.

Also, the sol on credit card debt in Colorado is not 3 years it is 6 years. I confirmed this the attorney generals office and I also confirmed this through 5 different attorneys.

The c.r.s says that the sol on contracts is 3 years EXCEPT, for unliguidated and liguidated debt, with a determinable amount, and in that case the sol is 6 years.

Attorney Answers 2


There are a couple of issues you need to check out vis-a-vis Colorado and the Delaware contract situs.

1. Is Colorado a choice-of-law state? If not, Colorado will apply only Colorado law to the contract, with the exception that Colorado will not be able to apply its usury cap (or any other federally pre-empted laws), per the Supreme Court's Marquette decision.

2. Does Colorado view statutes of limitation as substantive law or procedural law? If it's the latter, Colorado will apply its own statute of limitations regardless. But courts increasingly have been viewing statutes of limitation as substantive law, which would mean that if Colorado is a choice-of-law state, the Colorado court should apply Delaware law.

Good luck.

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I am not quite sure what your question is but in general there are certain premises we are wotrking with here that are uniform across most states:

1. A contract is generally held against the drafter so far as any ambiguities are contract interpretation is concerned. In other words, if B of A chose Delaware as their forum, they will probably not be heard to complain that you are in Colorado and its Statute of Limitations grants them more favorable terms.

2. When entering into contracts, parties are free to negotiate whatever terms they like so long as such terms do not violate public policy. In thsi case, chossing the forum and choice of law - here Delaware, is not against public policy, so would probably be upheld unless to do so would create a grave injustice. In the current climate, it is less likely many judges will have much sympathy for B of A.

3. Regardless of what I have said here, B of A will either sue you in Colorado or Delaware, and if you do not retain competent counsel in the proper jurisidiction, your chances of prevailing will diminish. So, if you go down the path it seems you are treading, be sure to hire a good attorney. Good luck!

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