Which choice-of-law provision applies when there are multiple legal agreements? A consumer residing in North Carolina opens a credit card account with a national bank, &quot;signing&quot; three separate agreements: (1) a cardmember agreement, (2) an online service agreement, (3) an electronic communication consent agreement. The cardmember agreement contains a broad choice-of-law provision stating &quot;This agreement and your account will be governed by federal law, as well as the law of Delaware, and will apply no matter where you live or use this account.&quot; The online service agreement also contains a broad provision stating &quot;This Agreement and its enforcement shall be governed by the laws of the State of New York, without regard to any choice of law provision, except for section 5-1401 of the New York General Obligations Law, which does apply, and shall inure to the benefit of our successors and assigns, whether by merger, consolidation, or otherwise. The account(s), products and services accessed via the Online Service shall be governed by laws of the applicable account agreements.&quot; The electronic communication consent agreement does not contain a choice-of-law provision. Consumer sues in NC district court and wishes to argue a state UDAP violation. While most states have UDAP statutes, they vary in their consumer-friendliness. The unfair act involves non-receipt of paperless billing statements -- which could arguably arise under either of the three agreements. Which state UDAP statute applies?
The provisions of the credit card account agreement will be governed by Delaware law, except to the extent to North Carolina public policy overrides it. The provisions of the online services agreement will be governed by New York law, except to the extent to North Carolina public policy overrides it. The electronic communications agreement will be governed by the law of the place with the most significant connection to any disputed issues arising under it. It could also be considered to be an extension of the online services agreement rather than a separate agreement. UDAP is an acronym referring the state deceptive trade practices acts. The unfair act involves non-receipt of paperless billing statements. Even with this level of detail, I don't believe it is possible to know in advance which of the agreements is implicated and which state's laws will be held to apply (or if the differences between the laws of the candidate states is even material on the issue in question). These issues are decided on a case by case basis when there is a mishmash of facts and the outcomes are not terribly predictable. It also isn't obvious that there is a provision covering the conduct in question in any of the three potentially relevant states. The Delaware Deceptive Trade Practices Act doesn't appear to clearly apply to financial services at all. New York's application to financial services is quite narrow and subject to an exception for conduct in conformity with federal law. A failure to provide an invoice, without more, isn't necessarily a deceptive trade practice at all. All in all, there isn't a straightforward or easy answer to this question that can be reached from the information provided.
What should he do use or not use digital currency on sundays? If I understand correctly, you are asking about a scenario where the parties agree that the governing law will be that of jurisdiction B notwithstanding that the contract, or the relevant part thereof, will be performed in jurisdiction A. If A and B were [in] different countries, the issue could depend on what (if any) international treaties binding both countries provide regarding a conflict of laws. Absent any realistic specifics (enasia and eukaria are not realistic), let's assume that A means the U.S. or is some jurisdiction in the U.S. The contractually chosen law (jurisdiction B) would apply unless doing so contravenes policy restrictions of the jurisdiction where the contract is performed (jurisdiction A). Those policy restrictions could be public policy, legislation, or legislative intent that can be inferred from jurisdiction A's laws. For instance, see Ticknor v. Choice Hotels Int'l, Inc., 265 F.3d 931, 937 (9th Cir. 2011): The law of the state chosen by the parties ... will be applied ... unless ... application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state[.] (citing Restatement (Second) of Conflict of Laws at § 187(b)). Note that discrepancies between A's law and B's law do not necessarily result in a material detriment to A's policy, and it is unclear from your post whether refraining from using digital currency on Sundays would be such case. One would need to ascertain A's public policy and/or legislative intent (if the relevant legislation has been enacted).
My guess is the answer to this question is going to be in your lease. You likely signed a lease that agreed that you would pay accept this practice and spelled out what ever rights you have to challenge the billings. My guess is they are as limited as the courts will allow in Florida. And the only way to ensure access to those records would be to get the court to compel they provide you with the records. Perusal of the Water codes in Florida does not appear to directly engage this practice(I could have missed it). However it appears that there is code regulating the management of electrical limits the billing to no more than the actual costs to the customer of record(probably your real estate management company.) According the the NCSL (This refers to electrical service. I am assuming there is similar language used elsewhere for plumbing, or that the intent of the law is uniformity of these codes in all utility billings. Where individual metering is not required and master metering is used in lieu thereof, reasonable apportionment methods, including submetering may be used by the customer of record or the owner of such facility solely for the purpose of allocating the cost of the electricity billed by the utility. The term “cost” as used herein means only those charges specifically authorized by the electric utility's tariff, including but not limited to the customer, energy, demand, fuel, conservation, capacity and environmental charges made by the electric utility plus applicable taxes and fees to the customer of record responsible for the master meter payments. The term does not include late payment charges, returned check charges, the cost of the customer-owned distribution system behind the master meter, the customer of record's cost of billing the individual units, and other such costs. Any fees or charges collected by a customer of record for electricity billed to the customer's account by the utility, whether based on the use of submetering or any other allocation method, shall be determined in a manner which reimburses the customer of record for no more than the customer's actual cost of electricity. Each utility shall develop a standard policy governing the provisions of submetering as provided for herein. Such policy shall be filed by each utility as part of its tariffs. The policy shall have uniform application and shall be nondiscriminatory (Fla. Administrative Code §25-6.049). Now here is where the 3rd party comes in. The 3rd party is the one levying fees for the management on your landlord. Granted if you follow the strings ill bet you find that the billing company is owned by the same company that owns your rental management firm. So your landlord can collect no more than what it costs to provide you with the service, but part of providing the service is employing this 3rd party utility management firm.
Dale has the right answer, but I'd like to elaborate on why it isn't lawful (as compared to why it would be unlawful). I know it doesn't work that way on line, but it's simpler to think of a credit card as a physical piece of plastic. The bank will have issued this to their customer. It will have a number and an expiry date. You have no way of knowing whether a replacement card has been issued. Even if one has, the customer has authorised you to charge a specific card - you do not have the customer's authorisation to charge a different card with a different expiry date. By guessing the expiry date, you would be making a representation to the bank that the customer has authorised you to charge that card (if it exists), when they have not.
IMHO, your questions reflect several misunderstandings of how the process works. So, with your permission, I will avoid directly answering your questions and instead focus on suggestions how to best help you plot a path forward. Your counterparty has the burden of proof. If your counterparty forged your signature on a contract, then they must prove you signed it or they can not enforce it. In order to enforce the contract, they will need to sue you civilly. Then you can introduce evidence of their forgery at that time. Inform your counterparty you did not sign the contract. Then act accordingly. If your counterparty forged your signature on an extension contract then you should inform them immediately after it has come to your attention. Advise them you have no intention of complying with a contract you never signed. And that if they try to enforce the forged agreement, you will defend yourself "vigorously." Never threaten criminal charges to advance your position in a civil case. This behavior is a crime in itself. It's called extortion. If you want to pursue criminal charges at some point then do it without relating it to the civil case. The police are not your only means of pursuing criminal charges. You can also schedule a meeting with your District Attorney, State's Attorney (whatever that position is called in your state) or your state's Attorney General. In other words, you might want to approach the government's attorney responsible for prosecuting crimes in your jurisdiction. Forget about involving the police. They have given you their position on the matter. Approach the DA or AG office instead. If the DA/AG decides to use the police, she we will make that decision then inform the police how she needs to use their services. Police are wary of being used as leverage in civil disputes. That's probably the reason for their policy decision regardless of whether it's technically justified by the law or not. Your counterparty can't "fix" anything. If they claim you signed a document you did not, they will have to produce that document with your signature on it. This will presumably be your Exhibit A evidence they forged it. Disclaimer: I am a lay person and not an attorney. This writing is no substitute for proper legal advice. If you need help with a specific legal situation please hire an attorney and do not rely on anything I have written here.
All of this is illegal. You do not give a jurisdiction so I will use NSW, Australia as an example but many countries' laws have similar effect. Australian Consumer Law prohibits misleading and deceptive conduct: It is illegal for a business to engage in conduct that misleads or deceives or is likely to mislead or deceive consumers or other businesses. It doesn't matter that what you have said is strictly speaking factual - the way it has been said is likely to mislead or deceive. However, what you are proposing goes further and IMO crosses the line into fraud (s192E of the Crimes Act): 192E Fraud (1) A person who, by any deception, dishonestly: (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty: Imprisonment for 10 years. (2) A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. In addition to the illegality, stealing other people's money is morally wrong by any reasonable standards of morality.
Consumer Protection In addition to whatever the provisions of the contract may be, consumer protection laws will apply to this transaction, and will override any contrary provisions in the contract. There are federal protections, mostly administered by the FTC. The State of California also has consumer protection statutes, the Unfair Competition Law (UCL), Consumer Legal Remedies Act (CLRA), and False Advertising Law (FAL). Contracts may not override these laws except where a specific provision permits such contract terms. Federal Rules The official FTC page &quot;What To Do If You’re Billed for Things You Never Got, or You Get Unordered Products&quot; states: The federal Mail, Internet, or Telephone Order Merchandise Rule applies to most things you order by mail, online, or by phone. It says: Sellers have to ship your order within the time they (or their ads) say — that goes whether they say “2-Day Shipping” or “In Stock &amp; Ships Today.” If they don’t give a time, they must ship within 30 days of when you placed your order. If there’s a delay shipping your order, the seller has to tell you and give you the choice of either agreeing to the delay or canceling your order for a full refund. If the seller doesn’t ship your order, it has to give you a full refund — not just a gift card or store credit. ... Disputing credit card billing errors within the 60-day dispute period By law, you have to dispute a credit card billing error in writing within 60 days of the date that the first statement that has the billing error was sent to you. Otherwise, you may get stuck with the bill. ... Disputing credit card billing errors after the 60-day dispute period ends What if you agreed to delivery on a date in the future that turns out to be more than 60 days after your statement showing the charge was sent to you — but the delivery didn’t arrive or you rejected it because it was not what you agreed to purchase? Can you still dispute the charge? You’re likely outside the protection of the Fair Credit Billing Act. Still, some credit card issuers may extend the 60-day dispute period when a shipment is delayed. Send a dispute letter to your credit card company. Include copies of any documents showing the expected and actual delivery dates, including any notice the seller sent you about the shipment delay. See also the official &quot;Business Guide to the FTC's Mail, Internet, or Telephone Order Merchandise Rule&quot; The actual Federal Mail, Internet, or Telephone Order Merchandise Rule is at 16 CFR Part 435; relevant parts of this rule provide: (435.1 (b)) &quot;Prompt refund&quot; shall mean: (1) Where a refund is made pursuant to paragraph (d)(1), (d)(2)(ii), (d)(2)(iii), or (d)(3) of this section, a refund sent by any means at least as fast and reliable as first class mail within seven (7) working days of the date on which the buyer's right to refund vests under the provisions of this part. Provided, however, that where the seller cannot provide a refund by the same method payment was tendered, prompt refund shall mean a refund sent in the form of cash, check, or money order, by any means at least as fast and reliable as first class mail, within seven (7) working days of the date on which the seller discovers it cannot provide a refund by the same method as payment was tendered; (§ 435.2) ... it constitutes an unfair method of competition, and an unfair or deceptive act or practice for a seller: (a) (1) To solicit any order for the sale of merchandise to be ordered by the buyer through the mail, via the Internet, or by telephone unless, at the time of the solicitation, the seller has a reasonable basis to expect that it will be able to ship any ordered merchandise to the buyer: (a) (1) (i) Within that time clearly and conspicuously stated in any such solicitation; or (a) (1) (ii) If no time is clearly and conspicuously stated, within thirty (30) days after receipt of a properly completed order from the buyer. Provided, however, where, at the time the merchandise is ordered the buyer applies to the seller for credit to pay for the merchandise in whole or in part, the seller shall have fifty (50) days, rather than thirty (30) days, to perform the actions required in this paragraph (a)(1)(ii). (a) (2) To provide any buyer with any revised shipping date, as provided in paragraph (b) of this section, unless, at the time any such revised shipping date is provided, the seller has a reasonable basis for making such representation regarding a definite revised shipping date. (a) (3) To inform any buyer that it is unable to make any representation regarding the length of any delay unless: (a) (3) (i) The seller has a reasonable basis for so informing the buyer; and (a) (3) (ii) The seller informs the buyer of the reason or reasons for the delay. (a) (4) In any action brought by the Federal Trade Commission, alleging a violation of this part, the failure of a respondent-seller to have records or other documentary proof establishing its use of systems and procedures which assure the shipment of merchandise in the ordinary course of business within any applicable time set forth in this part will create a rebuttable presumption that the seller lacked a reasonable basis for any expectation of shipment within said applicable time. (b) (1) Where a seller is unable to ship merchandise within the applicable time set forth in paragraph (a)(1) of this section, to fail to offer to the buyer, clearly and conspicuously and without prior demand, an option either to consent to a delay in shipping or to cancel the buyer`s order and receive a prompt refund. Said offer shall be made within a reasonable time after the seller first becomes aware of its inability to ship within the applicable time set forth in paragraph (a)(1) of this section, but in no event later than said applicable time. There are further provisions which deal with the situation where a delayed order is further delayed, and what consent the buyer may have already given to any delay. In short, where the seller is unable to meet its estimated time for shipment of the order, the seller must promptly inform the buyer, in no case later than the original estimated shipment date, and must offer an option to cancel the order. Unless the buyer explicitly consents to the delay (definite or indefinite) the seller must send a prompt refund, which means within 7 working days. No contract purporting to waive or modify these rights is valid or enforceable on these points, although if the initial order explicitly states that the date of shipment is indefinite, and the customer agrees to this, no shipment date can be enforced under this rule. California Laws California Civil Code section 1723 requires that a retail store selling goods allow returns or exchanges for at least 7 days, or else prominently post its actual policy. But that does not apply to goods ordered for later delivery. The California Business and Professions Code section 17500 makes it unlawful for: any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this state, or to make or disseminate or cause to be made or disseminated from this state before the public in any state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, including over the Internet, any statement, concerning that real or personal property or those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading This would include advertising a shipment date which was not reasonably achievable, and which the seller knew or should have know was likely not to be met. The California Civil code section 17770 makes unlawful: (10) Advertising goods or services with intent not to supply reasonably expectable demand, unless the advertisement discloses a limitation of quantity. This may not apply to the fact pattern described in the question, depending on what the seller knew and when.
The standard of care to determine documents are accurate varies. For example, in an ordinary notarized document, notarizing the signature of an imposter will ordinarily only impose liability on the notary for harm caused by the fraudulent imposter signing, if the notary is negligent, i.e. fails to use the reasonable care of a similarly situated notary. But, suppose that instead of a notary, the imposter uses a fake ID to get a bank to confirm his identity as part of a &quot;guaranteed signature&quot;, which is a parallel system of confirming people's identities arising from an industry organization and mostly used to confirm identity in life insurance payouts and other non-probate transfers (e.g. pay on death bank accounts). In the bank that guarantees the signature is duped, the bank has strict liability without regard to fault to the party that is harmed by the imposter's bad signature. In the case of fake signatures on checks, there is an elaborate web of statutes in Articles 3 and 4 of the Uniform Commercial Code and some related federal regulations, but basically, it boils down to the harm from a forged check falling on the person who dealt most closely with the imposter. The standard for a Fake IDs used to get alcohol is particularly tricky because rather than flowing from a common law rule, it usually depends upon the exact language of a liquor regulation statute and related regulations, so it is often non-uniform. There is not a general rule governing this situation and that situation is very common in American law. More often than not, you can not determine the correct answer to a legal question by simply applying a general rule to a new situation. Law is not physics.