admin

Does payment on an account restart the SOL?

Recommended Posts

Actually, there are 18 states in which payment does not restart the clock (review or extend SOL). The statute of limitations is only extended by new written promise to pay in these 18 states:

Arizona, California, Florida, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New York, Texas, Virginia, West Virgina, Wisconsin.

  • Like 3

Share this post


Link to post
Share on other sites

Admin, where can I find this information in legalize? I am confused about this. I live in Florida but had a bogus CA claim for a local telephone service delequent debt in Virginia. Does this mean I can calim SOL in both states if the debt is more than 4 (FL) or 3 (VA) years? :lol:

Share this post


Link to post
Share on other sites

If you want to look up the exact statutes:

Florida: UCC 95.04 addresses this issue

Virginia: UCC 8.01-229 addresses this issue

Basically, in the states listed above, making a partial payment alone or orally agreeing to pay is not enough to revive or extend the SOL. You must have made a new written promise to pay.

Share this post


Link to post
Share on other sites
Actually, there are 18 states in which payment does not restart the clock (review or extend SOL). The statute of limitations is only extended by new written promise to pay in these 18 states:

I could be wrong, but as I understand it, the promise to pay does not extend the statute of limitations on a time barred debt. Meaning that the debt must be past the statute of limitations (time barred) before you pay it, for it not to reset the SOL.

If I am wrong, please let me know because I have two accounts that I am planning on paying when the SOL runs out. I am going to use it as leverage to remove these CO's.

Share this post


Link to post
Share on other sites

In the legal section, there is a link to all of the state laws. If you go there and look up the SOL for your state, you should find it.

Share this post


Link to post
Share on other sites

Ok, i finally found it but am still confused by a few other things I found but do not fully understand.

I also found this:

600.5831 Accrual of claim; mutal & open account current- in actions brought to recover the balance due upon a mutual & open account current, the claim accrues at the time of the last item proved to the account.

* wouldn't this mean the last payment showing on the account? On my old credit report the item I am concerned about shows last activity as 4/95 this entry is by the actual CA. But I made a few small payments to the CA, I never signed anything in writing. But the last activity always showed the same 4/95.

*************

Also Can you help me figure out what this means?

600.5865- No endorsement or memorandum of any payment, written or placed upon any promissory note, bill of exchange or other writing, by or on behalf of the party to whom the payment was made shall be allowed as evidence of payment for the purpose of barring the running of the period of limitations. This section merely limits the evidence which may be allowed to be given for the purpose of showing part payment which would bar the running of of the period of limitations, and is not deemed to have any control over the effect of part payment .

Does this mean that if they tried to sue me they cannot enter into evidence anny part payment?

PLEASE REPLY.

Share this post


Link to post
Share on other sites

Hi Kristy,

Not to be a pest, but I only counted 17 states in your list above? Please tell me the 18th state is Maryland.... pretty please.... :D

Share this post


Link to post
Share on other sites

I could be wrong, but as I understand it, the promise to pay does not extend the statute of limitations on a time barred debt. Meaning that the debt must be past the statute of limitations (time barred) before you pay it, for it not to reset the SOL.

So essentially, if the debt is 4 years old (and the SOL is 6 years) and you promise to pay, that will extend the SOL? BUT if the debt is time barred and then you pay it, it WON'T begin SOL tolling?

Share this post


Link to post
Share on other sites
So essentially, if the debt is 4 years old (and the SOL is 6 years) and you promise to pay

A "promise" in the context of admin's first post describes a "contract," and a "new contract" at that.

You cannot contract away your statutory rights even if you try to. For that matter, you cannot contract at the 4 year mark to "extend the statute of limitations." Of course, you could sign a contract that states your willingness to "extend the statute of limitations," but that contract would be unenforceable. (not a valid contract)

I believe that the thrust of the first post in this thread is that in 18 states, a mere payment does not imply the formation of a "new promise" or a "new contract" to pay.

In any state other than the 18 mentioned above, a mere payment does imply the formation of a "new contract." The SOL on the "new contract" is 6 years (or whatever the relevant SOL is) from the date that the payment is made.

BUT if the debt is time barred and then you pay it, it WON'T begin SOL tolling?

The answer to that question depends on which state you are in. If you are in one of the 18 states mentioned above, then payment will not create a new SOL because payment does not imply the formation of a new contract.

Share this post


Link to post
Share on other sites
Actually, there are 18 states in which payment does not restart the clock (review or extend SOL). The statute of limitations is only extended by new written promise to pay in these 18 states:

Arizona, California, Florida, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New York, Texas, Virginia, West Veirgina, Wisconsin.

Illinois also requires the promise to pay to be in writing. But a payment will reset the SoL. Kinda half-and-half.

(735 ILCS 5/13‑206) (from Ch. 110, par. 13‑206)

Sec. 13‑206. Ten year limitation. Except as provided in Section 2‑725 of the "Uniform Commercial Code", actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accrued; but if any payment or new promise to pay has been made, in writing, on any bond, note, bill, lease, contract, or other written evidence of indebtedness, within or after the period of 10 years, then an action may be commenced thereon at any time within 10 years after the time of such payment or promise to pay. For purposes of this Section, with regard to promissory notes dated on or after the effective date of this amendatory Act of 1997, a cause of action on a promissory note payable at a definite date accrues on the due date or date stated in the promissory note or the date upon which the promissory note is accelerated. With respect to a demand promissory note dated on or after the effective date of this amendatory Act of 1997, if a demand for payment is made to the maker of the demand promissory note, an action to enforce the obligation of a party to pay the demand promissory note must be commenced within 10 years after the demand. An action to enforce a demand promissory note is barred if neither principal nor interest on the demand promissory note has been paid for a continuous period of 10 years and no demand for payment has been made to the maker during that period.

Share this post


Link to post
Share on other sites

i have posted this in collection, maybe you can shed some light on this situation.

If a debtor stops paying in 2/1996 and the creditor sues May 1, 2000, after he has sold the car in January 17, 1997. Does that payment restart the SoL on that debt even thought the debtor didnt pay the payment? by the way this was a voluntery repo.

The debtor only made 2 payments because the car was a lemon, not to mention he never was served.

can we request a signature from the process server or does he have to have one? He states in his proof of services that he served the person personelly.

The creditor got a judgement back in june 2000 and is now garnishing debtors paycheck.

We are thinking we can go in and ask for the judgment to vacated because he was never served.

We want to know if we have any other recourse.

We are in the California.

I am unclear about does it matter who pays the last payment If that is so all creditors would simply make a payment so they can extend the SoL.

I hope no one get upset for the repeating of this problem. i am just confused and trying to read all i can to see if we can do something about it. I know that you seem to know everything! and back it up with case law or other things.

Share this post


Link to post
Share on other sites

9-3-112.

A payment entered upon a written evidence of debt by the debtor or upon any other written acknowledgment of the existing liability shall be equivalent to a new promise to pay.

This is GA's Rule

Share this post


Link to post
Share on other sites
9-3-112.

A payment entered upon a written evidence of debt by the debtor or upon any other written acknowledgment of the existing liability shall be equivalent to a new promise to pay.

This is GA's Rule

Other pertaining GA Codes that precede and follow rule 9-3-112 are:

9-3-110

A new promise, in order to renew a right of action already barred or to constitute a point from which the limitation shall commence running on a right to action not yet barred, shall be in writing, either in the party's own handwriting or subscribed by him or someone authorized by him.

9-3-112

A payment entered upon a written evidence of debt by the debtor or upon any other written acknowledgement of the existing liability shall be equivalent to a new promise to pay.

9-3-113

A new promise shall revive or extend the original liabilty; it shall not create a new one.

Share this post


Link to post
Share on other sites

For Florida:

Any payment of any kind toward any amount in principle or interest tolls the SoL clock back to zero. You restart it at zero. You just renewed the debt. Don't ever make any kind of partial payment on any defaulted debt.

F.S. 95.051(1)(f)

It applies to 'written instrument' debt. If you can statisfy SoF you meet this test and the standard for SoF is low.

Share this post


Link to post
Share on other sites

Admin is wrong on Florida. A 'promise to pay' past SoL debt must be in writing. That's what F.S. 95.04 is. But if you send in a payment, you just invoked F.S. 95.051(1)(f) and you just reset the SoL to zero.

F.S. 95.04 only protects you from reseting the SoL on a verbal promise to pay if the debt is past SoL.

Share this post


Link to post
Share on other sites
For Florida:

Any payment of any kind toward any amount in principle or interest tolls the SoL clock back to zero. You restart it at zero. You just renewed the debt. Don't ever make any kind of partial payment on any defaulted debt.

F.S. 95.051(1)(f)

It applies to 'written instrument' debt. If you can statisfy SoF you meet this test and the standard for SoF is low.

You are wrong but will allow the "lawyer" types here debate the issue. A judge slammed his gavel and dismissed a case against me by some CA with a bogus debt they claimed against me. The person who had stolen my ID and opened a CC in my name used the card and made a few payments! Weird to say the least, but it happened. I debated at the time to enter evidence to the contrary, but decided that since there had been no 'written instrument' debt I would plead SPL. The Florida judge did not hesitate to dismiss that case w/p.

Share this post


Link to post
Share on other sites
My, doesn't your tone sound familiar, radarbeam....

While I skipped that law degree, opted for an engineering degree, the Florida laws seem to me fairly straight forward. Unless one signs an agreement to pay a CA, or I suppose the OC, then the SOL period ends a certain number of years after the date the CC account went into delinquency..

Share this post


Link to post
Share on other sites

California Code of Civil Procedure

335. The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows:

337.2 Within 4 Years:

An action to recover (1) upon a book account whether consisting of one or more entries; (2) upon an account stated based upon an account in writing, but the acknowledgment of the account stated need not be in writing; (3) a balance due upon a mutual, open and current account, the items of which are in writing; provided, however, that where an account stated is based upon an account of one item, the time shall begin to run from the date of said item, and where an account stated is based upon an account of more than one item, the time shall begin to run from the date of the last item.

337.3

An action based upon the rescission of a contract in writing. The time begins to run from the date upon which the facts that entitle the aggrieved party to rescind occurred.

337.15.1(d)

Nothing in this section shall be construed as extending the period prescribed by the laws of this state for bringing any action.

Share this post


Link to post
Share on other sites
Actually, there are 18 states in which payment does not restart the clock (review or extend SOL). The statute of limitations is only extended by new written promise to pay in these 18 states:

Arizona, California, Florida, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New York, Texas, Virginia, West Virgina, Wisconsin.

New York should not be on this list, the SOL does reset every single time a payment is made. (I understand the post is from 2003 and things may have changed)

Share this post


Link to post
Share on other sites

I have a debt that someone else bought. They are now trying to sue me for the balance. According to my 2005 credit report as well as one recently the balance was $0 with the original creditor. The account was charged off in 2004 BUT I did make $20 a month payments through part of 2008. I also made an offer to the new owner but basically they want the whole balance. And yes I've already been summons and I just answered today.

I'm confused on the wording of SOL in AZ so I'm asking you advice here. Something I see say it's outside SOL other say inside.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.