California statute of repose

[Big Time]

Isn't California's statute of limitations a statute of repose that extinguishes a debt one the SOL is up?

I can't find the specifics about debt and SOR in Cali.

[IHateCAs]

You can't find it because it doesn't exist.

[thomassl]

Mississippi and Wisconsin are the only states that do not permit collection/contact after the State of Limitations has passed.

[Big Time]

bah!

[Big Time]

I finally came across these snippets i copied from AOC a couple of years ago.

The statute of repose in California is the applicable statute of limitations:

Quote:

Applicable Statute of Limitations

Cortez v. Vogt 52 Cal. App. 4th 917; 60 Cal. Rptr. 2d 841; 1997 Cal. App. LEXIS 98; 97 Cal. Daily Op. Service 1003; 97 Daily Journal DAR 1409

SteveR:

SOR="Statute of Repose". A statute which, once the SOL has run, extinguishes the debt and any responsibility therefore. (The debt is treated as if it never existed.) So, check your state law, since, in your case, the SOL has run; I think that CA does have a SOR! Double check that, though. If CA does have one, then attempting to collect the debt is a "no-no", since it would no longer exist

A statute of repose extinguishes all manner of rights and claims to a debt, meaning the debt no longer exists. Since the debt no longer exists, it cannot be collected and also since it no longer exists, there is no permissible purpose since there is no debt to collect.

Based on the US Supreme Court ruling and several rulings by state supreme courts, your state's statute of limitations is probably also a statute of repose, if it is worded like this:

Quote:

Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared

California

Applicable Statute of Limitations

Cortez v. Vogt 52 Cal. App. 4th 917; 60 Cal. Rptr. 2d 841; 1997 Cal. App. LEXIS 98; 97 Cal. Daily Op. Service 1003; 97 Daily Journal DAR 1409

And then there is this I snagged from an old Towerrat post:

"The Supreme Court of the United States in Shepard v. Thompson, 122 U.S. 231,(1887.) uses

this language: "The statute of limitations is to be upheld and enforced, not as resting only

on a presumption of payment from lapse of time, but, according to its intent and object, as

a statute of repose. The original debt, indeed, is a sufficient legal consideration for a

subsequent new promise to pay it, made either before or after the bar of the statute is

complete. But, in order to continue or revive the cause of action after it would otherwise

have been barred by the statute, there must be either an express promise of the debtor to

pay the debt, or else an express acknowledgment of the debt, from which his promise to

pay may be inferred. A mere acknowledgment, though in writing, of the debt as having

once existed is not sufficient to raise an implication of such a new promise. To have this

effect, there must be a distinct and unequivocal acknowledgment of the debt as still

substituting as a personal obligation of the debtor."

The US Supreme court decided what a SOL was meant for 120 years ago.

[Big Time]

http://www.uniset.ca/lloydata/css/52CalApp4th917.htm

THERE IS THE ENTIRE CASE, BUT i'M TOO TIRED TO CHECK IT RIGHT NOW...

why am I yelling?

[Ahntara]

Wouldn't it be nice if this was so...

TowerRat was quite the legal eagle and eager to battle with CRA's and CA's. You MIGHT be successful in a suit using this theory and siting these examples and get specific TL's removed (or halt collection activity). But don't realistically expect anything else to change.

Just for S & G's. Have any MI or WI residents halted collection activity or gotten accounts removed from their CR's by using SOR? Just wondering if it works in the real world...

[Big Time]

I was thinking of using them more as a defense against JDB's who sue for very old debts and claim that even if a debt is SOL, that just means they can't sue, but can still try to collect because you still technically owe it.

There has to come a time when you just don't owe it anymore, even if you never paid.

Ut sit finis litium "So there might be an end of litigation" is an old legal maxim that is often used to describe the importance of SOL and SOR's.

[Big Time]

That case law has to do with something called the Uniform Fraudulent Transfer Act, which I've never heard of.

... provide(s) in part that an action by a creditor against a debtor for relief against a transfer or obligation under the UFTA is extinguished unless the action is brought "within four years after the transfer was made or the obligation was incurred."

I can't figure out how to make that relevant to a debt that was just never paid.

[Big Time]

Subdivision © of section 3439.09 provides that notwithstanding any other provision of law, a cause of action with respect to a fraudulent transfer is extinguished if no action is brought or levy made within seven years after the transfer was made.

In its entirety, section 3439.09 reads:

"A cause of action with respect to a fraudulent transfer or obligation under this chapter is extinguished unless action is brought pursuant to subdivision (a) of Section 3439.07 or levy made as provided in subdivision ( or © of Section 3439.07 *fn8

"(a) Under subdivision (a) of Section 3439.04, within four years after the transfer was made or the obligation was incurred or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant.

"( Under subdivision ( of Section 3439.04 or Section 3439.05, within four years after the transfer was made or the obligation was incurred.

"© Notwithstanding any other provision of law, a cause of action with respect to a fraudulent transfer or obligation is extinguished if no action is brought or levy made within seven years after the transfer was made or the obligation was incurred."

Talk about confusing.

[cracrap]

in following ur logic , it seems to me that ur saying then, that all states would have a statue of repose just based on the fact that they have a sol...and yet only 2 states have it ..perhaps the argument could be made that all states have it based on the sol in a roundabout way.. but they dont have a specific statute named the "statute of repose"

dude,if ur in small claims for this in socal, it would be a pro-tem, and most of them dont know their a$$ from a hole in the ground!! i would use it and watch the bewildered look on their faces!! oppposing counsel wouldnt know how to respond because they wouldnt have any time to do the research....

also throw in counterclaims because it gives the illusion that u were the agrieved party and not the other way around..

[cracrap]

You MIGHT be successful in a suit using this theory and siting these examples and get specific TL's removed (or halt collection activity). But don't realistically expect anything else to change.

no t.l. deleted as injunctive relief is provided in court

but maybe as part of a settlement for their "grevious violations"??

[direred]

In short the UFTA permits a creditor to recover debtor's assets that were conveyed so that the creditor didn't get them.

In other words: if the debtor gave money to his family to hold for him and therefore the creditor couldn't seize them from the bank account, the creditor could make a UFTA claim against the family member(s) for return of the property.

It doesn't seem like something a debtor can use against a creditor.

ETA: according to the judge who was my legal research prof, there is no general case statute of repose in California.

[cracrap]

but it would still make for a good argument though in court because opposing counsel would still have to be able to defend against it..and u know how our judges can be...especially pro-tems

[IHateCAs]

Look up the annotated statutes for your state. In any state I've ever researched SOLC for, one of the first case cites shown is one citing that the SOLC does not discharge the debt.

For example, here is the very first case cite under Georgia 9-3-24

This section merely affects the remedy, and is not discharge of debt.

Langston v. Aderhold, 60 GA. 376 (1878)

[Big Time]

in following ur logic , it seems to me that ur saying then, that all states would have a statue of repose just based on the fact that they have a sol...and yet only 2 states have it ..perhaps the argument could be made that all states have it based on the sol in a roundabout way.. but they dont have a specific statute named the "statute of repose"

.

That's what the supreme court case seems to say.

As usual, I got it from an old Towerrat post from the archives:

http://www.infinitecredit.com/forums/aoc-archive/1588-towerrat-experts_-need-help-re_-statute-repose.html

If you read the whole thread, the ultimate conclusion I come to is that nobody has ever really tried to actually use it.

It wouldn't stop me from trying, forcing the bad guys to come up with another U.S. Supreme Court ruling that contradicts it.

[Big Time]

It doesn't seem like something a debtor can use against a creditor.

I didn't see any way to use it for that, either.

The question is, would the conclusion that the U.S. Supreme Court made 120 years ago be enough to trump state laws?

I guess it depends on how good you argue the point.