Treble charges/sol/dishonored checks CALIF

[virtualrn]

Have some bad checks on my CR from 2002(during a divorce)-How to remove. Are they SOL ? Would pay them but treble charges make it prohibitive.

30] Statutes of Limitations

The following limitation periods apply, after which a court action cannot be filed: (1) action to enforce the drawer's obligation to pay the face amount of a returned check -- three years; #51 (2) action to enforce a statutory service charge -- three years; #52 and, (3) action to enforce a statutory penalty -- one year. #53

d. [ß 31] Judicial Discretion

The court's discretion in administering a statutory penalty award has certain limits. The Legislature has declared that "[t]he requirements of [the Bad Check Law] in regard to remedies are mandatory upon a court." #54 This reflects the key legislative purpose of the statute -- to deter the writing of a check on a bank account that has insufficient funds on deposit to pay it. As one court has said, "[t]he manifest purpose of [the Bad Check Law] is to discourage the issuance of bank checks, drafts or orders when the drawer's funds are insufficient. By increasing the stakes for a defendant it serves as a statutory incentive to refrain from the writing of bad checks." #55

While the court cannot decline to award a penalty if the payee is legally entitled to it, the Bad Check Law does not impose strict liability on the drawer of a check. #56 The drawer can assert the same legal defenses against the payee that can be asserted in other simple contract actions. (See discussion of drawer's defenses at ßß 44-47 below.)

[direred]

If they weren't enforced by 2005, it appears you cannot be sued on them.

[flacorps]

Is that information verbatim from the statute, or is it from someone else's website? The reason I ask is the "after which a court action cannot be filed" language ... a true statute of limitations is virtually never interpreted by the courts in that manner ... rather any court action filed becomes subject to an affirmative defense, which the court won't apply if the defendant doesn't show up and assert it (and which may have a glitch such as tolling or restarting of the limitations period even if asserted [find out what tolls and/or restarts in California]).

Now and then California is one of the states rumored to have a "statute of repose" with respect to debts, but I've never seen anyone come up with actual statutory language or case law (the other states are Wisconsin and Mississippi). Although statutes of limitation are often referred to as being statutes of repose, a true statute of repose replaces the affirmative defense with a facial invalidation of the complaint. In other words, if the date is stale the court should kick the case on a motion to dismiss (or actually, dismiss it on its own, sua sponte) and if somehow a judgment is rendered it would be voidable and subject to being vacated at any time.

True statutes of repose are more frequently applied to product liability, particularly in the aviation area, where many planes flying are older than anyone aboard, and the manufacturer needs to have liability cut off at some point so that they can purchase insurance at a rate that doesn't put them out of business... It's called saving the light plane industry.

So the point here would be not to breathe entirely easy unless you know which type of statute you are armed with, and whether you might find yourself in front of a hostile judge just looking for an excuse to call your SOL defense invalid.

In the latter case your approach to any CAs holding bad checks might need to be a little softer than it otherwise would be.

[direred]

Now and then California is one of the states rumored to have a "statute of repose" with respect to debts, but I've never seen anyone come up with actual statutory language or case law (the other states are Wisconsin and Mississippi). Although statutes of limitation are often referred to as being statutes of repose, a true statute of repose replaces the affirmative defense with a facial invalidation of the complaint.

It does not have one for contracts, though it does seem to for product liability.

As I posted on another board:

Let's say:

Statute of repose is 10 years.

Statute of limitations is 4 years after discovery.

Whoziwhatzit is made 9 years ago and breaks, causing great frou-frou now (the time of discovery). The manufacture WAS defective.

However, even though the SOL would permit Mrs. Whatsit to bring suit for four years from now, the SOR would permit it only for the next year.

(The word "repose" is only mentioned once in the civil code and never in the civil procedures code, fwiw.)

[virtualrn]

Thanks for the replies-I am more bewildered than ever. I thought I pulled those statutes directly from the state but will recheck.Have seen a few things about the Paul Stassino Law Firm listed on my CR when googled. I believe he was subject to a Calif class action suit recently. Apparently he was the lawyer signing his name to multiple CA's collecting treble charges although he was not directly involved in collections. Don't know if that is an approach....And of course, how reliable the info is to be determined......

[fayerising]

Stassinos was sued in 2004, and from what I can determine, he was charging interest as well as service charges and mailing costs and treble damages in that case. He no longer charges interest, but is still charging service charges on top of treble damages.

By the way, thanks for your reply to my thread...It seems to reinforce what I had researched as well regarding the one year statute of limitations. I found that information on a county government website and it clearly stated that pursuit cannot be made after one year. I went ahead and sent a letter to their office in response to a phone call I received from their "attorney investigator" (it has been over seven months since the last contact from them). I had paid the original face value of the check, plus service charges, plus mailing fees, however, due to my forgetfullness, it reached them about a week after the 30 day demand period, so they are going after me for the treble damages. Here are some excerpts from the letter I wrote to them (with the help of my hubby...lol..he's great with the wording):

"Dear Sir:

On May 22, 2007, I received a phone call at my place of employment from ********, an attorney investigator with your office. Mr. ***** stated that your office was pursuing me for treble damages in accordance with California Civil Code Section 1719(a) and that my debt was in excess of $500.00. Mr. ***** also demanded payment be made or I would be pursued in court.

I am writing to dispute this debt and request that you cease any and all pursuit. I am also formally requesting that this debt be removed from my credit report based upon the following information.

On January 16, 2006, I received notification from your office that a check I had written was returned unpaid. I remitted payment to your office in the amount of $145.80 (original face value of the check of $120.80 plus a service charge of $25.00) on February 8, 2006 which, due to unforeseen circumstances, also did not clear. I received your notice dated March 6, 2006 requesting payment in full of $175.67, which included the face value of the check in the amount of $120.80, service charges for both checks in the amount of $25.00 each and mailing costs of $4.87. This notice also stated that payment must be remitted before March 13, 2006 or treble damages would be sought. On April 12, 2006, payment in full was issued in the amount of $175.67.

The amount you are pursing me for is incorrect in accordance with California Civil Code Section 1719(a)(2) which states “When a person becomes liable for treble damages for a check that is the subject of a written demand, that person shall no longer be liable for any service charge for that check and any costs to mail the written demand.” This code section was amended in 1996 to bar multiple recoveries for the same loss.

According to the most recent statement I received from your office, which was dated October 19, 2006 (over seven months ago), the balance due was $332.53, which includes the original face value of the check for $120.80, treble damages of $362.40, and service charges of $25.00 less the payment made on April 12, 2006 of $175.67. Since California Civil Code Section clearly states that, once a person is liable for treble damages, that person is no longer liable for service charges and mailing costs, to pursue me for a debt in excess of $500.00 clearly violates the California Civil Code. In addition, regardless of the delay in receipt of payment by your office, you have been paid in full for the face value of the check and all associated costs. I am not liable for treble damages.

In addition, it appears that your office may be barred from pursuit by the statute of limitations. Per California Code of Civil Procedure 340(, “the periods prescribed for the commencement of actions other than for the recovery are as follows” – “within one year” for “an action upon a statute for a forfeiture or penalty to the people of this state.” Since, based upon your notice dated March 6, 2006, I became liable for treble damages as of March 13, 2006, the statutes of limitation expired on March 13, 2007.

If I am pursued in court by your office, I will file a countersuit for loss of compensation and attorney fees. I am currently researching the filing of a law suit for remuneration for the damages you have placed upon my person for this frivolous claim.

I appreciate your attention to this issue. I eagerly await your response in connection with your continued pursuit or dismissal of this matter. If you have any questions or need further clarification, I can be reached at the address listed above."

Mailed this out on Wednesday, lets see how it goes....

[virtualrn]

Thanks. Same slimey lawyer/law firm/CA? Keep me posted on their respons. Is this on your CR.

[fayerising]

Yes and Yes......I will keep you posted

[fayerising]

Oh,and I forgot, when I first noticed it on my CR, the amount was over $400...I disputed and when I pulled it again a month or so later, the amount went down to $300+-.....?????