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"Defendant avers that this claim is prescribed and time barred"?


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My answer from my attorney to the attorney working for the CA8-). Anyone have any idea what this means? Something about not having made a payment in 3 years, (and no this is not the same as SOL).

I am in New Orleans, LA. It is amazing I was able to pay anyone anything in December of '05, (right after Katrina). But anyway, has anyone ever heard of this?

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While I have never seen this in a pleading, avers in the law means to assert formally as a fact.

Prescribed means to assert a right or title to something on the grounds of prescription.

Grounds of prescription in creditor/debtor relations:

The prescription which has the effect to liberate a creditor, is a mere bar which the debtor may oppose to the creditor, who has neglected to exercise his rights, or procured them to be acknowledged during the time prescribed by law. The debtor acquires this right without any act on his part; it results entirely from the negligence of the creditor. The prescription does not extinguish the debt, it merely places a bar in the hands of the debtor, which he may use or not at his choice against the creditor. The debtor may therefore abandon this defense, which has been acquired by mere lapse of time, either by paying the debt, or acknowledging it. If he pay it, he cannot recover back the money so paid, and if he acknowledge it, he may be constrained to pay it.

So it says to me that "Defendant avers that this claim is prescribed and time barred" means that the creditor suing you did not sue you in a timely manner or did not acquire the debt before it was time-barred and thus the creditor cannot collect due to negligence on the creditor's part.

My 2¢.

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Thanks HANNAH, that makes sense and helps give me a glimmer of hope. I know there is always more to it, but I appreciate your taking the time to respond.

As this plays out, I will "pay my dept" to this board.

I was curious about this so delved into Louisiana law. Seems you guys use prescription quite a lot for much more than it is used in WV and by doing so in debtor/creditor cases, a legal action when prescription is applied automatically as a borrowing statute. To you that means that your attorney is using the SOL of the creditor which I will bet is in a state with a 3 year SOL.

There's a great article you can read CONFLICT OF LAWS IN LOUSIANA: CONFLICT OF LAWS -- LIBERATIVE PRESCRIPTION by Dana Patrick Karam in the LOUISIANA LAW REVIEW.

Very interesting and an approach that is gaining in use in other states using conflict of law and borrowing statutes. I would upload it but it is bigger than allowed. If you or anyone else like to read it, email me at sosueme2006@yahoo.com and ask me for a copy.

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SuperChamp, Hannah got it right.

The attorney basically said they didn't file the suit in time. Fancy legal jargon for saying something simple. Louisiana is civil law whereas everyone else is common law, so the terms aren't always identical, but mean the same thing.

Good luck with your case.

Go Hornets!

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