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Tolling the SOL on a judgment in California


Val
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Hi

Please pardon my ignorance. I'm new here, and I did a search on my question but wasn't able to find an answer, so I'm posting here.

I have three documents in particular re a judgment against me for a car loan:

  1. March 1999 - a summons that advises me I have 30 days to respond or I may lose with a complaint attached listing the original creditor as the plaintiff and a case number (to which I did not respond because I was pretty much incapacitated by severe PTSD at the time).
  2. October 2000 - Notice of assignment (to CA) with a different case number.

    And in that notice, paragraph 6 states "The action is subject to (California) Civil Code Section 2984.4" (I get that) and 6.1 state "The SOL is tolled because of the applicability of C.C.P. Section 351."

    EDIT: I'm updating this post because I found Section 351 on google. Among other documents, I found an April 1995 recommendation by the California Law Revision Commission to repeal 351. The repeal was unsuccessful, but there's been a continuing dialog since about it's unfairness... enough to encourage me to challenge it. The forum won't let me post a link, but it's a fascinating document in pdf format on the clrc ca gov site entitled "TOLLING STATUTE OF LIMITATIONS WHEN DEFENDANT IS OUT OF STATE".


    351 says "If, when a cause of action accrues against a person, he is out of the State, the action may be commenced with the term herein limited, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action."

    I don't understand how it could be a valid reason for tolling in my case since I was at the same address as I was when the judgment was initiated by the original creditor and had never left the state.


  3. The third document is a Notice of Levy with the same case number as the Notice of Assignment and says the judgment was entered in January 2001.

Any thoughts by anyone who has had experience with Section 351 and any recommendations on how to resolve this would be greatly appreciated. I believe the original SOL is just days or weeks away.

Thank you very much for your help.

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When that document says "judgment entered" that indicates to me that you lost the case by default, and now have a judgment against you.

The only "SOL" that would come into play now would be if they let the judgment expire with no collection efforts and fail to have it re-entered at that time. Looks like the OC got the judgment and then assigned it to a CA for collection.

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Thanks so much for your reply Montanatim. What's at issue here is the validity of the assignee invoking Section 351 to prolong the SOL.

Reading the code, the verbage "the commencement of the action" seems to me to speak to the statutory period to file suit, which I believe in this case is four years since it's about a breached contract. As Barbara Gaal said in a paper she wrote opposing the repeal of the code and proposing changes instead, "Section 351 now not only applies to extended absences from the state, but also very brief absences... Consequently defendants may be 'penalized for taking a legitimate vacation out of state'... Such an absence rewards a tardy plaintiff who has failed to file an action within the statutory period."

Since both the original creditor and the CA commenced their action well within the statutory period, the CA is apparently using Section 351 to toll the SOL. Is that legal? Furthermore, it seems to me they were banking on the likelihood I took a vacation out of the state during those two years since they knew I didn't move out of state, but I didn't take a vacation, I couldn't afford to, so their invoking Section 351 is invalid.

That said, I'm wondering if any one here knows what my options are.

Thanks!

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I'm still confused as to what your question is really.

Summons served March 1999.

Debt assigned to CA 10-00

Default judgment entered 1-01

So who was suing you in 3-99, was it the OC, some other CA or the CA it was assigned to in 10-00?

Was the suit you received summons for in 3-99 the one judgment was entered on in 1-01?

The SOL clock started the day they could prove you breeched the agreement.

If you remained in the state (could be served) for the entire limiting period before you got the summons in 3-99 then it was past SOL.

Tolling is if you could not be served due to your absence from the state for a period of time while the SOL clock was ticking. Then the clock would pause during the absence or be "tolled"

Unless you plan to try to have the judgment vacated on some grounds, and thereby file an answer with SOL as an affirmative defense, what does SOL have to do with the CA collecting on the judgment?

The only why SOL will do anything for you now is if you can get the judgment vacated and re-open the litigation.

Right now you have a judgment against you and it will be valid and collectible for as long as judgments are good for in your state, including any renewals they get.

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Hi Montana...

Thanks again.

To answer your questions, I breeched in August of 1998. They summoned me in March 1999. So they were within the SOL for filing a judgment. I didn't answer, and it's my understanding from the summons that it defaulted if I didn't answer? They gave me 30 days to answer, but I've read it defaults in 60 and 180 days (I don't know which is correct for a judgment). It's my understand there's a SOL for filing an action that starts when the contract is breached and another SOL on the judgment (action they filed) itself. Am I misunderstanding?

The assignment was filed with a different case number from the case number of the original judgment, and in the assignment they claimed the right to toll the SOL of the original judgment because of the applicability of Section 351. However, 351 isn't applicable since I didn't leave the state and they could easily serve me. So wouldn't that make their SOL that they extended by 19 months invalid?

I want the judgment to revert to the original SOL. Is that an option?

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Frankly, I'm a still a little confused by your whole situation. But let me throw a couple things out anyway, in case they help.

You're right, in California they have 4 years to file a lawsuit within the Statute of Limitations.

If they win a judgment, whether by default or by decision, the judgment is good for 10 years in California. A judgment creditor can sell their judgment to someone else, who can try to collect on it. As the 10 years is about to run out, it can be renewed for another 10 years, meaning that a judgment can hang over your head for up to 20 years.

Regards,

DH

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Frankly, I'm a still a little confused by your whole situation. But let me throw a couple things out anyway, in case they help.

That's exactly it. The situation isn't cut-and-dry. It IS confusing. There are extenuating circumstances here.

If they win a judgment, whether by default or by decision, the judgment is good for 10 years in California. A judgment creditor can sell their judgment to someone else, who can try to collect on it. As the 10 years is about to run out, it can be renewed for another 10 years, meaning that a judgment can hang over your head for up to 20 years.

Yes! The judgment was won by default, but, when the CA filed the notice of assignment 18 months later, they added a paragraph 6.1 saying they were tolling the judgment because of the applicability of Section 351. Section 351 says if they couldn't serve me because I was out of state they could extend the SOL. And they DID extend the SOL by 19 months. But I was never out of state and WAS served. It just took them a long time to file the notice of assignment, so they're making me make up for THEIR lost time.

I think they put paragraph 6.1 in there because most people don't notice. And I didn't notice until just before I started this thread. But now I have. I know that their 6.1 is untrue... invalid... BS... whatever you want to call it.

Something I only briefly touched on in my original post... I believed the original debt to be bogus. I had made a huge down payment on the car, made many payments before I finally defaulted and had many frustrating discussions with the original creditor about the balance due after I defaulted... and I would have fought the judgment in court IF I could have.

But at the time I was incapacitated by severe PTSD and a profound fear of men in power positions because of a trigger experience in the workplace after which I left my employer of 13 years. And the mere thought of going before a judge set me to sobbing and emotional paralysis.

It took years to recover, but, with the help of family, recover I did. I don't suffer from the same fear and sense of helplessness any more. I have a sense of contentedness, a good credit rating and the will to defend myself now.

I'm retiring shortly, and I'd like this to go away before I retire. So I'd like to know my options, and I'd like to know if it's reasonable to file a petition to vacate the judgment based on the invalidity of their paragraph 6.1.

Thank you for your response DH!

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I say file your motion to vacate regardless let the court decide, i'm in the process of filing a motion to vacate on a civil limited :-(default judgment entered against me that some scum Jdb brought cavlary spv II and scum winns and simms attorney office.

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  • 1 year later...

I sounds like what you're saying is that you're not trying to vacate the judgment itself; you're only trying to contest the tolling of the judgment for 19 months. Is that correct?

It sounds like they got a valid judgment - they filed it within the SOL, and you didn't respond, and they got a default judgment. Is that correct?

So, like you say, there are two SOLs here: the SOL for filing a suit against you (4 years), and the SOL for the judgment if they win the suit (10 years).

It seems that the SOL for filing the suit is not in question. They filed it well within the 4 years. But you're just contesting that they're trying to extend the 10 years of the SOL of the judgment itself. Is that correct?

If so, then I don't see what the point is. Even if you win your argument that they have no right to extend the SOL of the judgment itself, they can still renew the judgment for another 10 years. So it would be a shallow victory (unless, for some reason, they don't renew the judgment).

But, as someone else said, it doesn't hurt to file a motion to object to their tolling of the SOL. On the other hand, though, if you get them involved in a legal battle, then the lawyer may just file to renew the judgment for another 10 years, and that would be the end of that. But if you do nothing and lay low, they may end up not renewing it (as it may not seem worth their time and money if you don't have many assets). But if they're going to go to court anyway to defend themselves against your motion, you can be damn sure they're going to renew it! So it may be in your best interest to do nothing and wait out the 19 months.

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Cool! Glad to hear you got with an attorney. (And, yeah, he consulted with me, and I told him what to tell you... ;-)). No, seriously, that's great. And it's good to get an update, as I was curious what had happened.

Would be great to hear what ends up happening, if they end up renewing the judgment, if you think to pop back in here and give an update when the time comes.

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Hi rngins...

I have to pop in anyway because I got a PM with even more great advice... and I want to thank that person as well, but I can't respond in private because I don't have enough posts to send a PM.

Your timing is eery as is the timing of the person who sent me the PM yesterday. The CA did renew. And they notified me two months AFTER they renewed and one month after the judgment would have expired. Though not very ethical, I guess it's legal or not enough of an infraction to try to vacate or modify the renewal.

I'm planning to retire soon and don't want this judgment hanging over my head, so I consulted with the attorney again, and he recommended I either file bankruptcy or try to settle with the CA, so I sent a letter to the CA proposing a settlement to dismiss the judgment, and they should have received it yesterday.

Hi person who sent me the PM...

I am taking your advice and doing the research you recommended in the event the CA and I aren't able to reach a fair and affordable settlement. Thank you so much for the great advice. It's a relief to have another option to explore.

Sincerely,

Val

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Sorry to hear that they renewed. Well, at least you know where you stand.

I think it's important to get a perspective on the situation. What is the worst that would happen if you have this judgment hanging over your head for the next 10 years? Do you have any assets they can seize? If you're retired, then they can't garnish your wages, since you wouldn't have any. And I'm pretty sure that SSA benefits are judgment-proof. Also, if you're in the low-income bracket living on SSA benefits, then you may be entirely judgment proof.

So you should consider those things before you spend a lot of money to settle with the CA, when there might not be much they can do anyway.

And even if you weren't judgement proof, if you don't have assets, then you'd only have to worry about them seizing your bank account (and, again, that's even if they'd be allowed to, depending on how much and what type of funds you have in there). So, in that case, you'd just have to not keep a lot of funds in there, and possibly use money orders.

But, again, if you're going to be living on SSA, you may not have anything to worry about anyway.

There's a lot of information in this forum about what types of things a judgment can or cannot apply to, and there are a lot of people here who know a lot more about it than me. I just wanted to point you in that direction to have you consider that you might not really have to worry about them seizing your funds if you're living on retirement benefits, and I'd hate to see you throw a lot of money after a settlement that might not be necessary.

Also, if it's been 10 years and they haven't used their judgment to try and get your assets, does it seem likely that they would during the next 10 years? Of course, that's always a possibility. But I think that's something to consider as well.

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Hi nrgins...

Thank you for your response. Yes, I know where I stand now. They've tried to enforce the judgment three times so far, twice successfully, once denied and already taken more than they could have possibly paid for the account. So, no... I have no intentions of paying a lot of money. I've offered them a fair and affordable amount to dismiss the judgment. If they have any sense they will know that what I've offered is more than they will probably ever get otherwise. If they don't, then I weigh my other options. It's that simple.

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  • 2 weeks later...

I sent the offer to settle certified mail dated March 8, 2011, reiterating that I do not owe the debt and why I was unable to go to court to fight it (severe PTSD) and stating that I want to retire and that my other option is to file bankruptcy. I copied their new attorney. They have not accepted the letter (which constitutes willful ignorance, btw), and I have no doubt they will try to enforce the judgment again.

Additionally, I tried to settle with them on two previous occasions, once in writing, and they have not responded to any of my efforts. IMO, that, in itself, gives me little recourse but to involve the courts. How would the courts likely feel about their lack of effort?

I want to try to avoid bankruptcy and have done more research looking for more options. I have learned that if they do not serve me notice in a timely manner and I discover later that they have filed to renew, I have 180 days to file a motion to vacate. I don’t consider notifying me two months after they’ve filed to renew serving me notice in a timely manner. Will the courts?

I do not owe this alleged debt, and I still want to fight it. The loan officer claimed I owed $3,000 more than I had actually borrowed because he asserted he could charge me future interest. I’ve reviewed the loan agreement (LoanLiner form NCA878 [Laser] 6849LL 18 NON-STD with no modifications), and I can’t find anywhere in it that says he can charge future interest. It says I have to pay any unpaid balance AFTER THE SALE and interest on THAT until it’s paid. There was no unpaid balance after the sale, so there was no interest due – present, past or future. We were even. I argued the point with him a number of times, and I'd like to argue it in court.

I also found discussions about filing a MOTION TO VACATE JUDGMENT UNDER CCP 473. I’m getting ready to pay $15 to d/l a Sample Motion to file my own with the LA County Superior Court, but I’d love input from the members of this forum before I do. With the above additional information in mind, what is my best option now?

Thanks in advance for your insight. I really do appreciate your help.

Edited by Val
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