phoneczar

SOL and Tolling

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We have been sued 2x in Calif for a Crap1 card. Both times the case was dismissed w/o prejudice. Does tolling still happen even though cases were dismissed thereby buying more time for the Plaintiff? Or does tolling go away and the time is still from the last payment?

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The SOL continues to run from the date of the last activity on the account. They may have filed, but dismissed it also. The old saying, "don't invite error to be later heard complaining about it."

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I'm very interested in this also, as my suit dragged on for 7 months before they finally dismissed w/o prejudice. Last payment was 2/2007 so SOL should be up in less than a year - unless they can toll the 7 months they dragged their feet in a law suit. I don't really understand the tolling laws.

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Any others? calawyer?

Thanks for the reply! I would like to hear from some folks on the left coast....

Excellent question and I'll be waiting to see your responses (from Californians)...

(tigger waves from Cali! )

:)++

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This is one of those areas of law in California that is not entirely clear. If there was some type of tolling by virtue of filing the complaint, it would be a form of equitable tolling. However Courts have usually restricted this doctrine to cases filed in another forum. I think the better view is that there is no tolling by virtue of the case that was filed and then dismissed. Courts have reached this result in cases involving the analogous situation of governmental claims requirements and the "Statute of limitations" that follows the rejection of the claim. See, e.g. Evans v. City of Santa Rosa, 2000 U.S. Dist. LEXIS 4738, 4-5 (N.D. Cal. 2000).

If you have a situation where a OC or JDB repeatedly files and dismisses cases, I suggest that you consult a consumer attorney. The SOL argument will require some fairly detailed briefing and you may have affirmative claims against the plaintiff for abuse of process, etc.

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Thanks for the reply! I would like to hear from some folks on the left coast....

Wow! In the United Stated Court of Appeals for the 6th Circuit has repeatedly ruled that the tolling of SOL will not extend one day absent the fraudulent concealment of information.

The United States Supreme Court Ruled in Wood v. Carpenter the statute [sOL] tolls only “secret and concealed” wrongdoing, “not one that is patent or known.”

Last I checked the United States Supreme Court or Federal Rulings are good law from East to the West Coast.

Edited by debtfighter
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With full respect for calawyer, equitable tolling would not be applied to this situation (a credit debt) since equitable tolling is primarily reserved for newly discovered or unknown evidence outside of the SOL that supports a claim.

Equitable tolling means that a person is not required to sue within the statutory period if he cannot in the circumstances reasonably be expected to do so. [Dixon v. United States, 1999 U.S. App. LEXIS 13215 (10th Cir. Okla. 1999)

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With full respect for calawyer, equitable tolling would not be applied to this situation (a credit debt) since equitable tolling is primarily reserved for newly discovered or unknown evidence outside of the SOL that supports a claim.

Equitable tolling means that a person is not required to sue within the statutory period if he cannot in the circumstances reasonably be expected to do so. [Dixon v. United States, 1999 U.S. App. LEXIS 13215 (10th Cir. Okla. 1999)

I was wondering where you got your definition and see that this is the dictionary definition of the term. But it is incomplete and, interestingly, not even a definition used by the case that you cite.

In California (and other jurisdictions) equitable tolling refers to a court-made rule as opposed to something found in a statute. It is a reason NOT to apply the statute under a certain circumstance. One situation in which the California courts have applied equitable tolling is where the plaintiff filed a timely action in another forum. Actually this form of equitable tolling was also discussed in the case you cite, although it was not applied.

For a discussion of this doctrine in California, you may wish to read the Supreme Court’s decision in Addison v. State (1978) 21 Cal. 3d 313.

In any event, I agree it is unlikely that a California Court would apply equitable tolling under these circumstances. Not because it is a credit debt, but because both actions have been filed in the same forum. Examples of courts rejecting the application of equitable tolling under these circumstances are the case I previously cited and Thomas v. Gilliland (2002) 95 Cal. App. 4th 427.

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I was wondering where you got your definition and see that this is the dictionary definition of the term. But it is incomplete and, interestingly, not even a definition used by the case that you cite.

In California (and other jurisdictions) equitable tolling refers to a court-made rule as opposed to something found in a statute. It is a reason NOT to apply the statute under a certain circumstance. One situation in which the California courts have applied equitable tolling is where the plaintiff filed a timely action in another forum. Actually this form of equitable tolling was also discussed in the case you cite, although it was not applied.

For a discussion of this doctrine in California, you may wish to read the Supreme Court’s decision in Addison v. State (1978) 21 Cal. 3d 313.

In any event, I agree it is unlikely that a California Court would apply equitable tolling under these circumstances. Not because it is a credit debt, but because both actions have been filed in the same forum. Examples of courts rejecting the application of equitable tolling under these circumstances are the case I previously cited and Thomas v. Gilliland (2002) 95 Cal. App. 4th 427.

Thank you for the insight. Both cases are nice understandings of equitable tolling, however, I do not believe they are on point to a credit card debt/lawsuit.

I would like to say to you. calawyer, I have a tremendous respect for you, the vast knowledge you take the time to share on this board is enormously helpful to others and, I personally, have learned a tremendous amount from reading your post.

I will confess and say that I have never encountered equitable tolling outside of theory or study. My assumption has always been that it applies to the unkown, deceptive or hidden. Thus applying that theory in thought to a credit/debt case would make me believe since the CA/JDB brought suit, they had all knowledge of the account on hand, thus, equitable tolling could not exist.

For others, I am aware of how different our court system is throughout the country, but most courts, with the a big exception to California inpaticular, pattern themselves off of Federal Rules of Civil Procedure. With that said, and as a recent United States Supreme Court ruling regarding California inmates reflect, the law in any State can have a bearing on all States. My only goal is to help others and expand on ideas. Though California law or procedure does not effect me personally, I am intrigued by the diffference and only hope to understand it more.

calawyer, I wasn't disagreeing with you in my response as much as I was giving a different perspective and expanding on the question of equitable tolling as applied to a credit/debt/lawsuit. Even you stated, "courts have restricted this doctrine to another forum." Indeed, as your citations reflect, it is another forum of law and argument. I would think it is safe to say, for the OP, the tolling has not occurred in the failed attempts at prior suit.

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calawyer, I wasn't disagreeing with you in my response ...

No problem at all. I have been known to make mistakes :)

I responded because this is a very interesting issue that has not received much attention by the California Courts and, frankly, I was surprised at the likely result (that suit #2 must be filed within the original limitations period or it will be barred). The most common DEFENSE to the SOL argument is equitable tolling and we both agree that the Courts seem to shut this down.

This is an area where more law needs to be made and I would encourage anyone with a particulary sympathetic case to consult an attorney that would be cometent to take the matter up on appeal if necessary.

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calawyer, I wasn't disagreeing with you in my response ...

No problem at all. I have been known to make mistakes :) Frequently, if you ask my wife.

I responded because this is a very interesting issue that has not received much attention by the California Courts and, frankly, I was surprised at the likely result (that suit #2 must be filed within the original limitations period or it will be barred). The most common DEFENSE to the SOL argument is equitable tolling and we both agree that the Courts seem to shut this down.

This is an area where more law needs to be made and I would encourage anyone with a particulary sympathetic case to consult an attorney that would be cometent to take the matter up on appeal if necessary.

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