gretchenNJ

Question on Statute of Limitation on Credit Card Lawsuit

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I was served with a lawsuit from a JDB in September 2011. My state's statute of limitations is 6 years. The last payment that I made on this account was 3/14/2006. My court date for a hearing is 3/28/2012. So far I have responded to all interrogatories as denied, and I have sent a discovery to the Plaintiff (Pressler and Pressler) with little response back (just a printout of a statement so far). Can I use statute of limitations for this case or not, since I was served in August, but when my court date is scheduled, I would have reached 6 years. Thanks!

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The SOL does not expire when they file a case. Once they file the case, the SOL is tolled meaning the SOL clock stops running. If the case is dismissed or the Plaintiff loses, the SOL clock starts again with the same amount of time left when the lawsuit was filed.

For instance, if you had 6 months left on the SOL when the case was filed, the case lasts a year, and the Plaintiff loses (or dismisses), the SOL clock starts again with 6 months left.

It has nothing to do with the statute of frauds.

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The SOL depends on what kind of account this is. Credit card? If so, the SOL will be from the state the OC is located in. They insisted on their choice of law, let them live with it if it expired. Probably not, though, they don't often miss the SOL.

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BV80 - I hesitate to disagree with you but I believe in other case law, not sure which, the SOL toll is not reset back to when the case is filed if the case is dismissed. From what I've read it's as if the case was never filed.

Here it is:

Statute of Limitations — Complaint Dismissed without Prejudice Does Not Toll Limitations Period as a Matter of Federal Law

From Kucher v. Alternative Treatment Center of Paterson, LLC, 2009 U.S. Dist. LEXIS 36737 (E.D.N.Y. March 27, 2009):

In the event of a dismissal without prejudice, the limitations period in this case would be considered to have expired in 2008 [for one claim] since such a dismissal negates the tolling effected by the commencement of the action. See Cardio-Medical Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir. 1983) ("It is a well recognized principle that a statute of limitations is not tolled by the filing of a complaint subsequently dismissed without prejudice. As regards the statutes of limitations, the original complaint is treated as if it never existed.")

But since this was Federal court you would have to check your local statutes.

Edited by Simpleaim
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Thank you all for your responses. I have a court date in 2 weeks, and haven't received much besides a printout of an electronic credit card statement for Dell Financial Services. Any advice on what to expect on my court date (Mercer county, nj) will be much appreciated.

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Dell uses an outside company to do their financing. That's the name we need. The SOL that applies is the SOL of the state in which the creditor is located. Sometimes they will try to use yours because they were too stupid to file on time, you can argue against that. Also stick to one thread.

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BV80 - I hesitate to disagree with you but I believe in other case law, not sure which, the SOL toll is not reset back to when the case is filed if the case is dismissed. From what I've read it's as if the case was never filed.

Here it is:

Statute of Limitations — Complaint Dismissed without Prejudice Does Not Toll Limitations Period as a Matter of Federal Law

From Kucher v. Alternative Treatment Center of Paterson, LLC, 2009 U.S. Dist. LEXIS 36737 (E.D.N.Y. March 27, 2009):

In the event of a dismissal without prejudice, the limitations period in this case would be considered to have expired in 2008 [for one claim] since such a dismissal negates the tolling effected by the commencement of the action. See Cardio-Medical Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir. 1983) ("It is a well recognized principle that a statute of limitations is not tolled by the filing of a complaint subsequently dismissed without prejudice. As regards the statutes of limitations, the original complaint is treated as if it never existed.")

But since this was Federal court you would have to check your local statutes.

boy you saved me a ton of research with that one. thanks!

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I had my court date last week, and I am updating this thread for those searching for what to expect:

So, I WON and have a dismissal with prejudice, so I can't even begin to write just how glad I am...couple of things about my experience:

A) It goes without saying that make sure you respond to all correspondence and file all answers in a timely manner

B) Stick to stating the facts, that's how I won my case, no need for a lot of verbage and legal mumbo jumbo

C) I was so pleasantly surprised with my whole experience. Most people don't know what to expect in court, and are nervous and expect the worst. First, the judge was very nice (contrary to what I had read about him, take everything you read online with a grain of salt, even this post) and he explained the process, and he wasn't intimidating at all. Second, the lawyer from the JDB was really nice too. I know this won't be the case with all people, but he was very courteous, and he listened to my case, he proposed a settlement, when I said I did not agree and explained why (SOL, lack of documents provided by Plaintiff) he proposed a second settlement. And when I explained again that I did not think that was correct either, he said that then they would not pursue it further and I got my dismissal. It was all done so pleasantly, I swear, we could have been talking about the weather.

D) Less is more. I let the Plaintiff lawyer do all the talking, I didn't admit anything, I simply stated that I needed the documents before I could agree to anything, documents that they didn't have. Again, I know this won't work for everyone, but my strategy was a calm, polite, and quiet demeanor and it won. I saw a belligerent defendant not get what they wanted, and I was lucky enough that I did.

AA

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