When does SOL truly start

[jazz_nh]

Im in the State of NH where Credit Card Debt has an SOL of 3 years. However, I have had a couple of Atty's that I have consulted with who have given me advise of when the SOL truly begins.

I have an account that shows the last payment was made in April 2009, whoch would put the account just within the SOL right now. But, the last payment before that was in Sept, 2008.

I have consulted with a couple different Atty's in the State who say that the SOL started with the last payment in Sept 2008. That the inactivity on the account for the next 8 months until April 2009 doesnt matter. The initial default was in Sept 2008.

Is this true, or did said payment ( which I dispute anyway) in April 2009 restart the clock ?

[Guest usctrojanalum]

What does the NH statute say? If you were in NY, the payment restarts the clock.

[jazz_nh]

What does the NH statute say? If you were in NY, the payment restarts the clock.

Im having trouble finding the NH Statute.

[jazz_nh]

Ive found this for NH Statutes, but still cannot tell if a payment restarts the SOL or not...

382-A:3-118 Statute of Limitations. – (a) Except as provided in subsection (e), an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.

( Except as provided in subsection (d) or (e), if demand for payment is made to the maker of a note payable on demand, an action to enforce the obligation of a party to pay the note must be commenced within six years after the demand. If no demand for payment is made to the maker, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of 10 years.

© Except as provided in subsection (d), an action to enforce the obligation of a party to an unaccepted draft to pay the draft must be commenced within three years after dishonor of the draft or 10 years after the date of the draft, whichever period expires first.

(d) An action to enforce the obligation of the acceptor of a certified check or the issuer of a teller's check, cashier's check, or traveler's check must be commenced within three years after demand for payment is made to the acceptor or issuer, as the case may be.

(e) An action to enforce the obligation of a party to a certificate of deposit to pay the instrument must be commenced within six years after demand for payment is made to the maker, but if the instrument states a due date and the maker is not required to pay before that date, the six-year period begins when a demand for payment is in effect and the due date has passed.

(f) An action to enforce the obligation of a party to pay an accepted draft, other than a certified check, must be commenced (i) within six years after the due date or dates stated in the draft or acceptance if the obligation of the acceptor is payable at a definite time, or (ii) within six years after the date of the acceptance if the obligation of the acceptor is payable on demand.

(g) Unless governed by other law regarding claims for indemnity or contribution, an action (i) for conversion of an instrument, for money had and received, or like action based on conversion, (ii) for breach of warranty, or (iii) to enforce an obligation, duty, or right arising under this Article and not governed by this section must be commenced within three years after the cause of action

[tigger]

Hi jazz_nh,

Try this link:

Statute of Limitations on Debts

As far as if a partial payment restarts your sol, certain states have laws that state unless a new written contract is created--it does not. Unfortunately, it does not look like nh is one of those states (sorry). But you may want to see if that has changed since this was published:

Statute of Limitations on Debts

Hope this helps!

[KentWA]

It looks like it can go either way. In Premier Capital v Gallagher the court ruled that the SOL was not tolled, and in Exeter Hospital v Hall the court went the other way. It seems to turn on some nuances of whether the partial payment was made according to the terms (i.e. min payment was $100 and you paid $50 is not according to terms)

However, it is clear that the burden of proving the payment was made is on the Plaintiff. So they are going to have to prove you made the payment and that it was not an accounting mistake or a fake payment in a deliberate attempt to toll the statute. Just the fact that they claim there was a payment is not going to cut it if you fight them on it.

[BV80]

It looks like it can go either way. In Premier Capital v Gallagher the court ruled that the SOL was not tolled, and in Exeter Hospital v Hall the court went the other way. It seems to turn on some nuances of whether the partial payment was made according to the terms (i.e. min payment was $100 and you paid $50 is not according to terms)

However, it is clear that the burden of proving the payment was made is on the Plaintiff. So they are going to have to prove you made the payment and that it was not an accounting mistake or a fake payment in a deliberate attempt to toll the statute. Just the fact that they claim there was a payment is not going to cut it if you fight them on it.

In Gallagher, the reason the court ruled the SOL was not tolled was because Gallagher, himself, had made no payments. Since Gallagher had never made payments, the action against him was time-barred.

The court did state:

"At common law, the limitations period for an action to recover on a demand note is tolled when a renewed promise to pay can be implied from the circumstances, such as partial payment or other acknowledgments of liability and willingness to pay the debt."

It would appear even a partial payment would restart the SOL.

[jazz_nh]

Hi jazz_nh,

Try this link:

Statute of Limitations on Debts

As far as if a partial payment restarts your sol, certain states have laws that state unless a new written contract is created--it does not. Unfortunately, it does not look like nh is one of those states (sorry). But you may want to see if that has changed since this was published:

Statute of Limitations on Debts

Hope this helps!

Thanks, I have already found and read this and see that NH appears to not be one of these states.

SInce I have had two different Lawyers in NH tell me that the Sept08 payment is the true start in my instance, that the next payment in April 09 didnt reset the clock I have been trying to find this in the statutes.

Since I was talking to them on free consult, I couldnt ask what RSA they were referencing. And since Im not a lawyer myself, I am inept at trying to find these things myself.

[legaleagle]

RSA 508:4

"statute of limitations" - Google Scholar

Don't see one credit card case for NH, could be new ground.

"statute of limitations" - Google Scholar

"statute of limitations" - Google Scholar

[jazz_nh]

RSA 508:4

"statute of limitations" - Google Scholar

Don't see one credit card case for NH, could be new ground.

"statute of limitations" - Google Scholar

"statute of limitations" - Google Scholar

So there appears to be no RSA for this in NH and no precedent made, which could give me an upper advantage on winning.

[legaleagle]

Well, maybe, I didn't look at RSA 508-4, I picked it off one of the cases I found. The problem with new case law is that judges hesitate to break new ground because the are afraid of being overturned. They like to rule nice and safe on precedent. I don't think it is absolutely imperative that the case law be from a credit card case, as long as it is something involving collections.

[BV80]

The Supreme Court of NH ruled that a partial payment can restart the SOL, because it shows a willingness to pay the debt. They stated so in Premier v. Gallagher.

Jazz, did you make that payment? Have you gotten a copy of your bank statement to make sure the payment was actually made?

[jazz_nh]

The Supreme Court of NH ruled that a partial payment can restart the SOL, because it shows a willingness to pay the debt. They stated so in Premier v. Gallagher.

Jazz, did you make that payment? Have you gotten a copy of your bank statement to make sure the payment was actually made?

Well, thats part of the problem. The April 09 payment shows on both the CC statement and on my bank account as an online payment. I have called my bank, and they are not able to tell by the ID or Trace numbers on it if it was my that initiated the payment or if BoA took the payment without my consent seeing as they had my checking account info on file.

[BV80]

Since it was an online payment, you could deny knowledge of it. It appears you don't remember it.

The problem is that the JDB or the judge will ask if you disputed that payment with your bank. If it's a small payment, you could say you probably didn't notice it. It's it's a larger payment, that would be more difficult to claim.

At that time, was it common for you to pay your bills online?

[jazz_nh]

Since it was an online payment, you could deny knowledge of it. It appears you don't remember it.

The problem is that the JDB or the judge will ask if you disputed that payment with your bank. If it's a small payment, you could say you probably didn't notice it. It's it's a larger payment, that would be more difficult to claim.

At that time, was it common for you to pay your bills online?

It was common for me to make online payments, but I dont recall making the April one at all. I remember this because my youngest child was born just a couple weeks prior. The payment was for 250 and I have not ever contested it since I never saw it.

I just had another credit card company do the same to me this month on an active card I have. They took this months payment on their own from my bank. I called them and said the payment is ok, but wanted it recorded that I did not authorize the payment. They told me that it was a pay by phone payment.... which I know was not the case.

[Carvone]

So SOL does start when you stop making payments or does it start when they charge off the account?

[BV80]

So SOL does start when you stop making payments or does it start when they charge off the account?

Unless your state has a law that says otherwise, the SOL starts the month a payment was due, but you never paid again.

If the SOL didn't start until an account was charged off, an account could be kept open forever, and the SOL would never start.