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Question about SOL and lawsuit and dismissal


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Hi,

 

New guy here and have a question about SOL, wasn't sure where to post it since it crosses couple of topics. So here goes:

 

I defaulted on a credit card, the SOL of the card by agreement is 3 years. The creditor filed a complaint with the court and I filed BK13 upon which the creditor then filed for dismissal of the lawsuit. My BK 13 got dismissed so my question is about the SOL where does it stand now? Below is the timeline:

 

1st delinquint date: 09/30/2009 (30 day late filed on credit report by creditor)

Lawsuit filed date: 4/30/2011

Dismissal filed by creditor: 3/31/12

BK 13 filed: 3/15/12

BK 13 dismissed by court: 7/31/12

 

So what is the timeline for this creditor as it stands, does the clock starts from 9/30/09 and paused in 4/30/11. I'm just trying to find out if the 3 yr has past so I don't have to worry about them coming after me. I want to lay low until SOL will expire before I start to clean-up my credit report.

 

According to my calculation its been 3yr and 5 month (past the 3 yr sol), am I right?

 

Thanks in advance.

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My guess is that the SOL is temporarily held up by the BK filing. Since the BK failed, I think the plaintiff could refile the case. I think the original filing date would prevail. Charge off is not the correct date to use for the SOL. You need to know the date of the first scheduled payment you missed, which put the account into default. Fast forward three years and that's the deadline. If they filed the case after that date, they have a dead case and an FDCPA violation.

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The SOL for open accounts-credit cards is four years.
California Code of Civil Procedure Section 337 deals with statute of limitations for credit card debts. The statute of limitations for credit card debts in California is 4 years in case of a written contract or an open ended account. The time limit of 4 years runs from the date of the last transaction on the card. The transaction may be a purchase made on the card or a payment made to the credit card company towards the dues. If the credit card contract is an verbal contract (which is extremely rare) the statute of limitations is 2 years under California law.
 

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Impressive: I thought in California it is a done deal, since there is precedent on it. In other words, a Judge has already ruled that VA sol applies if it is written in the contract.

 

Assuming that the 3 Yr rule applies is my SOL calculation okay? Is it 9/30/12 or 1/31/13?

 

Thanks in advance

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You argue the SOL if your state has a borrowing statute, which allows you to use the other guy's SOL. Some states have this, some don't. CA does. See Resurgent Financial v. Chambers. it also depends on the creditor, whom you did not identify. The only one I know of in VA is Cap 1, and as of their 2010 agreement they specify that you agree to either theirs or yours, whichever is longer. If your last payment occurred after this change, they can hold you to the CA 4 year SOL.

 

I think the original date on the original complaint would prevail, since they filed on that date and your BK failed to deep six that lawsuit. Choice of law does not affect the SOL, it is mostly procedural. It's the borrowing statute that allows you to use theirs.

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Bruno: I'm not sure what "deep six that lawsuit" means? They filed for dismissal and the judge dismissed it. I know they can refile but according to my calculation I'm out of SOL. So looking at the timeline above do you think I'm out of SOL? I don't think they can reopen the lawsuit once it has been dismissed, can they?

 

The last payment I made was in October of 2009.

 

Thanks for everyones help, I appreciate it a lot.

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How can it go forward if it has been dismissed, don't they have to refile? I don't think you can reopen a case after dismissal? Bottom line I'm trying to find out the SOL calculation here.

 

So in this situation, since 8/30/2009 is it 9/30/12 or 1/31/13? Or neither apply if somehow the case is reopened? If refiled then it would be aftet 3 yr right?

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My understanding is that a bankruptcy filing would automatically stay your current lawsuit that was filed 4/30/2011. The plaintiff was not required to dismiss the case but since they did, the SOL should run as of the lawsuit was never filed. The SOL might have been tolled during the bankruptcy since that is the period a creditor is barred from collection activity.

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1st delinquint date: 09/30/2009 (30 day late filed on credit report by creditor)

Lawsuit filed date: 4/30/2011

Dismissal filed by creditor: 3/31/12

BK 13 filed: 3/15/12

BK 13 dismissed by court: 7/31/12

Some states have a saving statute that allows a case dismissed without prejudice to be refiled within 1 year of the dismissal even if the SOL has expired. Check if VA or CA has something like that.

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