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Questions about Statute of Limitations


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Hello all,

 

Quick questions about the SOL.

 

Let's say that Bill once had a Wells Fargo credit card.  He last made a payment on the outstanding balance on January 1, 2010 (keeping to nice round numbers).  He has had no further contact with them since that date, although he still owes $5,000.00 for charges he made on the credit card.  

 

Bill lives in California, where the SOL is typically 4 years to collect.

 

NOW, if nothing happened at all between Wells Fargo and Bill, I presume that the SOL runs out on January 1, 2014.  IS THIS A CORRECT ASSUMPTION?

 

NOW, let's say that Wells Fargo sues Bill, submitting the original Complaint on January 1, 2012 (two years after last payment and contact).  DOES THIS FACT "STOP THE CLOCK"?  Meaning, let's say that, due to the crowded CA court system, the trial happens on January 1, 2015 and Wells Fargo wins.  Is their court win already past the SOL or, because the Complaint was filed within the 4 year period, can Wells Fargo still collect?

 

OR, let's say that trial happens on January 1, 2015 and the case is Dismissed Without Prejudice.  Can Wells sue Bill again on the debt or, because it has now been 5 years since the last payment and contact, has the SOL now run out?

 

Does anyone know the definitive answer to these questions?  If so, your input is greatly appreciated!

 

Thanks!

 

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It's when the complaint is filed, not when the verdict is rendered.  Think about it this way:  FDCPA claims have a statute of limitations of 1 year.  FDCPA lawsuits that go to trial often last for more than 1 year.  So, if you filed an FDCPA lawsuit against a debt collector the day after the violation happened, and the case took 2 years, well, you can follow that line of reasoning. 

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It's when the complaint is filed, not when the verdict is rendered.  Think about it this way:  FDCPA claims have a statute of limitations of 1 year.  FDCPA lawsuits that go to trial often last for more than 1 year.  So, if you filed an FDCPA lawsuit against a debt collector the day after the violation happened, and the case took 2 years, well, you can follow that line of reasoning. 

 

Thanks for that.  However, as I asked in the post, what happens if the case is dismissed without prejudice?  Has now the Statute expired or did the Statute clock "stop ticking" during the course of the trial?

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I've never had to deal with that personally, but my understanding is that it depends on what state you are in, but many states will toll the SOL, i.e. the clock stopped ticking.  I think that is the case for Cali, but if I am wrong, somebody should be along promptly to correct me. 

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I think it does toll the SOL but think of it like this. Let's say JDB sued Bill and he fought back and they dismissed with prejudice. There is still a year left on the SOL. Now, the JDB gets so pissed off they sell it to JDB2 (complete sucker). JDB sues Bill with 1 month left on the SOL.

 

How easy do you think it will be to defend a lawsuit that now has one more link in the chain of custody AND one of those links is from a JDB that had so little evidence that they dismissed WITH prejudice.

 

Coltfan, stop drooling, please.

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Thanks everyone.  So does anyone know the law in CAlifornia?  I would re-phrase my questions, but the original post pretty much says it all.  Does anyone know the real answers to these questions?

 

Thanks much,

 

 

My advice:  Assume that the clock stopped ticking (worst case) and look for the real answer yourself while waiting for somebody to give you the answer on here.  You can use Google Scholar to search legal opinions, and you can limit those searches to your state.  And if somebody gives you an answer, verify the hell out of it.  I try be good about telling people if I am uncertain.  Not everybody is like that.  Even people who have a decent amount of experience can be wrong.  Verify, and don't trust that anybody has given you the right answer on legal questions.  I won't be offended if you double check what I say. 

 

Edit:  I might be offended if you "un-verify" what I say with a source that carries zero weight with the courts, i.e. something that is not a statute or something that is not out of a court that carries legal weight in your jurisdiction. 

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When the case is filed the Statute of Limitations in California is tolled, however, if the Plaintiff voluntarily dismisses their case without prejudice, the clock snaps forward as if the suit was never in play.  This makes sense, if you think about it. Otherwise there would be little protection for defendants as plaintiffs could potentially sue and dismiss and sue and dismiss in an effort to extend the deadline for the SOL indefinitely.

 

Read: Martell v. Antelope Valley Hospital Medical Center (1998), 67 Cal. App. 4th 978 [79 Cal. Rptr. 2d 329] http://law.justia.com/cases/california/caapp4th/67/978.html

 

In this case, although about malpractice, the Plaintiff's sued and dismissed their case and then later decided to reinitiate another suit against the Defendant hospital.  The Appellate Court ruled that because they had dismissed their first case, the SOL clock had moved forward, placing them outside of the SOL and affirmed the lower courts decision to dismiss the case as time barred.  They stated:

 

Appellants' reliance on Bollinger v. National Fire Ins. Co. (1944) 25 Cal. 2d 399 [154 P.2d 399], for a somewhat different formulation of equitable tolling does not change the result. Bollinger's elements for equitable tolling required, among other things, "that the plaintiff [be] left without a [current] judicial forum for resolution of the claim [because of] forces outside the control of the plaintiff ...." (Hull v. Central Pathology Service Medical Clinic (1994) 28 Cal. App. 4th 1328, 1336 [34 Cal.Rptr.2d 175].) Here, appellants cannot satisfy that element because they voluntarily dismissed their first complaint. Accordingly, their predicament at being unable [67 Cal. App. 4th 986] to file another complaint is of their own making and not something caused by "forces outside [their] control." 

 

Hope this helps!

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