Big Time Posted January 10, 2014 Report Share Posted January 10, 2014 If a defendant asserts that the statute of limitations is up (or time barred) is the burden then shifted to the plaintiff to prove that a payment was made within the SOL? If it was up to the defendant to prove what he asserts, then he could just present a cancelled check that is older than the SOL and ignore any newer ones if the SOL hadn't really passed. This is especially true with a JDB who usually has no evidence that any payments were ever made at all. Could the DOLA listed on a credit report also be admitted as evidence that the SOL is really up? Just curious as to what legal minds think about this. Quote Link to comment Share on other sites More sharing options...
willingtocope Posted January 10, 2014 Report Share Posted January 10, 2014 I'm not a lawyer...and SOL laws vary from state to state...but its my understanding that if the defendant raises SOL as an affirmative defense, its up to the plaintiff to prove otherwise. And, in general, credit reports are not sufficient evidence. 1 Quote Link to comment Share on other sites More sharing options...
Guest usctrojanalum Posted January 10, 2014 Report Share Posted January 10, 2014 It's a little bit of both. If a party asserts an SOL defense they are not going to be successful just doing so blindly with a self serving statement and absolutely zero evidence to support it. Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 10, 2014 Report Share Posted January 10, 2014 @Big Time You can also use a little strategy here. Did the JDB say when they believe the last payment was made? 1 Quote Link to comment Share on other sites More sharing options...
Big Time Posted January 10, 2014 Author Report Share Posted January 10, 2014 Thanks guys. I haven't been sued yet, but I might me eventually for some old a$$ zombie debt from many years ago that brought me to these forums in the first place. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 10, 2014 Report Share Posted January 10, 2014 If you get sued on something well past SOL, they definitely won't tell the court when the last payment was made. Instead of filing an answer, file a Motion to Dismiss and include an affidavit swearing to the last payment you made. Now they have to come up with something more compelling than witness testimony to defeat your MTD. You better be absolutely certain of the claims you make in your affidavit, though. If they produce some documentation that refutes it you could be in trouble for perjury. 1 Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 10, 2014 Report Share Posted January 10, 2014 @Big Time Is the OC still reporting on your CR? Quote Link to comment Share on other sites More sharing options...
Big Time Posted January 10, 2014 Author Report Share Posted January 10, 2014 yes for a few more months. I'm waiting it out. What I;m worried about with a sworn affidavit of last payment is that I can't do that without also admitting the account existed. I would go in denying I ever had the credit card in the first place. Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 10, 2014 Report Share Posted January 10, 2014 @Big Time Does the OC's entry show a date of last payment or activity? If not, do you remember if you made payments after the account was charged off? Quote Link to comment Share on other sites More sharing options...
Big Time Posted January 10, 2014 Author Report Share Posted January 10, 2014 I need to order my credit reports again because I can't remember what they said but I defaulted on all my credit cards back in late 2006, early 2007 when I was in California where the SOL is 4 years. I didn't make any payments after charge offs though. Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 10, 2014 Report Share Posted January 10, 2014 @Big Time Ok, there you go. The OC's entry should indicate the date of charge off. You could get copies of your bank statements from before charge off and find the last time you made a payment. 1 Quote Link to comment Share on other sites More sharing options...
Big Time Posted January 10, 2014 Author Report Share Posted January 10, 2014 Copies of old bank statements is a good idea. I used to download them in pdf format and saved them to an external hard drive. Quote Link to comment Share on other sites More sharing options...
willingtocope Posted January 10, 2014 Report Share Posted January 10, 2014 I've always been concerned by both using SOL as a defense or invoking arbitration. In both cases, you're kind of admitting the debt is yours...which might be used against you. Isn't this the sort of thing where you should ask for discovery? Something to the effect of "...I have no records in my possesion regarding this alleged debt and ask the plaintif to furnish complete and accurate accounting so that I may determine my responsibilty...". 1 Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 10, 2014 Report Share Posted January 10, 2014 @willingtocope You're not admitting that the debt is yours unless you file a motion to dismiss. If you don't file a MTD, you're just saying that whether or not this debt is valid, the plaintiff didn't file suit in time. Quote Link to comment Share on other sites More sharing options...
Big Time Posted January 10, 2014 Author Report Share Posted January 10, 2014 I've seen legal pleadings that says something like: STATUTE OF LIMITATIONS The account alleged in Plainitff's complaint is time barred. This defense is alleged in the alternative and does not admit any of Plaintiff's allegations. or maybe Without admitting this debt exists, answering defendant asserts that the Statute of Limitations has passed. 1 Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 10, 2014 Report Share Posted January 10, 2014 @Big Time If one has irrefutable evidence that the SOL has passed, I wouldn't see a problem with admitting to the account. But if one is not 100% positive, then just assert the SOL as provided for in the previous post, and proceed with discovery. If the JDB did not provide a date of last payment in the complaint, the defendant would request that date in interrogatories. In a request for production of documents, it would be requested that the plaintiff provide a copy of the credit card statement that shows the last payment that the JDB claims was made. 1 Quote Link to comment Share on other sites More sharing options...
Big Time Posted January 10, 2014 Author Report Share Posted January 10, 2014 Good point. I appreciate everyone's input here. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 10, 2014 Report Share Posted January 10, 2014 yes for a few more months. I'm waiting it out.What I;m worried about with a sworn affidavit of last payment is that I can't do that without also admitting the account existed. I would go in denying I ever had the credit card in the first place. I've always been concerned by both using SOL as a defense or invoking arbitration. In both cases, you're kind of admitting the debt is yours...which might be used against you.Isn't this the sort of thing where you should ask for discovery? Something to the effect of "...I have no records in my possesion regarding this alleged debt and ask the plaintif to furnish complete and accurate accounting so that I may determine my responsibilty...".@Big Time @willingtocopeYou can say something like this..."Defendant denies owning a debt to Plaintiff, however to the extent this court finds a debt is owed, Defendant affirms no payment could have been made following January 1, 1995."And then you can explain why this is a fact. Things like "Defendant may have had an account with Plaintiff, however no such account was usable following that date." Or "Defendant closed all open credit card accounts on that date and never acquired any other such accounts from Plaintiff." Something like that. 1 Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted January 10, 2014 Report Share Posted January 10, 2014 @Big TimeIf this is a JDB:"Defendant was domiciled continuously in California during the period the alleged account agreement upon which Plaintiff's claim is based was allegedly entered into and defaulted upon; during the period Plaintiff's rights in the alleged cause of action accrued; and during the period the alleged claim's 4-year limitation period ran. Defendant at all times was available for service of process in California." (If this is true, of course.) Does Tennessee have a borrowing statute? Also, does Tennessee have a statute like Michigan's MCL 600.5869 "Rights governed by law under which right accrued. All actions and rights shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions or right of entry."? 1 Quote Link to comment Share on other sites More sharing options...
Big Time Posted January 11, 2014 Author Report Share Posted January 11, 2014 I'm not sure about the borrowing statute here... Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted January 11, 2014 Report Share Posted January 11, 2014 I'm not sure about the borrowing statute here...http://statutes.laws.com/tennessee/title-28/chapter-1/28-1-112TENNESSEE STATUTES AND CODES28-1-112 - Application of foreign statutes. Where the statute of limitations of another state or government has created a bar to an action upon a cause accruing therein, while the party to be charged was a resident in such state or such government, the bar is equally effectual in this state. [Code 1858, § 2783; Shan., § 4480; Code 1932, § 8607; T.C.A. (orig. ed.), § 28-114.] - See more at: http://statutes.laws.com/tennessee/title-28/chapter-1/28-1-112#sthash.LpHlQFVH.dpuf 1 Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 11, 2014 Report Share Posted January 11, 2014 @Brotherskeeper That statute says that the party to be charged would have to have been a resident of the other state when the cause of action accrued. Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted January 11, 2014 Report Share Posted January 11, 2014 @Brotherskeeper That statute says that the party to be charged would have to have been a resident of the other state when the cause of action accrued.Yes. Big Time said:I defaulted on all my credit cards back in late 2006, early 2007 when I was in California where the SOL is 4 years. I didn't make any payments after charge offs though. Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 11, 2014 Report Share Posted January 11, 2014 @Brotherskeeper He sure did. I forgot about that. Looks like he can use that statute, if necessary. Good catch! Quote Link to comment Share on other sites More sharing options...
Brotherskeeper Posted January 11, 2014 Report Share Posted January 11, 2014 @Brotherskeeper He sure did. I forgot about that. Looks like he can use that statute, if necessary. Good catch!And if Big Time's OC is incorporated in Delaware or Virginia, with a 3-year SOL, California may apply the shorter SOL:http://www.courts.ca.gov/partners/documents/2011SRL5eResurgence.pdf Quote Link to comment Share on other sites More sharing options...
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