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Asserting the Statute of Limitation


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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.  

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Guest usctrojanalum

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.  

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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.

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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...".

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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.

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@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.

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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 @willingtocope

You 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.

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@Big Time

If 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."? 

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I'm not sure about the borrowing statute here...

http://statutes.laws.com/tennessee/title-28/chapter-1/28-1-112

TENNESSEE STATUTES AND CODES
28-1-112 - 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.]  
 
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@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.

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@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 

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