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SOL in Florida


SunnyStorms
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I have a question concerning statute of limitation on credit card debt in the state of Florida. I have a credit card debt that will reach its "SOL" on June 1, 2016. I recently became aware that a collections atty filed a lawsuit against me on April 12, 2016. My question is:  If I were to be served with a summons on June 2nd or beyond, would the case be dismissed because the SOL expired on June 1st, or would a judge allow the case to continue because the lawsuit was filed prior to the actual expiration of the SOL?

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4 hours ago, SunnyStorms said:

If I were to be served with a summons on June 2nd or beyond, would the case be dismissed because the SOL expired on June 1st, or would a judge allow the case to continue because the lawsuit was filed prior to the actual expiration of the SOL?

The lawsuit will continue.  The date the suit is filed determines whether it was filed timely in relation to the SOL not the date you are served.  

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22 minutes ago, SunnyStorms said:

I am interested however, in whether your response is merely your opinion or is it based on a specific Florida statute?

It is basic law.  You can google this and find out the exact same thing.  The SOL on a criminal case would be the same.  The date is when the state brings charges not when the Defendant is arrested on them.  If you punch someone on May 5th 2000 and the SOL is 3 years and the state waits until June 1st 2003 then it is too late and the SOL is expired.  If they file the suit on May 4th 2003 and arrest you on June 1st then it is "commenced" timely and the case will proceed.   

22 minutes ago, SunnyStorms said:

I am further interested in whether or not you're a licensed attorney well versed in Florida civil procedure?

I am not an attorney but fairly familiar with basic law regarding the SOL and other things in this situation.  You can consult a consumer attorney for free to confirm this if you wish go to NACA Attorney and search for one in FL.

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@SunnyStorms

The majority of the members of this site are not attorneys.   However, @LawKitty is an attorney and, hopefully, she will respond.  If she does not, check out NACA.   In the meantime, here are FL court rules and statutes.

 

Florida Rule of Civil Procedure 1.050.  When Action Commenced

Every action of a civil nature shall be deemed commenced when the complaint or petition is filed except that ancillary proceedings shall be deemed commenced when the writ is issued or the pleading setting forth the claim of the party initiating the action is filed.

FL Statute 95.011

95.011 Applicability.—A civil action or proceeding, called “action” in this chapter, including one brought by the state, a public officer, a political subdivision of the state, a municipality, a public corporation or body corporate, or any agency or officer of any of them, or any other governmental authority, shall be barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere.

FL Statute 95.11

95.11 Limitations other than for the recovery of real property.—Actions other than for recovery of real property shall be commenced as follows:

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  • 3 weeks later...

The date of filing the lawsuit is what determines if it is within SOL.  When did you last pay on the debt?  If the case gets dismissed and they have to refile, it will then be outside of SOL, if your dates are correct.

 

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The initial lawsuit was filed prior to the SOL. However, service never took place and plaintiff attorney filed for a  'Motion for Enlargement of Time' three (3) months after the SOL Expired. The judge granted the motion supposedly giving plaintiff another 120 days in which to serve. Since this motion for the extension was filed those 3 months after expiration of the SOL expired, my question is whether or not it would still be valid?

 

Thank you for responding...

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It's still valid because the lawsuit was still active or open.  It's customary for Judges to give Plaintiffs additional time to serve a Defendant.  Plaintiff probably filed the motion for enlargement of time to get service because they didn't want the suit to get dismissed for lack of service.  But at some point, a Judge will generally stop allowing extensions to get a party served, but of course, it depends on what county.  Some counties will let a case linger for years open with no activity while others will file notices for lack of prosecution if the case is inactive too long.

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So you're saying it's the sole discretion of the judge to grant extension after extension if he or she so chooses? There's no limit on these? Also if the process server lied on the affidavit for non-service for the original summons and I can prove it, does that make a difference?

Thanks again.

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