antonious13

California Statute of Limitations Question

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Hello, 

Midland sued me in California back in July 2015. I fought the case, and they dismissed the case without prejudice before submitting their documents that I requested. 

The alleged account was a Sears credit card on which the last payment (according to the statements provided in the law suit) was paid in June 2013. The two statements that Midland sent with the Summons and Complaint was a July 2013 statement from Sears (which would have been the first missed payment on the account) and a March 2014 statement from Sears. My credit report shows that Midland opened the account in June 2014. I know that California has a four year SOL for credit card debt. When did the clock start ticking for this account? Was it June 2013 when the account was last paid? July 2013 when the first payment was missed? March 2014 when Sears last tried to request payment? Or, June 2014 when Midland opened the account? 

I really want to tell Midland to go kick rocks and stop sending me notices, but I am afraid they will try to sue again. Litigation is expensive. 

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So it is July when the 1st payment was missed. They got it in just under the wire.  But don't worry you can beat them.

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19 hours ago, antonious13 said:

Hello, 

Midland sued me in California back in July 2015. I fought the case, and they dismissed the case without prejudice before submitting their documents that I requested. 

The alleged account was a Sears credit card on which the last payment (according to the statements provided in the law suit) was paid in June 2013. The two statements that Midland sent with the Summons and Complaint was a July 2013 statement from Sears (which would have been the first missed payment on the account) and a March 2014 statement from Sears. My credit report shows that Midland opened the account in June 2014. I know that California has a four year SOL for credit card debt. When did the clock start ticking for this account? Was it June 2013 when the account was last paid? July 2013 when the first payment was missed? March 2014 when Sears last tried to request payment? Or, June 2014 when Midland opened the account? 

I really want to tell Midland to go kick rocks and stop sending me notices, but I am afraid they will try to sue again. Litigation is expensive. 

Here's an explanation by a NACA attorney in the SF Bay area:

http://www.sfbay-law.com/the-four-year-statute-of-limitations-as-applied-to-debt-collection/

'"Credit card debts are based on written agreements provided to the consumer either before or after the account is opened. For purposes of the statute of limitations, a contract is “in writing” under California law if the party accepts the offer subject to a written contract. Amen v. Merced County Title Co. (1962) 58 Cal. 2d 528, 532. In Amen, the California Supreme Court held that a contract may be “in writing” for purposes of the statute of limitations even though it was accepted orally or by an act other than signing if the party accepted the offer and agreed to the terms of a written contract.

In contract actions, the statute runs from the occurrence of the last element essential to the cause of action, when the plaintiff discovers or should discover all facts essential to his cause of action. C.C.P. § 312; April Enterprises, Inc. v. KTTV (1983) 147 Cal. App. 3d 805, 826-827; Fox v. Ethicon Endo Surgery (2005) 35 Cal. 4th 797, 806.

Although consumer loans and credit card agreements differ, they generally require the consumer to make a minimum payment by a specified due date, and provide that the entire balance may become due in the event of default. Failure to make the minimum payment when it is due is a default or breach of the agreement. If the consumer does not cure the default by paying the past-due amount, the cause of action has accrued. In that case, the statute of limitations for an action to recover the unpaid installment runs from the date the installment payment was due. White v. Moriarty (1993) 15 Cal. App. 4th 1290,1299."'

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@antonious13 From the same article:

http://www.sfbay-law.com/the-four-year-statute-of-limitations-as-applied-to-debt-collection/

"Account Stated

Account stated claims in debt collection cases often allege that a “final statement” was sent to the consumer, showing the balance due and demanding payment in full. However, the mailing of the “final statement” may have no bearing on the statute of limitations. By the time of that statement is sent, most likely the account is already delinquent and the statutory period has already started running.

C.C.P. § 337(2) states: “Where an account stated is based upon an account of one item, the time shall begin to run from the date of said item, and where an account stated is based upon an account of more than one item, the time shall begin to run from the date of the last item.”

California law does not define “item” as used in this section. As applied to credit cards, the most logical interpretation of this section is that the statutory period begins to run from the date of the last purchase/charge or the last payment on the account, whichever is later. After four years, the debt is time-barred (uncollectible)."

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