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HELP! Statute of Limitations Met During Discovery


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Good afternoon,

The debt my JDB is suing me for has reached the SOL for my state (Michigan) now that we are in the DISCOVERY phase of my case.

Is there anything I can do at this point even though I've denied this debt in my answer and affidavit or am I screwed in terms of bringing up the SOL?

Thanks....

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53 minutes ago, willingandobedient said:

Good afternoon,

The debt my JDB is suing me for has reached the SOL for my state (Michigan) now that we are in the DISCOVERY phase of my case.

Is there anything I can do at this point even though I've denied this debt in my answer and affidavit or am I screwed in terms of bringing up the SOL?

Thanks....

The SOL was tolled (stopped) when the complaint was filed with the court.  If the SOL had not expired when the complaint was filed, the action is still within that SOL.

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@BV80 One caveat on the tolling is if the service of process is completed within 91 days of filing of the complaint, unless plaintiff asks the judge for an extension upon demonstrating due diligence. On the expiration of the summons, the action is deemed dismissed without prejudice as to a defendant who has not been served with process as provided under MCR 2.102(E)(1).

http://sowell-law.com/community-association-law/articles/serprocess.pdf

"FILING, THE SUMMONS, AND THE STATUTE OF LIMITATIONS
What effect does the filing of a complaint and the issuance of a summons have on a statute of limitation? MCL 600.5856(a), as amended effective April 22, 2004, provides: 

The statutes of limitations or repose are tolled in any of the following circumstances:
(a) At the time the complaint is filed, if a copy of the summons and complaint are served
on the defendant within the time set forth in the supreme court rules
.

Under (a), the statute of limitations is tolled upon the filing of the complaint IF the complaint is subsequently served on the defendant within the time set forth in the supreme court rules. Thus, if the complaint is filed on the last day of the statute of limitations, the plaintiff still has that time provided by MCR 2.102** to serve the defendant. As noted above, a summons is good for 91 days from the date of filing of the complaint and may be extended for up to one year from the date of filing if the plaintiff can establish due diligence in attempting to serve the complaint. As long as the defendant is served prior to expiration of the summons, the complaint is not barred by the statute of limitations even though service may occur after the statute would have otherwise expired."

**MCR 2.102 

(D) Expiration. A summons expires 91 days after the date the complaint is filed. However, within those 91 days, on a showing of due diligence by the plaintiff in attempting to serve the original summons, the judge to whom the action is assigned may order a second summons to issue for a definite period not exceeding 1 year from the date the complaint is filed. If such an extension is granted, the new summons expires at the end of the extended period. The judge may impose just conditions on the issuance of the second summons. Duplicate summonses issued under subrule (A) do not extend the life of the original summons. The running of the 91-day period is tolled while a motion challenging the sufficiency of the summons or of the service of the summons is pending.

(E) Dismissal as to Defendant Not Served.

(1) On the expiration of the summons as provided in subrule (D), the action is deemed dismissed without prejudice as to a defendant who has not been served with process as provided in these rules, unless the defendant has submitted to the court’s jurisdiction. As to a defendant added as a party after the filing of the first complaint in the action, the time provided in this rule runs from the filing of the first pleading that names that defendant as a party.

(2) After the time stated in subrule (E)(1), the clerk shall examine the court records and enter an order dismissing the action as to a defendant who has not been served with process or submitted to the court’s jurisdiction. The clerk’s failure to enter a dismissal order does not continue an action deemed dismissed.

(3) The clerk shall give notice of the entry of a dismissal order under MCR 2.107 and record the date of the notice in the case file. The failure to give notice does not affect the dismissal.

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