Re: State Statute No. for credit card debt
dulaney said:
To: I Am Always Liable
It's been a couple of weeks since I received the web address you suggested for me to research state Statute no.s. I want to thank you for that, but whoa!!! A whole lotta information there, huh?! I'm not being lazy, really, spent time I didn't have and couldn't find exactly what I need to take to court. Got confused with the "Rules" under the headings that should apply to my situation. Not sure just exactly what I need. Going to court in a couple of days and need to give the judge the Colorado Statute of limitations for credit card debt/collection. Can you help me one more time? Again, I appreciate you helping me. You must think I'm an idiot. That's okay! Feel like one. Hope to be hearing from you soon. You've been great!
Sincerely,
Denise Dulaney
My response:
Okay, Denise, here ya go - - but you owe me a big kiss:
Colorado Statute
13-80-103.5. General limitation of actions - six years. (1) The following actions shall be commenced within six years after the cause of action accrues, and not thereafter:
(a) All actions to recover a liquidated debt or an unliquidated, determinable amount of money due to the person bringing the action, all actions for the enforcement of rights set forth in any instrument securing the payment of or evidencing any debt, and all actions of replevin to recover the possession of personal property encumbered under any instrument securing any debt;
(b) All actions for arrears of rent;
(c) All actions brought under section 13-21-109, except actions brought under section 13-21-109 (2);
(d) All actions by the public employees' retirement association to collect unpaid contributions from employers for persons who are not members or inactive members at the time the association first notifies an employer of its claim for unpaid contributions. This paragraph (d) shall apply to causes of action as provided in section 24-51-402 (2), C.R.S.
END OF STATUTE
I. General Consideration.
II. Applicable Actions.
I. GENERAL CONSIDERATION.
Law reviews. For article, "State Statutes of Limitation Contrasted and Compared", see 3 Rocky Mt. L. Rev. 106 (1931). For note, "Necessity for Filing Secured Claims in Bankruptcy Proceedings", see 3 Rocky Mt. L. Rev. 209 (1931). For article, "One Year Review of Agency, Partnerships, Corporations, and Municipal Corporations", see 41 Den. L. Ctr. J. 61 (1964). For note, "Rural Poverty and the Law in Southern Colorado", see 47 Den. L.J. 82 (1970). For article, "Inverse Condemnation -- A Viable Alternative", see 51 Den. L.J. 529 (1974). For article, "Federal Practice and Procedure", see 56 Den. L.J. 491 (1979). For article, "Will Contests -- Some Procedural Aspects", see 15 Colo. Law. 787 (1986).
Annotator's notes. (1) Since § 13-80-103.5 is similar to former § 13-80-110 as it existed prior to the 1986 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations of this section.
(2) For cases concerning when a cause of action accrues under this section, see the annotations to § 13-80-108.
The statute of limitations is intended to make parties more vigilant in asserting their supposed rights, and to deter them from bringing actions on state claims when witnesses may have died or moved away, or their recollection become impaired, or when other evidences may have disappeared, so that the truth of matters in controversy might be difficult of ascertainment. Toothaker v. City of Boulder, 13 Colo. 219, 22 P. 468 (1889).
It is to be construed liberally. It is the settled law in Colorado that courts look with favor upon statutes of limitation and construe them liberally. Chuchuru v. Chutchurru, 185 F.2d 62 (10th Cir. 1950).
The statute of limitations is regarded as a statute of repose, having regard to the peace and welfare of society, "not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill-founded, which may have been discharged, but the evidence of discharge lost". Hittson v. Davenport, 3 Colo. 597 (1877); Patterson v. Fort Lyon Canal Co., 36 Colo. 175, 84 P. 807 (1906).
It is a bar to the remedy and not to the right. Rogers v. Rogers, 96 Colo. 473, 44 P.2d 909 (1935); Brereton v. Benedict, 41 Colo. 16, 92 P. 238 (1907); Holmquist v. Gilbert, 41 Colo. 113, 92 P. 232 (1907); Foot v. Burr, 41 Colo. 192, 92 P. 236 (1907); Brown v. Bell, 46 Colo. 163, 103 P. 380 (1909); Cooley v. Rowan, 71 Colo. 17, 203 P. 669 (1922); Wyatt v. Burnett, 95 Colo. 414, 36 P.2d 768 (1934); Kiles v. Trinchera Irrigation Dist., 136 F.2d 894 (10th Cir. 1943).
Running of statute does not extinguish debt. While the statute of limitations may cause the remedy on a debt to be lost, it does not extinguish the debt. Estate of Ramsey v. State, Dep't of Revenue, 42 Colo. App. 163, 591 P.2d 591 (1979).
A statute of limitations drafted to relate to special cases controls over a general statute of limitations. Mohawk Green Apartments v. Kramer, 709 P.2d 955 (Colo. App. 1985).
Statute of limitations is personal bar which may be raised or waived by the defendant. Estate of Ramsey v. State, Dep't of Revenue, 42 Colo. App. 163, 591 P.2d 591 (1979).
Statute of limitations may be waived. The statute of limitations is a personal defense of which a defendant may or may not avail himself at his pleasure. Williams v. Carr, 4 Colo. App. 368, 36 P. 646 (1894); Owers v. Olathe Silver Mining Co., 6 Colo. App. 1, 39 P. 980 (1895); Foot v. Burr, 41 Colo. 192, 92 P. 236 (1907).
And is deemed waived if not pleaded. The statute of limitations may be waived, and where not pleaded in the first instance, it is presumed to have been waived. Owers v. Olathe Silver Mining Co., 6 Colo. App. 1, 39 P. 980 (1895); Chivington v. Colorado Springs Co., 9 Colo. 597, 14 P. 212 (1886); Atchinson T. & S. F. R. R. v. Tanner, 19 Colo. 559, 36 P. 541 (1894); Brown v. Bell, 46 Colo. 163, 103 P. 380 (1909).
Waiver for indefinite time permanently removing bar of statute is void. Agreement in a promissory note, that "we, the makers hereby waive all benefits of the statute of limitations", being a waiver for an indefinite time, and permanently removing the statute of limitations from operation, is void, and does not preclude the maker from interposing the statute of limitations as a defense. First Nat'l Bank v. Mock, 70 Colo. 517, 203 P. 272 (1921).
Attorney may not waive. The maker of a promissory note barred by the statute of limitations directs an attorney to attend a sale of land under a trust deed given to secure the note, and "protect his interest". He has no authority to waive the statute of limitations for his client. Ferris v. Curtis, 53 Colo. 340, 127 P. 236 (1912); First Nat'l Bank v. Mock, 70 Colo. 517, 203 P. 272 (1921).
Statutes of limitations are not retroactive unless expressly so providing. Since statutes of limitations are remedial only, it is competent for the general assembly to make them operate retroactively, but it must do so by expressly so providing. Jones v. O'Connell, 87 Colo. 103, 285 P. 762 (1930); Edelstein v. Carlile, 33 Colo. 54, 78 P. 680 (1904); Bonfils v. Public Util. Comm'n, 67 Colo. 563, 189 P. 775 (1920).
Action cannot be revived by general assembly after bar has attached. When the bar of a statute of limitations has once attached, the action cannot be revived by an act of the general assembly. Massachusetts Mut. Life Ins. Co. v. Colorado Loan & Trust Co., 20 Colo. 1, 36 P. 793 (1894).
Twenty-year period prescribed for execution upon judgments in § 13-52-102 and not the six-year period in this section is the applicable statute of limitations for child support arrearages. In re Aragon, 773 P.2d 1110 (Colo. App. 1989).
Statute of limitations runs against a city acting in its proprietary capacity in an action to recover unpaid utilities charges due to an error in billing procedure. Colorado Springs v. Timberlane Assoc., 807 P.2d 1177 (Colo. App. 1990), aff'd on other grounds, 824 P.2d 776 (Colo. 1992).
Function in which government is acting is not dispositive of whether limited sovereign immunity attaches. City is not immune from statute of limitations in action upon contract claim. Colorado Springs v. Timberlane Assoc., 824 P.2d 776 (Colo. 1992).
The six-year limitation period of subsection (1)(a) applies even against a governmental entity to recover a liquidated debt or an unliquidated, determinable amount of money due. Fishburn v. City of Colorado Springs, 919 P.2d 847 (Colo. App. 1995).
The two-year limitation period of § 13-80-102 (1)(h) for claims to be brought against a governmental entity is not applicable to the contract claims brought by employees and former employees against the city. Because to do so would allow a governmental entity to bring a contract claim against a nongovernmental entity within a three-year or longer period while a nongovernmental entity would be required to bring a similar claim against a governmental entity within a two-year period. Fishburn v. City of Colorado Springs, 919 P.2d 847 (Colo. App. 1995).
State statute of limitation rather than federal statute of limitation governs an action filed by a private party who is the assignee of a promissory note held by the Federal Deposit Insurance Corporation as receiver. Tivoli Ventures, Inc. v. Tallman, 852 P.2d 1310 (Colo. App. 1992).
An equitable tolling of a statute of limitations is limited to situations in which either the defendant has wrongfully impeded the plaintiff's ability to bring the claim or truly extraordinary circumstances prevented the plaintiff from filing his or her claim despite diligent efforts. Neither the actions of the defendants nor the lawsuit against the third party in this case in any way impeded the litigant's right to file suit. Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094 (Colo. 1996).
When a creditor on multiple debts applies an undesignated partial payment by the debtor to a debt on which the statute of limitations has not yet run, the payment tolls the statute of limitations on that debt. Drake v. Tyner, 914 P.2d 519 (Colo. App. 1996).
Applied in Kanarado Mining & Dev. Co. v. Sutton, 36 Colo. App. 375, 539 P.2d 1325 (1975); Carpenters & Millwrights Health Benefit Trust Fund v. Gardineer Dry Walling Co., 573 F.2d 1172 (10th Cir. 1978); Duncan v. Schuster-Graham Homes, Inc., 194 Colo. 441, 578 P.2d 637 (1978); Tamblyn v. Mickey & Fox, Inc., 195 Colo. 354, 578 P.2d 641 (1978); Hayden v. Board of County Comm'rs, 41 Colo. App. 102, 580 P.2d 830 (1978); McClanahan v. American Gilsonite Co., 494 F. Supp. 1334 (D. Colo. 1980); Malandris v. Merrill Lynch, Pierce, Fenner & Smith Inc., 703 F.2d 1152 (10th Cir. 1981), cert. denied, 464 U.S. 824, 104 S. Ct. 92, 78 L. Ed.2d 99 (1983); Republic Nat'l Bank v. Meridian Properties, Inc., 530 F. Supp. 169 (D. Colo. 1982); Siegel Oil Co. v. Gulf Oil Corp., 556 F. Supp. 302 (D. Colo. 1982); B.C. Inv. Co. v. Throm, 650 P.2d 1333 (Colo. App. 1982); Whatley v. Skaggs Cos., 707 F.2d 1129 (10th Cir. 1983); William B. Tanner Co. v. Mesa Broadcasting Co., 571 F. Supp. 28 (D. Colo. 1983); United Bank of Denver Nat'l Ass'n v. Wright, 660 P.2d 510 (Colo. App. 1983); Smith v. Union Supply Co., 675 P.2d 333 (Colo. App. 1983); Simpson v. Milne, 677 P.2d 365 (Colo. App. 1983); Magna Associates v. Torgrove, 585 F. Supp. 585 (D. Colo. 1984); Martinez v. Continental Enterprises, 697 P.2d 789 (Colo. App. 1984); Martinez v. Continental Enter., 730 P.2d 308 (Colo. 1986), affirming in part and reversing in part on other grounds, 697 P.2d 789 (Colo. App. 1984).
II. APPLICABLE ACTIONS.
A statute of limitations is applied only to cases clearly within its provisions. Wyatt v. Burnett, 95 Colo. 414, 36 P.2d 768 (1934); Glenn v. Mitchell, 71 Colo. 394, 207 P. 84 (1922).
Application to foreign corporation. Former § 13-80-110 could not be applied to subject a foreign corporation to greater liabilities than were imposed upon a similarly situated domestic corporation. Casselman v. Denver Tramway Corp., 39 Colo. App. 306, 568 P.2d 84 (1977), rev'd on other grounds, 195 Colo. 241, 577 P.2d 293 (1978).
Since this state has by § 7-8-122 (1) adopted a two-year statute of limitations applicable to dissolved domestic corporations, it would be both illogical and unconstitutional to apply to a foreign corporation, which has been dissolved pursuant to the laws under which it is governed by its state of incorporation, and which has received a certificate of withdrawal from this state, a statute of limitations which would subject it to liability for a period longer than that which this state would apply to a dissolved domestic corporation. Casselman v. Denver Tramway Corp., 39 Colo. App. 306, 568 P.2d 84 (1977), rev'd on other grounds, 195 Colo. 241, 577 P.2d 293 (1978).
This statute is a meritorious defense to an action on a promissory note. First Nat'l Bank v. Mock, 70 Colo. 517, 203 P. 272 (1921).
Action for money loaned may be brought within six years from last interest payment. The statute of limitations is not a bar to an action for money loaned when brought within six years from the date of the last payment of interest. Purdy v. Deprez, 39 Colo. 68, 88 P. 972 (1907).
It applies to action to recover usurious interest. The applicable statute of limitations for the common-law remedy of money had and received to recover usurious interest paid then is six years. Dennis v. Bradbury, 236 F. Supp. 683 (D. Colo. 1964), aff'd and rehearing denied, 368 F.2d 905 (10th Cir. 1966).
Reimbursement under lease. Where a long-term lease agreement is executed, and where the lessor subsequently pays the applicable sales taxes and invoices the amount paid to the lessee, but the lessee refuses to make reimbursement, this section is the applicable statutory section. Columbine Beverage Co. v. Continental Can Co., 662 P.2d 1094 (Colo. App. 1982).
In an action by a builder against the owners for damages for breach of contract prior to completion of construction, where the builder sought a liquidated determinable amount of money due it from the owners, i.e., 10 percent of the estimated cost of the house, it was an action of debt founded upon a contract included within the meaning of this section. Comfort Homes, Inc. v. Peterson, 37 Colo. App. 516, 549 P.2d 1087 (1976).
"Liquidated debt" and "unliquidated, determinable amount" construed. A debt is deemed "liquidated" if the amount due is capable of ascertainment by reference to an agreement or by simple computation. A debtor's dispute of or defenses against such claim, or any setoff or counterclaim interposed, does not affect this result. Similarly, if a contract fixes a price per unit of performance, a claim based thereon is "determinable" even though the number of units performed must be proven and is subject to dispute. Rotenberg v. Richards, 899 P.2d 365 (Colo. App. 1995).
A claim based on quantum meruit is not liquidated or determinable, because it seeks only reasonable compensation for services rendered, in an amount to be determined by the fact-finder. Rotenberg v. Richards, 899 P.2d 365 (Colo. App. 1995).
Statute does not apply to amount owed from partnership accounting. Because the amount due from the partnership accounting was not capable of ascertainment by reference to the partnership agreement or by a simple computation derived from the agreement, the statute does not apply. Tafoya v. Perkins, 932 P.2d 836 (Colo. App. 1996).
Action under § 10-4-708 of Colorado Auto Accident Reparations Act covered by this section as an action in debt or in assumpsit. Winstead v. Criterion Ins. Co., 781 P.2d 170 (Colo. App. 1989).
An action for negligent misrepresentation is based upon simple negligence, and thus such an action was governed by the former six-year statute of limitations rather than the three-year statute of limitations generally applicable for fraud. Ebrahimi v. E.F. Hutton & Co., Inc., 794 P.2d 1015 (Colo. App. 1989).
Claim for breach of contract against construction contractor is not governed by two-year statute of limitations for actions against contractors and builders (now § 13-80-104) but by six-year statute of limitations for contract actions in this section, but claim against contractor for damages caused by delays in construction is covered by two-year statute. Frisco Motel Partnership v. H.S.M. Corp., 791 P.2d 1195 (Colo. App. 1989).
ERISA action to recover pension and benefit contributions is analogous to state breach of contract action and subject to the six year statute of limitations under this section. Trustees of Health Ben. Trust v. Lillard and Clark, 780 F. Supp. 738 (D. Colo. 1990); Aull v. Cavalcade Pension Plan, 988 F. Supp. 1360 (D. Colo. 1997).
The Colorado statute of limitations for the enforcement of rights which are set forth in an instrument securing the payment of a debt is six years after the claim for relief accrues and a claim for relief on a promissory note accrues the day after the note matures. Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244 (Colo. 1994).
The statute of limitations applies to each installment due on a note separately and does not begin to run on any one installment until that installment is due. Right to foreclose on note is not extinguished because certain payments are more than six years overdue and foreclosure proceedings are just begun. Application of Church, 833 P.2d 813 (Colo. App. 1992).
If a money obligation is payable in installments, a separate cause of action arises on each installment and the statute of limitations begins to run against each installment when it becomes due, regardless of whether the holder possesses the option to declare all installments payable in the event of default on a single payment. Application of Church, 833 P.2d 813 (Colo. App. 1992).
In the case of a default on installment payments, the statute of limitations must be deemed to commence running on the date of the cure as to any installment payments due prior to that date. Parker v. Luttrell, 926 P.2d 179 (Colo. App. 1996).
Because the statute of limitations under this section had not run as of the date when the FDIC's claim for relief on promissory note accrued, the federal statute of limitations preempted this section as a result of the FDIC's receivership. Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244 (Colo. 1994).
Assignment of a promissory note by the FDIC to private party allows the assignee to seek recovery pursuant to the federal statute of limitations, facilitates expunging the federal system of failed bank assets, and is consistent with the intent and language of the federal statute as well as the requirements of the common law. Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244 (Colo. 1994).
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California Code of Civil Procedure section
337.
Within four years:
1. An action upon any contract, obligation or liability founded upon an instrument in writing, except as provided in Section 336a of this code; provided, that the time within which any action for a money judgment for the balance due upon an obligation for the payment of which a deed of trust or mortgage with power of sale upon real property or any interest therein was given as
security, following the exercise of the power of sale in such deed of trust or mortgage, may be brought shall not extend beyond three months after the time of sale under such deed of trust or mortgage.
2. An action to recover (1) upon a book account whether consisting of one or more entries; (2) upon an account stated based upon an account in writing, but the acknowledgment of the account stated need not be in writing; (3) a balance due upon a mutual, open and current
account, the items of which are in writing; provided, however, that 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.
3. An action based upon the rescission of a contract in writing. The time begins to run from the date upon which the facts that entitle the aggrieved party to rescind occurred. Where the ground for rescission is fraud or mistake, the time does not begin to run until the discovery by the aggrieved party of the facts constituting the fraud or mistake. Where the ground for rescission is misrepresentation under Section 359 of the Insurance Code, the time does not begin to run until the representation becomes false.
California Code of Civil Procedure section
337a.
The term "book account" means a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor or
fiduciary, and is kept in a reasonably permanent form and manner and is (1) in a bound book, or (2) on a sheet or sheets fastened in a book or to backing but detachable therefrom, or (3) on a card or cards of a permanent character, or is kept in any other reasonably permanent form and manner.
Good luck, Denise. Let us know how it turns out.
IAAL
[Edited by I AM ALWAYS LIABLE on 12-19-2000 at 01:09 PM]
