Re: doesnt seem fair
dd4525 said:
Well that just doesnt seem fair. They sent me the check and this is the first time they have said anything about it being sent in error. I can understand a month or two after they sent it but 5 years..
thank you for the help.. my husband will be real happy to hear this one..
My response:
However, I never said that your husband DOESN'T have a viable "defense" to such a lawsuit. Your post, and your subsequent response to me, indicate a "hint" to that potential defense.
It's called "Laches" - pronounced "latch-ease" - this defense is potentially viable despite the fact that the insurance company is still within the Statute of Limitations. Even if the statute of limitations has not yet run, unreasonable delay in commencing suit may bar injunctive or other equitable relief if defendant has been prejudiced by the delay (e.g., through loss of evidence): "It is not so much a question of the lapse of time as it is to determine whether prejudice has resulted.
Thus, relief may be denied if it is shown that the moving party has been guilty of unreasonable delay in seeking relief, causing prejudice to the opposing party. [McCreadie v. Arques (1967) 248 Cal.App.2d 39, 46-47, 56 Cal.Rptr. 188, 194--plaintiff would be prejudiced by having to prove matters 5 years old if judgment set aside] The greater the prejudice to the responding party, the more likely it is that the court will determine that equitable defenses such as laches or estoppel apply to the request to vacate a valid judgment.
IAAL
