Statutory of Limitation for Credit Card

[wine4me]

Luckily for you (and the rest of this board) the idiot spewing the bad advice has lost his posting privileges. "Tolled" means "stopped". In other words, while there is a 6yr SOL for the debt in NY, once you left the state (for more than 4 months), then that time you spent away doesn't count towards the SOL. Most states have a similar rule - it prevents people from moving to another state to avoid paying their debts.

Here's the statute:

Based on my quick reading of your posts, now that you are in CA, it appears there are several years left on the SOL and you can be sued on this debt. (Doesn't mean you will be, only that there is no viable SOL defense for you if you are).

As far as whether you need an attorney or not - that's entirely up to you. I always recommend hiring one if you can (and even if you can't). However, of all the types of lawsuits out there, this is probably the one people are most likely to be able to handle themselves (although it does require you do your 'homework'. Don't ever expect to walk into court not knowing anything and coming out with a win, even if you have the best defense in the world).

Good luck.

I did not leave NY state after the debt collection action had been taken. I left the state for personal reasons and had no idea that there were debts outstanding at the time.

 

[Chien]

My question is simple, does the 5 1/2 years I live in CA count towards the SOL? Since I think SOL in California is only 4 years for open ended accounts. I lived in NY from 2/2001 to 4/2002, so all up it has been more than six years.

And the simple answer is no, with the exception of Breeze’s opinion to the contrary. YAG showed you a NY statute that provides for the SOL to be tolled upon a continuous absence from the state of at least 4 months – you were gone 7 years, returned for 14 months and were gone again. You have resided in CA for 5 ½ years. I told you that there is no CA statute and no case law to my knowledge that creates some “long enough” exception to the NY rule and allows you the benefit of the CA SOL.

The attorneys in the thread believe you are vulnerable. GulfBreeze says you “have plenty of leverage” and are immunized. You can consult with a lawyer of your choice for an additional opinion.

Many tolling statutes, including the posted NY citation, speak in terms of “absent or intentionally concealed” – you can remain in the state and the statute can still be tolled, if you are hiding or evading. Conversely, there is much case law that says the statute is not tolled if you are reasonably susceptible to service of process. I don’t know with certainty, but there could be case law to the effect that, notwithstanding the language of the NY statute, if you had moved 5 miles to New Jersey, left a forwarding address and run for mayor, you were sufficiently public that the statute would not be tolled. You were susceptible to service.

However, you moved out of the country, back in to one Coast for a year and then to the other Coast, and I think it’s less likely that anyone who wanted to find you could readily do it. If that’s true, the language of the NY statute applies, the 6 years has not been exhausted and there is no CA escape clause.

Take a risk, take a settlement, rely on Breeze or get another opinion. There are no guarantees.

 

[Chien]

I am really scared that they would sue me for something that is so old and I really have no recollection of owing

You have two options at this time:
(1) Ignore them and hope that they don’t sue.
(2) Contact them, discuss the debt and try to settle. (You run the risk of re-setting the SOL, if you do have an argument that it has run.)

If you ignore them and they sue, you have two options:
(1) Try to negotiate a settlement post-suit. A settlement, if accepted, will be for a higher amount.
(2) Fight them in court to try to prove that the CA SOL applies and the debt is time-barred. Use of an attorney would help.

 

[wine4me]

Thank you Chien for the great advice. I will wait and see what happens.

 

[wine4me]

One more thing, if I ignore them when did my SOL start ticking then?

 

[Chien]

if I ignore them when did my SOL start ticking then?

That goes to the heart of this.

In my opinion, it was when they found you and renewed demands for payment. By the alterative view, I suppose it would have to be sometime 3-4 years ago, when the "long enough" exception kicked in and you either had the benefit of the CA SOL or the benefit of "time spent in NY without suit" + time in CA.

Actually, I don't know how you calculate either with any particularity, and I don't see how discovery could help. It doesn't really matter because, if they believe it hasn't run, they have to file suit before they think it will. That's a reason why DC's thought seemed to make sense, but you have to choose your own direction.

 

[GulfBreeze]

That goes to the heart of this.

In my opinion, it was when they found you and renewed demands for payment.

that is 100% WRONG**************and you know that very well. It's not the job of the debtor to make sure that they know where they are every second. That is the job of the debt collector by pulling records thru credit reports or other means. The debt clock starts to ticks at the last use of the card in some states, and the deliquent date on other states. Quit misleading people with false statements.

 

[TigerD]

that is 100% WRONG**************and you know that very well. It's not the job of the debtor to make sure that they know where they are every second. That is the job of the debt collector by pulling records thru credit reports or other means. The debt clock starts to ticks at the last use of the card in some states, and the deliquent date on other states. Quit misleading people with false statements.

You claim it is wrong -- prove it. Cite the state code or relevant controlling court case. If you can't -- shut up.

DC

 

[GulfBreeze]

You claim it is wrong -- prove it. Cite the state code or relevant controlling court case. If you can't -- shut up.

DC

okay....NOW YOU CAN SHUT UP.

§ 8.01-249.
(8). In actions on an open account, from the later of the last payment or last charge for goods or services rendered on the account.

 

[TigerD]

lol once again GB you prove you don't know what you are talking about.

For the OP:
Chien is an attorney that deals with this stuff daily. I own a small collection agency and have held management positions with the big boys in the field. GB is a professional debtor. You can read the posts and make up your own mind.

DC

 

[GulfBreeze]

lol once again GB you prove you don't know what you are talking about.

For the OP:
Chien is an attorney that deals with this stuff daily. I own a small collection agency and have held management positions with the big boys in the field. GB is a professional debtor. You can read the posts and make up your own mind.

DC

Hence...what he means is...Chien is one of those "guys" you have to deal with when fighting these types of debts...or so he claims to be an attorney. Personally, I think he got his out of a cracker-jack box. As for DC...I think what he means is he owns a small COOP and handles a small group of young pig farmers on his farm. Manure (better known as BS) is his speciality.

Thanks for the "professional" title you gave me. While I have been very successful in winning these types of debts, I don't claim to be a pro.

I just use the law to suit my needs. I can't help it that the law gives me some advantages in which you two are so upset that I let them out of the bag for all to see.

 

[Shay-Pari'e]

Gosh, deleted again. Oh, by the way, try googling a different name for youself Jason.

 

[Chien]

okay....NOW YOU CAN SHUT UP.

§ 8.01-249.
(8). In actions on an open account, from the later of the last payment or last charge for goods or services rendered on the account.

Breeze – that’s wonderful. The OP and other readers will profit from that. DC asked for a citation and you gave some numbers prefaced by the squiggly thing. Looks vaguely like it might be a citation – from who or what, I have no idea. Relevant? No. Not enough information in the whole thread. I know it’s not a CA citation, and I’m reasonably sure it’s not a NY citation. Let’s see – the OP lived in Australia . . . maybe.

Would you like to be right? You’re right. There. Happy? Now it’s time to put a sock in it and a nail in the thread.

Want to be happier? The post doesn’t say when the card was last used. Uh-oh. But, if it was, oh, say 18 years ago, and the OP put it in a drawer and left NY 13 year ago, you’ve got a strong argument. Who said you weren’t a pro?

Why, if it was last used 20-25 years ago, he shouldn’t have even been posting. Right? The old SOL thing, huh?

Of course, if it was 13-14 years ago, those pesky attorneys may have a point, even using the Australian citation. Ask the OP, if he comes back. For now, you’re right, right, right about everything, and I’m hoping he’s talking to an attorney.

By the way – me, an attorney? Well, not out of a Cracker Jacks box. I was just walking by when an attorney was hit by a steam roller (those things happen in CA). Incredible coincidence. Same name of the Bar card and it’s been smooth sailing since. But I keep telling you that I don’t sue people like you. Keep telling you I never dealt in junk.

Oh, and spare readers the source of the numbers and squiggly thing. It's not important.

Now, this is finished and there’s only one thing left – that’s that you to keeeeep going back to your little cases. Make me happy; be informative and don't preen. They are going to continue to come up until the subject makes you unhappy again (your other posts in other forums?). That’s so unnecessary. Save it to tell your grandchildren: The Day I Defeated the Bloodsucking JDB Hoards of Northwest Florida. Shorten and polish the title, add some graphics and you may be able to option the manuscript.

 

[GulfBreeze]

CALIFORNIA CODES
CODE OF CIVIL PROCEDURE
361. When a cause of action has arisen in another State, or in a
foreign country, and by the laws thereof an action thereon cannot
there be maintained against a person by reason of the lapse of time,
an action thereon shall not be maintained against him in this State,
except in favor of one who has been a citizen of this State, and who
has held the cause of action from the time it accrued.

You have been in CAL for more than 4 years. You are now a resident of CAL and have been since 2002. If, and IF they sue you, they will have to sue you in CAL where the SOL is 4 years. I would think you are safe with the SOL defense. But hey, Chien will chime in and say otherwise I am sure....

 

[You Are Guilty]

You have been in CAL for more than 4 years. You are now a resident of CAL and have been since 2002. If, and IF they sue you, they will have to sue you in CAL where the SOL is 4 years. I would think you are safe with the SOL defense. But hey, Chien will chime in and say otherwise I am sure....

Well, he'd be right. See below.

CALIFORNIA CODES
CODE OF CIVIL PROCEDURE
361. When a cause of action has arisen in another State, or in a
foreign country, and by the laws thereof [highlight]an action thereon cannot
there be maintained against a person by reason of the lapse of time[/highlight],
an action thereon shall not be maintained against him in this State,
except in favor of one who has been a citizen of this State, and who
has held the cause of action from the time it accrued.

Had you been paying attention, there is no SOL defense in NY because the statute tolled during the OP's absence from the state. Thus, the section you cited is inapplicable.