Thank you IAAL! Can you interpret this?

[tccampa]

This legal-ese is horrible. Does the paragraph below mean that the creditor only has six months from the date of the non-suit to re-file suit? Also, this attorney filed suit in a different (city) court, and represents a different collection agency trying to collect the same debt as before. Can I still use the statute of limitations as my defense?

Thank you so much for providing lucid answers!

E. 3. If a plaintiff suffers a voluntary nonsuit as prescribed in § 8.01-380, the statute of limitations with respect to such action shall be tolled by the commencement of the nonsuited action, and the plaintiff may recommence his action within six months from the date of the order entered by the court, or within the original period of limitation, or within the limitation period as provided by subdivision B 1, whichever period is longer. This tolling provision shall apply irrespective of whether the action is originally filed in a federal or a state court and recommenced in any other court, and shall apply to all actions irrespective of whether they arise under common law or statute.


By the way, B 1 = "Effect of death of a party."

April.

 

[I AM ALWAYS LIABLE]

This legal-ese is horrible. Does the paragraph below mean that the creditor only has six months from the date of the non-suit to re-file suit? Also, this attorney filed suit in a different (city) court, and represents a different collection agency trying to collect the same debt as before. Can I still use the statute of limitations as my defense?

Thank you so much for providing lucid answers!

E. 3. If a plaintiff suffers a voluntary nonsuit as prescribed in § 8.01-380, the statute of limitations with respect to such action shall be tolled by the commencement of the nonsuited action, and the plaintiff may recommence his action within six months from the date of the order entered by the court, or within the original period of limitation, or within the limitation period as provided by subdivision B 1, whichever period is longer. This tolling provision shall apply irrespective of whether the action is originally filed in a federal or a state court and recommenced in any other court, and shall apply to all actions irrespective of whether they arise under common law or statute.


By the way, B 1 = "Effect of death of a party."

April.

My response:

You can always use the Statute of Limitations, if it is applicable. I reviewed the above Statute and the other Statutes concerning the above. It appears to me that the above Statute is used "during" trial, like I mentioned to you in your other post.

Now, I need some clarification from you.

Was this action already at the "trial stage" or was this matter merely filed and served against you ?

What is the paper titled that you received to tell you that this action was on hold, or dismissed, or non-suited ?

What does that paper say ?

IAAL

P.S. Please, use the "Post a Reply" button so we can keep all of your responses together under one thread. Thanks.

[Edited by I AM ALWAYS LIABLE on 05-22-2001 at 03:13 PM]

 

[tccampa]

Here's the deal...

In 1999, a collection attorney filed suit against me for an unpaid credit card debt. (I'll skip the details.)

In July 1999, I appeared in court and stated that I wished to dispute the case. The judge then ordered the attorney/plaintiff to produce a "Bill of Particulars" for me within 30 days, and I had to respond with a "Grounds of Defense." 30 days passed, and I received a notice from the court that the attorney/plaintiff had filed a "voluntary nonsuit." I don't have the paper with me, but it came from the court directly.

Recently, May 2001, I received a "Warrant in Debt" and had to appear in court again for the same debt, same attorney. This time, the attorney filed suit in a different but nearby city (I moved). In addition, the attorney claims to represent not the credit card company, but a collection agency that is trying to collect the debt. As before, I stated that I wished to dispute the debt; the judge once again ordered the "Bill of Particulars" in 30 days and I have to respond to them. Then a new trial date was set for September. Do I have a chance to fight this with the statute of limitations?

I hope this helps you help me. The law is very confusing and never seems to be helpful. Thank you so much for your help...it is great to find someone who is knowledgable and willing to speak regular English.

April

 

[I AM ALWAYS LIABLE]

Re: Here's the deal...

In 1999, a collection attorney filed suit against me for an unpaid credit card debt. (I'll skip the details.)

In July 1999, I appeared in court and stated that I wished to dispute the case. The judge then ordered the attorney/plaintiff to produce a "Bill of Particulars" for me within 30 days, and I had to respond with a "Grounds of Defense." 30 days passed, and I received a notice from the court that the attorney/plaintiff had filed a "voluntary nonsuit." I don't have the paper with me, but it came from the court directly.

Recently, May 2001, I received a "Warrant in Debt" and had to appear in court again for the same debt, same attorney. This time, the attorney filed suit in a different but nearby city (I moved). In addition, the attorney claims to represent not the credit card company, but a collection agency that is trying to collect the debt. As before, I stated that I wished to dispute the debt; the judge once again ordered the "Bill of Particulars" in 30 days and I have to respond to them. Then a new trial date was set for September. Do I have a chance to fight this with the statute of limitations?

I hope this helps you help me. The law is very confusing and never seems to be helpful. Thank you so much for your help...it is great to find someone who is knowledgable and willing to speak regular English.

April

My response:

Okay, so it did get to the trial level - - ever so short, but at trial nonetheless.

Virginia has a 3-year Statute of Limitations on Credit Card (Open Account) debts.

So, in view of the information you've given, let's take a look at the statute:

The Statute begins . . .

"E. 3. If a plaintiff suffers a voluntary nonsuit as prescribed in § 8.01-380, the statute of limitations with respect to such action shall be tolled by the commencement of the nonsuited action, . . . "


Alright, at this point, I must assume that the lawsuit was filed within the 3-year S.O.L. What I don't know is, by the time the action was filed, how much of the S.O.L. was remaining - - which is important. Be that as it may, once a "voluntary nonsuit" is declared, the S.O.L. is then "tolled" (stopped).


The Statute continues . . .

" . . . and the plaintiff may recommence his action within six months from the date of the order entered by the court, or within the original period of limitation, or within the limitation period as provided by subdivision B 1, whichever period is longer."


Okay, then sometime in August or September 1999, the Plaintiff creditor failed to comply with the court's order and the court notified you of the "Nonsuit", effectively requiring the Plaintiff creditor to dismiss it's own lawsuit against you. But, this Plaintiff creditor never filed against you again within the 6 month period, opting instead to sell the debt to someone else. However, (and this is why it was important to know how much time was left on the original S.O.L. [see above], the new creditor filed against you, again on the same debt, presumably "within the original period of limitation . . . WHICHEVER IS LONGER." So this new creditor plaintiff filed within the "tolled" period of time because while it was more than 6 months since the "nonsuit" was filed, it was still filed again within the "original period of limitation".

So, to answer your question - - finally - - since the assumption is being made by me that there was still time left on the "original" S.O.L., all this new creditor needs to do is file and serve you with a "Bill of Particulars". Then, upon that occurrence, and in my opinion, using the defense of the Statute of Limitations would not apply to you, and you would then be required to answer the "Bill of Particulars". If this new creditor Plaintiff fails to serve you with a "Bill of Particulars", the presumption by me is that there would be no more time left on the "original" Statute of Limitations, and the new creditor couldn't refile the action against you for a 3rd time.

Whew ! !

Good luck to you.

IAAL

 

[tccampa]

How do I determine the original S.O.L?

First, I want to thank you for your generosity in donating your time to my questions. I want to make dinner for you or something(!)

This is the last question I promise...How can I determine the original S.O.L. to count back the 3 years? Does it begin when the account was "charged off" or closed or sent to collections?

Thank you again,
April.

 

[I AM ALWAYS LIABLE]

Re: How do I determine the original S.O.L?

First, I want to thank you for your generosity in donating your time to my questions. I want to make dinner for you or something(!)

This is the last question I promise...How can I determine the original S.O.L. to count back the 3 years? Does it begin when the account was "charged off" or closed or sent to collections?

Thank you again,
April.

My response:

Ah, shucks April. How nice of you to say ! Can you cook Pheasant ? But, it's the "or something" part that's revving my engine !

Okay, the S.O.L. begins to run from the next due date after your last payment on the card, or from the last date you used the card, whichever is later.

And April, come here . . . a little closer to your screen; that's right, just a little closer . . . just between you and me . . . you can come back to these Boards and ask all the questions you like ! I may or may not be the one answering (I hope to), but you're always welcome at FreeAdvice.Com !

You know, Steve Halket, ALawyer, and a whole host of others are really, really, really good also.

Thanks for stopping by.

IAAL

[Edited by I AM ALWAYS LIABLE on 05-22-2001 at 09:15 PM]