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Can the statute of limitations on a unsecured loan be waived in California?

Temecula, CA |

I borrowed money and signed a written contract in 2004 in the amount of $2500. The loan defaulted in 2005 there has been no activity since. The debt has been sold at least 6 times. A lawyer filed a lawsuit against me on 2/1/13 and in the complaint claims I waived the statute of limitations in the agreement from 2004. I can't find my contract and I don't remember signing any such waiver. There was no proof or contract attached to the complaint and this company never tried to contact me by mail or phone before filing the lawsuit.

Attorney Answers 4

Posted

The statute of limitations is a complex rule of law, because it does not simply involve one statute, but several statutes, possibly several laws in a single case, depending on the claims in the complaint and other factors which can extend the limitations period. Factors such as where the defendant resided during some or all of the limitations period, what law was adopted at the time the contract was agreed, and when payments or agreements to make payments were last made. There may be other factors, as well.

In a consumer contract, such as a personal loan, a waiver of the statute of limitations would most likely be unenforceable, as it violates public policy that a promise should not last forever, if the promisor has not complied with their agreement for a long time, and no lawsuit was filed. There is a blog that I wrote explaining the "Don't Pay a Dime Strategy" (see link, below) which explains how some companies do not sue within the time period required, which could mean that the case should be dismissed, if the judge agrees with the legal analysis and the facts. I also have other blogs which discuss the SOL.

If this was a consumer loan on which a debt collection agency has sued, the agency and its lawyers may have violated the consumer's rights to not be sued if the statute of limitations has expired. This is under the federal Fair Debt Collection Practices Act (FDCPA) and if that is the case, then the plaintiff could be obligated to the consumer for actual damages, statutory damages, costs, and attorney's fees. You need to consult an attorney right away to protect against waiving the statute of limitations, by not properly presenting it in defense of the case.

Robert Stempler (please see DISCLAIMER below)
www.StopCollectionLawsuits.com
www.facebook.com/SoCalConsumerLawyer
Twitter: @RStempler

NOTICE: The above statements are provided for general information purposes only and are not intended as legal advice or advice of any sort for a specific case or legal matter. If you do not have a signed attorney-client fee agreement with the Consumer Law Office of Robert Stempler, APC ("the Firm"), then until such written fee agreement is provided and signed by both a prospective client and attorney for a particular case, neither Mr. Stempler nor the Firm will represent you nor will they be your attorney in any matter and you remain responsible for retaining your own attorney and for compliance with any and all deadlines and for any statutes of limitations that may pertain to potential claims. Comments made on a public forum, such as Avvo.com, to not have any confidentiality because others may read them. If you desire a private consultation with Mr. Stempler that is confidential, please go to www.StopCollectionLawsuits.com and submit a free eCase Review. The result portrayed for a client was dependent on the facts of that case. Results will differ if based on different facts. The Firm and Mr. Stempler are a debt relief agency. The Firm and Mr. Stempler help people file for bankruptcy relief under the Bankruptcy Code.

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Posted

Thank you. From what I understand tolling wouldn't apply because I never left the state or country, never asked for any type of extension, made any payment, promise to pay etc since 2005. I am attempting to consult with attorneys but I'm having a difficult time because most of the attorneys want upwards of $3000-5,000 to help me.

Posted

Yes, the statute of limitations can be waived, either by a written "tolling agreement" or by simply not raising the statute of limitations defense in response to the debt collection lawsuit.

You will probably have to file an Answer to the Complaint, raising the statute of limitations as a bar to recovery. In addition, you need to propound discovery including a Demand for Production of Documents asking for the waiver that you purportedly signed.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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Thank you. Would you please tell me what forms to use to file discovery? Also, if I file for dismissal with my answer would there still be a need for discovery?

Posted

Looks like you have already received two superb responses from my colleagues. Best of luck to you.

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Posted

After you file an Answer, you can propound discovery requests and see the documents that the plaintiff has which relate to this matter. You can also request documents relating to each and every change in the ownership of the account. I suggest that you defendant the lawsuit by hiring an attorney.

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