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Why would a lawyer serve a BS lawsuit that is clearly outside of the Statutes of limitations?

Melbourne, FL |
Filed under: Lawsuits and disputes

Just curious. A kind lawyer responded to my earlier question regarding a motion for dismissal. However, I am curious why a lawyer would serve a lawsuit that is clearly outside the Statutes of Limitations (SOL)?

This complaint is for Breach of Oral contract and in the complaint they state that the contract was entered into in 2004.

Florida statutes state 4 years SOL for Oral contracts.

My wife's uncle has loads of money and he is trying to screw with us saying that she owe him money and we never agreed to this ever.

All of a sudden out of the blue, he files a lawsuit saying my wife breached and oral contract to pay him money. Therefore, I'm just curious, do some lawyers do whatever their clients want them to do, even though its clearly pointless?

Attorney Answers 4

Posted

There are sanctions available to a defendant if a plaintiff files a frivolous lawsuit. Those sanctions can also require the attorney to pay. Perhaps there is something in the fact pattern that tolled the statute of limitations, which would give the plaintiff extra time to file and make it not clearly pointless.

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ******

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2 comments

Asker

Posted

Well there are about 20 items under the "General Allegations" section and the first one clearly states 4. "In 2004 Plaintiff and defendant entered into an oral agreement whereby Plaintiff agreed to a loan of $XXX to Defendant...." She claims that she never made such an agreement, which at this point would all be hearsay. Either way, nothing was ever mentioned until now today when she received the summons which would be 8 years after the “so called” oral contract. The other items are just bs transactions of money between her mom and her uncle which he has no proof were anything. Are there lawyers that will look over the document for a small fee? I don’t want to spend a bunch of money on something that turns out to be frivolous. If it is frivolous, does he have to pay our court fees and attorney fees?

Heather Morcroft

Heather Morcroft

Posted

The process for claiming fees for a frivolous lawsuit is very specific, and you would need a lawyer to talk to his lawyer about this. Unless the guy is really stupid, he has reason to believe that the statute was tolled, or some other statute applies for some reason, and until you know that you can't assume.  And if it is frivolous, you have to follow the procedure in Fl.. Stat 57.105 to get back fees, you really need a lawyer for that. The preceding email message may be confidential or protected by the attorney-client privilege. It is not intended for transmission to, or receipt by, any unauthorized persons.  If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message.  Legal advice contained in the preceding message is solely for the benefit of the client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party.        Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.

Posted

I agree with my colleague. A lawyer should not file a lawsuit that he/she knows is clearly beyond the Statute of Limitations. You can file a motion for sanctions for a frivolous lawsuit under Section 57.105 of the Florida Statutes. However, if the lawyer is able to argue that the Statute of Limitations was either tolled or that the case falls under some exception to the rule, the lawsuit is not frivolous and sanctions will not be awarded. Very rarely is anything crystal clear in the law. That being said, the Statute of Limitations has few exceptions, so I would consult with an attorney and do your research because you may be able to recover your attorneys' fees if you prevail on a motion for sanctions. Good luck.

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Posted

Some lawyers will do whatever their clients ask them to do so long as it is not unethical. You need to keep in mind that a Statute of Limitations is an affirmative defense, and if a defendant does not raise the defense, it is waived. Additionally, if the Defendant does not answer at all and defaults the defense is waived.

If you'd like to discuss, please feel free to call. Jeff Gold Gold, Benes, LLP 1854 Bellmore Ave Bellmore, NY 11710 Telephone -516.512.6333 Email - Jgold@goldbenes.com

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5 comments

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

I strongly disagree with those attorneys who assert that the filing of a potentially time-barred action is a)either frivolous or b) sanctionable.

Asker

Posted

Jeffrey, thank you for your response. Yeah I assumed that since he is a doctor and has a ton of money, he is just trying to cause us problems and now we have to get a lawyer (spend money) to resolve this. He has brought to the table a bunch of random evidence that has nothing to do with his allegations and honestly after reading the summons many times there really is no case. However, since I’m no lawyer we are going for a consultation at a minimum just to see if it’s as simple as submitting the motion for dismissal or if there could be more meat to this. In the end if it’s not an outrageous fee, I'd probably let the law office just do the motion and move on with life.

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

DO NOT PUT IN AN ANSWER UNLESS YOU RAISE THE STATUTE OF LIMITATIONS AS A DEFENSE. NEVER ACKNOWLEDGE THE EXISTENCE OF THE DEBT. Good Luck.

Asker

Posted

Well that is what I'm going to ask the lawyer. My concern was, at least the way I was reading it, is by raising statute of limitations, I am now also acknowledging that the allegations are true. The problem is the allegations are lies.

Jeffrey Bruce Gold

Jeffrey Bruce Gold

Posted

You are permitted to plead in the alternative, so that you don't contradict your other allegations but that's not for a messageboard.

Posted

Consult with an attorney. Do not underestimate a lawsuit. It may appear to be BS, but it could also land you into a load of debt. Don't try to handle this without an attorney. Good luck!

To schedule a consultation, call my office at 407-965-5519. I am licensed to practice in Florida only. My answer does not create an attorney-client relationship, nor does it constitute legal advice. Proper legal advice can only be given after learning all circumstances and conducting a comprehensive examination, including being able to ask questions, and cannot be given just from reading one question on an Q&A board such as this.

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