Statute of limitations
CLIENT says that he owed about $50,000 of credit cards, which he stopped paying in 2007. But last month, he received a copy of a judgment for $21,000 for one credit card. I looked at the judgment, and it says that the judgment was entered on July 12, 2013. He says that he was never served with summons and complaint, and did not receive any court documents except for the judgment. He also says that he is surprised that there is a judgment against him because the statute of limitations has lapsed. In addition, his employer informed him yesterday that it has received a wage garnishment order for that judgment. He also showed me two other judgments for $7,000 each, which do not have garnishments yet. He wonders why these three judgments have occurred when the statute of limitations on all three accounts have lapsed.
A discussion of the statute of limitations is in order. The California Code of Civil Procedure provides time limits on certain lawsuits. If you do not file the lawsuit within the time limit, you lose the right to file the case. For money had and received which is the cause of action where normally credit cards fall in, the time limit is four years from the last payment. Therefore, if client’s last payment on the credit card was July 1, 2007, the statute lapsed about July 1, 2011, more or less. If creditor filed the case before July 1, 2011, then client cannot raise the defense that creditor’s right to file the lawsuit has lapsed. But if the case was filed after July 1, 2011, then client has a defense that he can raise to prevent creditor from collecting the amount that he owes. This defense must be raised in the answer to the complaint. Client must file an answer within 30 days from being served with summons and complaint and therein state that the statute of limitations has lapsed. After the answer is filed, the case goes through the discovery phase or evidence gathering where both the creditor and client will attempt to obtain from each other evidence proving each other’s legal position. In this phase, client will look for documentary evidence that shows he made his last payment in 2007. Creditor, on the other hand, will look for documentary evidence that shows otherwise. Since the plaintiff has the burden of proof, creditor must have the ability to prove by a preponderance of evidence that the statute has not lapsed. If there is enough documentary evidence to prove client’s position, he can file a motion for summary judgment in his favor, stating the facts and the law and that there is no genuine dispute as to fact and law that he should win. Of course, client would need a lawyer to prove in court that the statute has lapsed.
If his motion for SJ is denied, then the case will proceed to trial where the parties can convince the court on their respective positions. If the court agrees with client at trial, then a judgment is issued in his favor saying that the debt is no longer collectible because the statute of limitations has lapsed. Even if the statute has lapsed, client still has to prove that fact in court to avoid liability on the debt.
Now that there are 3 judgments with one garnishment, the most economic way to get out of the garnishment and the judgments is to file a bankruptcy, either a Chapter 7 or 13. Both will stop the garnishment, and prevent the other two judgments from becoming garnishments. In this case, I suggested a Chapter 13 because client’s equity in his residence exceeded the exemption by a significant amount.
Legal challenges to contitutionality of Obama amnesty
Several states have filed cases in Federal Court to challenge the validity of President Obama’s executive order on immigration amnesty for illegal immigrants who are parents of children who are American citizens or permanent residents, or entered the United States before they turned 16, no matter how old they are now, provided they have a GED, or a US high school diploma. These are the general qualifications. In both situations, applicant must be living in the United States before January 1, 2010. Applications will be decided on a case-by-case basis. If your case is approved, you will receive a work permit that authorizes you to work for three years. Every renewal will be valid for three years. The USCIS has been directed to start accepting applications under this program by February 19, 2015, next month. So, if you think you have a chance of qualifying, go see a lawyer now.
In the meantime, the lawsuit filed by the Sheriff of Arizona; to challenge the validity of the President’s executive order was dismissed by Federal Court last week. The dismissal was not on the merits but on the ground that the sheriff of Arizona had no standing to sue the President of the United States on this issue. Suffice it to say that the dismissal adequately disposes of that legal challenge. But what about the other lawsuits filed by some states asking the court to declare the executive order on amnesty null and void on the ground that the President exceeded his authority with that executive order? Firstly, these lawsuits confirm that the executive order for amnesty as it now stands is the law of the land; otherwise why try to invalidate it. Secondly, there are many decided cases in the United States Supreme Court, throughout our entire history, that support the constitutionality of the President’s executive order. The chances of those lawsuits succeeding are pretty slim. So, take advantage of that amnesty now. You can already get a special driver’s license from the DMV now if you are illegal, starting January 1, 2015. The next thing you should do is get your work permit. It’s the right thing to do for yourself and your family.
God said, “let there be light,” and there was light… and god said, “let the water under the sky be gathered to one place, and let dry ground appear.” And it was so. – Genesis 1:3,9.
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Lawrence Bautista Yang specializes in bankruptcy, business, real estate and civil litigation and has successfully represented more than five thousand clients in California. Please call Angie, Barbara or Jess at (626) 284-1142 for an appointme nt at 1000 S Fremont Ave Mailstop 58 Bldg A-1 Suite 1125 Alhambra, CA 91803.