Can someone help me understand SOL and tolling on debts??

[specialksauce]

We live in SC and they allow tolling on statute of limitations on debts....

DOFD is 03/2009 (1st 30 day late). Date of CO is 08/2009. This is a HELOC used as a purchase money first but states its a line of credit on the credit report. I believe this is a written contract so SOL for SC is 10 years. However, he has been making $25 payments since 07/2007 every month, on the 2nd. Obviously isn't covering close to the full amount of interest so they are updating they are receiving $0 payment every month. He made arrangements with BofA in 07/2007 to start making good faith payments and they agreed to $25 each month. Never heard a word from them again. 

Question is.....does partial payments on this now CO restart or pause the SOL for BofA suing him? or since they made the arrangment two years before the CO, does the tolling not apply in this situation. We don't want to call and open up the can of worms for this account. The balance is $55k and no way in hell can we pay it or settle it. 

Home has been foreclosed on for 5 years now and the 1st mortgage has been satisfied in full. We still need to get the disbursement of funds from the court clerk to see where the additional money went to b/c the home sold for $30k more than the 1st loan was for. 

Here is what the SC law says.....

SECTION 15-3-120. Effect of new promises in writing or part payments. 

No acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take the case out of the operation of this chapter unless it be contained in some writing signed by the party to be charged thereby. But payment of any part of principal or interest is equivalent to a promise in writing. 

SECTION 15-3-130. Suits on causes saved from bar of statute by part payment or written acknowledgment. 

All actions upon causes of action which would be barred by the statute of limitations but for part payment or a written acknowledgment shall be brought on the original cause of action and the part payment or written acknowledgment shall be evidence to prevent the bar of the statute of limitations. 

All of this is so confusing! ugh. 

[guiness56]

SECTION 15-3-120. Effect of new promises in writing or part payments. 

No acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take the case out of the operation of this chapter unless it be contained in some writing signed by the party to be charged thereby. But payment of any part of principal or interest is equivalent to a promise in writing. 

This is saying that unless an acknowledgment or promise to pay is in writing it doesn't restart the SOL.  However, any part payments is the same thing as acknowledging or promising in writing.  So it does restart the SOL.

SECTION 15-3-130. Suits on causes saved from bar of statute by part payment or written acknowledgment. 

All actions upon causes of action which would be barred by the statute of limitations but for part payment or a written acknowledgment shall be brought on the original cause of action and the part payment or written acknowledgment shall be evidence to prevent the bar of the statute of limitations.

This one is basically saying the same thing.  Because part payments were made expired SOL cannot be used.

[specialksauce]

Ok so now that we know they can sue at any time...best to leave alone and keep paying? Or stop paying and see what happens? Or contact them and see what can be done?

He has his best friend, a lawyer, working on his federal tax lien. Better to have him call instead and negotiate with the lender?

Scared to wake the sleeping giant especially that he hasn't heard from them in 5 years.

[guiness56]

I would not take the chance of stopping payment.  That is a large sum to be sued over. 

Since I am not an attorney or anything in the legal field, I would contact a consumer attorney in your area and just ask general questions about that statute before making any decisions.

[specialksauce]

Ok thank you for the clarification!