SOL rulings--
Well, it sounds like maybe we should get the "mods" to start a pinned thread on this.
I think that once anyone gets "backed up" (as in case ruling) information regarding each states procedure on this we should post under the thread for those interested.
For instance, I have been reading a Missouri Court of Appeals case dated 04/27/2007, where the appeals court affirms a trial courts ruling, finding for Cardholder/Defendant that Capital One/Plaintiff's claim is barred by the five-year statute.
Cardholder cited SOL (section 516.120, the five-year statute of limitations) as an affirmative defense. She contended that Capital One's claim was subject to section 516.120, the five-year statute of limitations; that the statute barred Capital One's breach of contract claim.
A finding that the statute of limitations barred plaintiff's claim is in accordance with the result the trial court reached.
Capital One then appeals whereby they contend that the trial courts finding on the statute of limitations is error "because section 516.110, which establishes a ten-year limitation period, applies to a claim based on a written contract, or because even if section 516.120, which establishes a five-year limitation period, applies, a breach-of-contract claim does not accrue until a breach occurs, in that [defendant] breached her agreement, whether written or oral, by failing to make a payment due January 22, 2000, and [plaintiff] filed its action on January 3, 2005."
HOWEVER, Missouri Court of Appeals disagrees with Capital One and affirms trial courts ruling that Capital One's credit card agreement falls under the five year statute as Capital One/plaintiff did not produce a written promise by Cardholder/defendant to pay money.(FN2) therefore (Section 516.110), the ten-year statute, is not applicable.
FN2. The only written documents Capital One/plaintiff placed in evidence were writings it claimed were terms imposed as "customer agreements" for issuance of credit cards. These included documents dated 2001, 2002, and 2005, as well as others that were undated. Capital One/Plaintiff produced no agreement that was signed by defendant. "'Parol acceptance of an offer in writing does not give rise to an agreement or contract in writing, within the meaning of statutes relating to limitations governing actions on contracts in writing.'" Lively v. Tabor, 341 Mo. 352, 107 S.W.2d 62, 67 (1937), quoting 37 C.J. 758, section 86.
For the record on Appeal: January 26, 1998 $3,379.75 -- Balance on Account
Amounts paid on account:
April 20, 1998 50.00
June 29, 1998 125.00
August 21, 1998 361.97
November 9, 1998 125.00
November 21, 1998 125.00
December 19, 1998 200.00
February 22, 1999 150.00
August 30, 1999 210.00
October 2, 1999 210.00
December 2, 1999 150.00 -- Last Amount Paid
The December 2, 1999, payment was the last amount paid on the account. This action was filed January 3, 2005. Cap1 sent cardholder's account "to collections" on October 24, 1998, and on March 25, 1999.
Payment plans were arranged but not met.
The last payment plan required defendant to pay $210 on August 30, 1999, on September 30, 1999, and on October 30, 1999. The first payment was made via telephone on August 30. The September 30 payment was not timely made (a payment of $210 was made October 2, 1999). The payment owed October 30 was not paid but $150 was paid December 2, 1999.
The finding by Missouri Court of Appeals is that the payment plan was breached no later than when Cardholder failed to pay the $210 payment that was due October 30, 1999. Thus, there was evidence that Capital One's claim for breach of contract accrued, at the very latest, October 30, 1999. Arguably Cardholder/defendant's December 2, 1999, $150 partial payment tolled and extended the statute of limitations five years from that date. In any case, Capital One/Plaintiff's petition was not filed until January 3, 2005, more than five years after either date.
"Therefore, Capital One's claim is barred by section 516.120."
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I think this info should help some of us faced with a summons on any lawsuit/claim that may be close to the SOL.
