help needed on a court question?

[waqaszm1]

this is for a friend of mine- just a little clarification needed from people who have been thru a sinilar situation:

state of alabama Statute of limitations on a credit card acct is 3 years. last payment made on the account was August 9, 2007. my friend got sued in court on august 16, 2010. Has the SOL passed on this account???

i am of the opinion that since he did not make any payments, or promises to pay between that time, and it is beyond three years, the SOL should have passed already so the collection agency was late by a week or so?

[Anonymous]

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@waqaszm1 wrote:

this is for a friend of mine- just a little clarification needed from people who have been thru a sinilar situation:

state of alabama Statute of limitations on a credit card acct is 3 years. last payment made on the account was August 9, 2007. my friend got sued in court on august 16, 2010. Has the SOL passed on this account???

i am of the opinion that since he did not make any payments, or promises to pay between that time, and it is beyond three years, the SOL should have passed already so the collection agency was late by a week or so?

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The statute of limitations stars from the time the cause of action accrued.  It's difficult to think of a scenario where the cause of actiom accrues at the time of the last payment made.  More likely the SOL starts running from the day after a missed payment was due.

Also, the SOL is largely irrelevant if you are sued, but fail to appear and they get a default judgment against you.

[RobertEG]

Our legal gurus will chime in, but in most states, SOL runs, at its earliest date, from what is referreed to as the occurance of an "initial cause of action."

In non-legalese, that means the date that "friend"  was  first was late in payment on the account, and never brought the account back into paid status.

Credit cards are normally, under state statues, considered as "open accounts."

My first blush review of Ala code is that open accounts have an SOL of 3 years from date of cause of action.  (A.C. 6-2-37)

I have not researched Ala code to the level that I could say that it does not provide for other resets of this short SOL based on other actions, such as payments, offers to pay. etc.

Not knowing either the date of intital "cause of action,"  or the Ala code for potential reset of the three-year SOL, what I will offer is that "friend" should not assume that expiration of the SOL makes the legal action moot.  Expiratiion of SOL is someth8ing that is a legal defense in court, and if proven, is an affirmative defense.

But appearance in court, with proof, is still mandatory for assertion of any SOL defense.