Legal Question in Credit and Debt Law in California
after I filed the answer for the summons and sent pleadings and affirmative actions. I found that the contract may have reached the statute of limitations before the demand was made in court. My last payment according with the summons was made on October 13,2008. the case was file in court on December 10, 2012. Civil code indicates if a written contract exist the statute of limitations is 4 years. In this case the statute of limitations was due by October 14, 2012. Is this correct? if yes how do I file a new document to request to dismiss the case base on statute of limitations.
2 Answers from Attorneys
The statute of limitations is an affirmative defense that must be proven. It is usually raised by affirmative defense in the answer. The issue is decided either on a motion for judgment on the pleadings, a motion for summary judgment, or at trial. Neither of the motions are forms, however. They must be drafted by hand, and the plaintiff will have a chance to explain why the statute of limitations does not bar their claims in your case.
If the defense is clear, it may be possible to raise the matter with plaintiff's counsel and convince him or her to dismiss the case.
Mr Perry is correct. A letter to the plaintiffs attorney might get him to dismiss the case. I would suggest doing proper discovery to get the dates nailed down. If you are seeking legal representation in this matter feel free to call my office. 818 345-0123. We offer a no cost consultation and if this is a credit card debt or an account stated debt we may be able to offer you a low cost rate to handle this matter.
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