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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Bankruptcy Law
Satisfied Customers: 12931
Experience:  B.A.; M.B.A.; J.D.
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I am still in the process of filing a Small Claims action,

Resolved Question:

I am still in the process of filing a Small Claims action, but need to know the time line for the statue of limitations. The claim will be for illegally charged fees for modification in November 2009. It has taken me this long to make the decision to file, as they were recomended to me by a friend of a friend. I had offered the company the chance to pay me back on increments, but the corporations owner has made many excuses. They were not able to get the modification for me, but the main reason for pursuing the claim is the illegally charged fee. At first he told me that I had signed a contract, which I had not, and he was not able to find the so called contract. I have saved all the email contacts from start to the last time we conversed. I thought I had heard that time frame for filing was three years, but I do not have much time if it is two years. I would appreciate your response. Sincere regards, XXXXX
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  Phillips Esq. replied 2 years ago.
Thank you for giving me the opportunity to assist you. I encourage you to ask me for clarification, if you are not clear with my Answer.


Question: I am still in the process of filing a Small Claims action, but need to know the time line for the statue of limitations. The claim will be for illegally charged fees for modification in November 2009. It has taken me this long to make the decision to file, as they were recomended to me by a friend of a friend. I had offered the company the chance to pay me back on increments, but the corporations owner has made many excuses. They were not able to get the modification for me, but the main reason for pursuing the claim is the illegally charged fee. At first he told me that I had signed a contract, which I had not, and he was not able to find the so called contract. I have saved all the email contacts from start to the last time we conversed. I thought I had heard that time frame for filing was three years, but I do not have much time if it is two years. I would appreciate your response. Sincere regards, XXXXX XXXXX

Response:
If you have a contract, the Statute of Limitations is 4 years. If you do not have a contract, the Statute of Limitations is 2 years. See California Code of Civil Procedure Sections 337 and 339:

http://www.leginfo.
ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=335-349.4

337. Within four years: 1. An action upon any contract, obligation

or liability founded upon an instrument in writing, except as

provided in Section 336a of this code; provided, that the time within

which any action for a money judgment for the balance due upon an

obligation for the payment of which a deed of trust or mortgage with

power of sale upon real property or any interest therein was given as

security, following the exercise of the power of sale in such deed

of trust or mortgage, may be brought shall not extend beyond three

months after the time of sale under such deed of trust or mortgage.

2. An action to recover (1) upon a book account whether consisting

of one or more entries; (2) upon an account stated based upon an

account in writing, but the acknowledgment of the account stated need

not be in writing; (3) a balance due upon a mutual, open and current

account, the items of which are in writing; provided, however, that

where an account stated is based upon an account of one item, the

time shall begin to run from the date of said item, and where an

account stated is based upon an account of more than one item, the

time shall begin to run from the date of the last item.

3. An action based upon the rescission of a contract in writing.

The time begins to run from the date upon which the facts that

entitle the aggrieved party to rescind occurred. Where the ground for

rescission is fraud or mistake, the time does not begin to run until

the discovery by the aggrieved party of the facts constituting the

fraud or mistake. Where the ground for rescission is

misrepresentation under Section 359 of the Insurance Code, the time

does not begin to run until the representation becomes false.



339. Within two years: 1. An action upon a contract, obligation or

liability not founded upon an instrument of writing, except as

provided in Section 2725 of the Commercial Code or subdivision 2 of

Section 337 of this code; or an action founded upon a contract,

obligation or liability, evidenced by a certificate, or abstract or

guaranty of title of real property, or by a policy of title

insurance; provided, that the cause of action upon a contract,

obligation or liability evidenced by a certificate, or abstract or

guaranty of title of real property or policy of title insurance shall

not be deemed to have accrued until the discovery of the loss or

damage suffered by the aggrieved party thereunder.

2. An action against a sheriff or coroner upon a liability

incurred by the doing of an act in an official capacity and in virtue

of office, or by the omission of an official duty including the

nonpayment of money collected in the enforcement of a judgment.

3. An action based upon the rescission of a contract not in

writing. The time begins to run from the date upon which the facts

that entitle the aggrieved party to rescind occurred. Where the

ground for rescission is fraud or mistake, the time does not begin to

run until the discovery by the aggrieved party of the facts

constituting the fraud or mistake.

Customer: replied 2 years ago.
Indeed it was a very complicated answer, however, it did answer my question about the time element of two years, which will be up on November 17th when I wrote the check, and no contract was given to me. Hopefully, because I have given them time to repay me and they haven't, they are not going to come up with a forged contract. I do have all the email conversations, including the ones that he stated he cannot find the contract, and he wants to pay me, but business is bad, and is not able to pay me.
With the time left to start the process, do you feel there is time with the courts or are they so backlogged, my court date will not be in time? Also, the Senate bill making upfront fees ilegal, which was passed in October 2009, or possibly earlier.....doe's it
qualify for me to file this in Small Claims? Thank you again....Lois K.
Expert:  Phillips Esq. replied 2 years ago.

Indeed it was a very complicated answer, however, it did answer my question about the time element of two years, which will be up on November 17th when I wrote the check, and no contract was given to me. Hopefully, because I have given them time to repay me and they haven't, they are not going to come up with a forged contract. I do have all the email conversations, including the ones that he stated he cannot find the contract, and he wants to pay me, but business is bad, and is not able to pay me.

Response 1: They should not have spent the money that they have not earned in the first place. So, that is a very lousy excuse. The money should have been put in an escrow account until they have actually done the work for you and thus earned the fee.


With the time left to start the process, do you feel there is time with the courts or are they so backlogged, my court date will not be in time?


Response 2: What counts is when you filed the case and not when the Court hears it. So long as you file the case within the limitation period, you would not be barred from doing so because the Statute of Limitations has run out during the pendency of your case. Also, if they came up with a contract, the Statute of Limitations would not run out in November, it would run out 2 years later.

Also, the Senate bill making upfront fees ilegal, which was passed in October 2009, or possibly earlier.....doe's it
qualify for me to file this in Small Claims?


Response 3: Yes. Even without it, upfront fees would be illegal if the work was not performed. The botXXXXX XXXXXne is that they cannot keep the fees if they did not do the work.

Phillips Esq., Attorney-at-Law
Category: Bankruptcy Law
Satisfied Customers: 12931
Experience: B.A.; M.B.A.; J.D.
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