How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Dimitry K., Esq. Your Own Question

Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 37479
Experience:  Run my own successful business/contract law practice.
18572087
Type Your Business Law Question Here...
Dimitry K., Esq. is online now
A new question is answered every 9 seconds

I have a commercial lease in which tehre is a clause that states

Resolved Question:

I have a commercial lease in which tehre is a clause that states that I am waiving my rights under UCC 2A500-        . The issue at hand has to do with statute of limitations, whihc according to 2A-506 is 4 years from the time of breach.

My question is whether the law allows one to waive this right or whether it protects the lessee regardless of this clause, i.e. is the provision that grands a statute of limitation going to be upheld by the court.
Submitted: 4 years ago.
Category: Business Law
Expert:  Dimitry K., Esq. replied 4 years ago.
Typically you cannot waive your rights under Statute of Limitations requirements, since it would be considered unconscionable and an unfair restraint on the freedom to contract. A party to a contract cannot "waive" his rights to breach; at best the contracting party may waive certain conditions, but cannot insulate themselves in such a manner as to not provide the other party access to any legal recourse (full waiver is usually unconscionable, but a choice of law forum or arbitration clauses are valid because while they limit the right to bring suit, they do not take it away).

Sincerely,

Dimitry Alexander Kaplun, Esq.
Customer: replied 4 years ago.

So, as I understand it, we should be able to respond to what the plaintiff has now filed "motion for summary judgement" by counter-motion to have the case dismissed based on the statute of limitations? If so, this looks like a very straight forward issue. The current attorney (we are interviewing substitutes) wants to charge for 15 hours of time, including "legal research" to defend the case. It seems like this is an open and shut case, because of the statute of limitations, and wondering in fact if I am entitled to damages as the plantiff knew or should have known that this case was therefore frivilous.

 

Expert:  Dimitry K., Esq. replied 4 years ago.
No, this is not a "per se" frivolous case because your attorney does have to review a couple of fine points for you.

For example:

1. If you were compensated in any way by signing the waiver--if you were, the other side can argue that you make a contractual exchange akin a settlement. In essence, the other party can argue that you sold your your rights away for valid compensation. Your attorney would have to review if such a transfer is possible and see case law to such effect.

2. If other avenues existed to you for bringing this case to court, such as arbitration or mediation clauses.


I am not sure if that involves 15 hours of billable time, but it can involve some checking for the attorney.

Be aware, however, your attorney may only charge you for research if the research that he or she is doing for you is highly specialized--otherwise the attorney is precluded from charging you for research for things that he should already know.


Sincerely,

Dimitry Alexander Kaplun, Esq.


___________________________________________________________________
Please click "accept" so I can be compensated for my assistance. Thank you!
Customer: replied 4 years ago.

Welll, while I was waiting for your answer, I reviewed the lease. It turns out that I had signed two leases with same leasing company (Citicorp) one of which is not in contention, and the one NOT in contention is the one with that clause.

 

So now it is a little more straightforward, since the lease in contention does not have the waiver clause at all. So, as I understand it, this is now a relatively straightforward case. To address the issue of legal research then specifically ,would you not expect a lawyer who claims expertise in business law and civil litigation would be familiar with UCC statues about leases and statues of limitations? If this is the case, shoudl there be "legal research' and is there any thing else the attorney needs to do except to address the court seeking relief on basis of that statute of limitations?

 

Inotherwords, can I reasonably expect that the case will be dismissed and if so, can I expec the judge to award me damages. There is no arbitration or mediation clause in the lease.

Expert:  Dimitry K., Esq. replied 4 years ago.
Personally, any attorney who practices state law should know the statute of limitations for basic things like contracts and breaches, and should not charge fees for their research. UCC statutes for a business law attorney should also be mostly second nature, and only obscure items should be research--basic lease information usually does not suffice.

I suggest you speak with your attorney and possibly contest such a fee.

Kindly compensate me for my assistance.

Sincerely,

Dimitry Alexander Kaplun, Esq.
Customer: replied 4 years ago.
Thanks. Can u answer the question in second paragraph please? That should do it for tonight. Will be pleased to compensate for your time
Expert:  Dimitry K., Esq. replied 4 years ago.
I am sorry, I am not sure of other factors of the case, and what exactly you are bringing suit for, so I cannot in good conscience respond as to what else your attorney should address without first reviewing your file.

For a summary judgment, however, he should simply address the fact that you, as plaintiff, have a valid claim due to statute of limitations, and that there are real contestable issues of fact that require judicial resolution.

Sincerely,

Dimitry Alexander Kaplun, Esq.
Customer: replied 4 years ago.
I am the defendant.!   The leasing company claims I did not make all payments but by their own claim the alleged default occurred outside stat of limitations. Does this vhange your view?
Expert:  Dimitry K., Esq. replied 4 years ago.
No the view does not change, but the response does. Then your attorney should argue that by virtue of not acting upon the default during the statutory limit, the company has lost their ability to demand recourse. Just be aware that the opposing side will try to argue that you 'assumed' the default by outside actions (hard to prove but that will most likely be their secondary argument).

Sincerely,

Dimitry Alexander Kaplun, Esq.
Customer: replied 4 years ago.
What does it mean that I assumed. Etc.    Does not the statute of limitations mean they have to bring suit within the limit time? You seem kniwledgeable about this. Do you practice in my state. If not can you recommend an attny I can engage for this?
Expert:  Dimitry K., Esq. replied 4 years ago.
I do not practice in New York, unfortunately--I do have contacts there who specialize in business law, but as per justanswer.com guidelines we as Experts are not allowed to give specific referrals or solicit work through the site.

As for "assumption"...technically each time a transaction takes place, the statute of limitations (SOL) can "reset" from that starting point under certain conditions. One of those conditions is an admission of default. For example, let's assume you breached in 2002, and then in 2007 the company approached you about the breach. Upon their request you admitted that the breach occurred, stated that in essence "yes, I know I broke the breach, and I owe you money, and I will pay you back", then from that point on the statute of limitations has reset. That is what the other company is going to try to find--some instance where some admission or ownership may have taken place that would move the SOL further.

Kindly compensate me for my assistance. I believe I have answered all of your questions in great detail, but I will have to opt out if I am not compensated at this point.

Sincerely,

Dimitry Alexander Kaplun, Esq.
Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 37479
Experience: Run my own successful business/contract law practice.
Dimitry K., Esq. and other Business Law Specialists are ready to help you
Customer: replied 4 years ago.
thank you and good night
Expert:  Dimitry K., Esq. replied 4 years ago.
Good night and good luck to you!

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Law Pro

    Attorney

    Satisfied Customers:

    1426
    20 years experience in business law - sole proprietor, partnership, and corporations
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/lawpro/2012-6-25_171315_PT206740s.64x64.jpg Law Pro's Avatar

    Law Pro

    Attorney

    Satisfied Customers:

    1426
    20 years experience in business law - sole proprietor, partnership, and corporations
  • http://ww2.justanswer.com/uploads/DC/DCraneEsq/2012-8-14_14436_DCrane.64x64.jpg MShore Law's Avatar

    MShore Law

    Attorney

    Satisfied Customers:

    1233
    Drafted Negotiated and/or Reviewed Thousands of Commercial Agreements
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    1162
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    1142
    Run my own successful business/contract law practice.
  • http://ww2.justanswer.com/uploads/ohioatty/2009-1-22_185545_me.jpg J.Hazelbaker's Avatar

    J.Hazelbaker

    Attorney

    Satisfied Customers:

    393
    Experienced and trained in the area of business law.
  • http://ww2.justanswer.com/uploads/scottymacesq/2009-6-10_221523_small.jpg RGMacEsq's Avatar

    RGMacEsq

    Attorney

    Satisfied Customers:

    393
    Licensed Texas General Practice Attorney
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Attorney

    Satisfied Customers:

    301
    13 years practicing attorney, MBA
 
 
 

Related Business Law Questions