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In Chapter 260 of the Statute of Limitations, under Section 6 it states: "In an action of contract brought to recover the balance due upon a mutual and open account current, the cause of action shall be held to have accrued at the time of the last item proved in the account." Can you explain what "the time of the last item proved in the account" means? And specifically what the term "item" means in this context? My former business partner accepted an offer from me to reduce his debt to me, based on a percent of future sales, in exchange for relinquishing his 50% control of the business to me. While his debt was reduced during this six-year "buyout" period, it was not eliminated. While it has been more than six years since that "buyout" period ended, within the last six years we did exchange emails that suggested he could continue to try and generate sales as a way to further reduce that remaining debt. Might those email exchanges constitute an "item proved in the account"?
Optional Information: Country relating to Question: United States State (if USA): Massachusetts Already Tried: Contacting the defendant directly; having an attorney write a demand letter. Now we have a pending court date and I am concerned that it might be viewed that the six-year Statute of Limitations has expired.
Thank you for your question. I will do my best to assist you with your concerns. If you would like me to clarify my answer, I will be happy to do so. To explain directly, "the time of the last item proved in the account" is legalese for the last time there was any activity in the account. For example, let's state an account was set up in 1995, and a person was making payments, charging, or otherwise being active in the account until March 2007. The Statute of Limitations would kick in from the date of inactivity, or March 2007, and not the date the account was set up. An 'item' is any charge or any transaction on the account.The emails you are discussing are likely not an 'item' because the account itself was not touched, modified, or paid under. The best argument here may be if in those emails he formally 'assumed' the debt, meaning that in an email within the past 6 years he formally admitted that the debt is his and formally made a promise to pay the debt. Then from that date on you can argue in court that the debt may have been assumed and the statute of limitations re-started. Beyond that, discussing a debt but not paying it is not deemed an 'item' because it does not change the debt directly.Good luck.
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Dimitry,You explained what an "item" is in this context. You also indicated if any email exchanges suggested that his debt was not satisfied then the statute could be restarted. In March 2011 I sent Matt an email saying that the matter wasn't closed, that my records indicated he still owed me money. I invited him to see if he had any further records that would adjust the numbers (i.e., reduce his debt). After telling me he wouldn't be able to search for anything till the summer, I told him I wasn't satisfied with that response. On April 21, after meeting with a CPA/attorney, I got this response:
Thank you for your follow-up, Carey.I am afraid I do not see my answer changing. Nowhere in that email did the other person admit to the debt as his, and, more importantly, promise to pay it. That promise would restart the statute of limitations, not a simple discussion, I am afraid. Discussing a tax reconciliation is not the same as promising to make the debt payments.Good luck.Dimitry Esquire41093.6552107292
Given my horrendous financial situation, $59, sadly, is a huge amount of money for me. That said, let me interject one more point from that email exchange and see if it changes anything. The following is what I wrote to Matt that prompted his response that he would see what other records he had. You're right, Dimitry, Matt hasn't admitted that he owes me money, but he certainly didn't challenge or refute my assertion that he owes me $5,400. As I said in my letter, I have no ill will towards you Matt. But it's time to settle up with the agreement. Accepting the six 1099 forms indicates ratification of that agreement on your part. That agreement, again, said that any imbalance of money invested into the business by the two of us would be reconciled in the following manner: a.) first, by reducing your debt to me over a period of six years--by forfeited to me commission on sales that were reported on the six 1099 forms, and then b.) after those six years expired, whatever outstanding balance remained would be paid so that a zero balance was achieved. As the spreadsheet shows, after factoring in the six 1099 Misc. Income forms totaling $7,196.55, there is still an outstanding balance of $5,442.76 before everything zeros out.
Thank you for your follow-up, Carey.His challenge or refutation of your statements is not required. He has to make the statement on his own. If you email me a letter claiming that I owe you $100,000 as an example, and I do not respond or do not directly comment on that point, it does not make the statement that you made valid or somehow makes me assume that debt. You can use it in court and try to claim he assumed the debt but I doubt very much a judge is going to agree.I am sorry for the unwelcome news, truly, but as a professional I owe you a duty to tell you the correct answer as I see it, because that hopefully helps more than giving you an answer you hope to hear but isn't correct.Good luck.Dimitry Esquire41093.6712697106
Thank you for this comment you made: "I am sorry for the unwelcome news, truly, but as a professional I owe you a duty to tell you the correct answer as I see it, because that hopefully helps more than giving you an answer you hope to hear but isn't correct." I appreciate that. Nonetheless, I will show up in court a week from tomorrow and try to overcome that potential challenge. Knowing that the court of law is typically black and white (no gray areas) I wonder if this verbal statement that Matt made to me on the phone, before I had reconciled everything, holds any water. Before crunching all the numbers and reconciling everything, I thought his debt to me was closer to $15,000, and I told him so. He responded "If I thought I owed you $15,000, I would write you a check tomorrow." Now I know that is not a direct admission that he owed me that amount, or any other amount, for that matter. But might it possibly be interpreted as a suggestion on his part that money was due to me?
Thank you for your follow-up, Carey.You are discussing a statement that he made to you on the phone, which you have no proof of. Therefore I do not see it as valid. Plus, it is still not an admission, it is a statement that points to a condition, but does not expressly state that he admits to the debt.Sorry again, I do not see it as valid.Good luck and take care.Dimitry Esquire41093.7152462153
Experience: JA Mentor, Licensed in PA & NJ, specialize in business/contract disputes, estate creation & admin
Hi Dimitry,Going back to my SOL questions last week, I'm looking at this from aslightly different angle: Equitable tolling with regard to extending thestatute of limitations. While doing some research I came across thefollowing:"For example, when pursuing one of several legal remedies, the statute oflimitations on the remedies not being pursued will be equitably tolled ifthe plaintiff can show:- Timely notice to the adverse party is given within applicable statute oflimitations of filing first claim. COULD YOU EXPLAIN THIS POINT?- Lack of prejudice to the defendant. AFTER ACCEPTING MY "PROPOSAL", WEHAD DISCUSSIONS OF HIS CONTINUING IN THE BUSINESS IN SOME CAPACITY, I TOOKHIM TO A BRUCE SPRINGSTEEN CONCERT, AND WAS EVEN THE BEST MAN IN HISWEDDING. THERE WAS CERTAINLY NO PREJUDICE AGAINST HIM. TO FURTHER THISARGUMENT THAT NO PREJUDICE WAS FELT TOWARD THE DEFENDANT, MY RELUCTANTANCETO PURSUE THIS MATTER LED TO AN INVOLUNTARY DELAY IN RECONCILING THE BOOKS. Reasonable good faith conduct on part of the plaintiff. NUMEROUS EMAILSWERE SENT TO HIM WITH REGARD TO MY PROGRESS ON RECONCILING THE BOOKS. IEVEN ENTERTAINED THE IDEA OF AN INSTALLMENT PLAN TO MAKE IT EASIER FOR HIMTO PAY ME. Thank you,Carey
Thank you for your follow-up, Carey. I will try to respond further.- Timely notice to the adverse party is given within applicable statute oflimitations of filing first claim. COULD YOU EXPLAIN THIS POINT?That means that the initial petition to file still took place prior to the statutory limitation running out. Once a person files, the statute is tolled (it stops), until the case is heard, pursued, or dismissed.- Lack of prejudice to the defendant. AFTER ACCEPTING MY "PROPOSAL", WEHAD DISCUSSIONS OF HIS CONTINUING IN THE BUSINESS IN SOME CAPACITY, I TOOKHIM TO A BRUCE SPRINGSTEEN CONCERT, AND WAS EVEN THE BEST MAN IN HISWEDDING. THERE WAS CERTAINLY NO PREJUDICE AGAINST HIM. TO FURTHER THISARGUMENT THAT NO PREJUDICE WAS FELT TOWARD THE DEFENDANT, MY RELUCTANTANCETO PURSUE THIS MATTER LED TO AN INVOLUNTARY DELAY IN RECONCILING THE BOOKS. That is not what 'lack of prejudice' means in this case. Lack of prejudice means that if the suit was dismissed already by the courts, the judge could have dismissed it either "with prejudice" or "without prejudice". If a suit is dismissed with prejudice, you would be barred from bringing suit again on the same grounds, but if it was dismissed without prejudice, you can still refile within a short period of time.Reasonable good faith conduct on part of the plaintiff. NUMEROUS EMAILSWERE SENT TO HIM WITH REGARD TO MY PROGRESS ON RECONCILING THE BOOKS. IEVEN ENTERTAINED THE IDEA OF AN INSTALLMENT PLAN TO MAKE IT EASIER FOR HIMTO PAY ME. That is still not enough to refile, you had to show that you attempted to file within the statutory period of time. A negotiation to pay is not enough.Good luck.Dimitry Esquire41099.8604156597
Thank you again, Dimitry. Your "capital" has increased. One last point of clarification and I should be done
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Hi Dimitry, You stated: "That means that the initial petition to file still took place prior to the statutory limitation running out. Once a person files, the statute is tolled (it stops), until the case is heard, pursued, or dismissed." By "initial petition to file" do you mean file a petition for a court date or file a petition in court to have the SOL tolled? Probably the latter; in which case I am looking to determine exactly when that six-year period commenced--the day he received the final 1099MISC form from me, or a short time later when I gave him the final adjusted debt total AFTER reducing that outstanding debt vis-a-vis' the 1099 forms per our agreement?
Relist: Other.After having discussions with Dimitry Esquire, it's been many hours since since I sent a follow up, and have a court date tomorrow. Our discussion had to do with tolling the Statute of Limitations:I asked Dimitry: "Going back to my SOL questions last week, I'm looking at this from a slightly different angle: Equitable tolling with regard to extending the statute of limitations. While doing some research I came across the following:"For example, when pursuing one of several legal remedies, the statute of limitations on the remedies not being pursued will be equitably tolled if the plaintiff can show:- Timely notice to the adverse party is given within applicable statute of limitations of filing first claim. COULD YOU EXPLAIN THIS POINT?"Dimitry replied: "That means that the initial petition to file still took place prior to the statutory limitation running out. Once a person files, the statute is tolled (it stops), until the case is heard, pursued, or dismissed."My follow up question to Dimitry that I was waiting to get a reply to was: By "initial petition to file" do you mean file a petition for a court date or file a petition in court to have the SOL tolled? Probably the latter; in which case I am looking to determine exactly when that six-year period commenced--the day he received the sixth and final 1099MISC form from me, per our Agreement, or a short time later when I gave him the final adjusted debt total AFTER reducing that outstanding debt vis-a-vis' the 1099 forms?
Hi, Carey,
My name is XXXXXX XXX I am another member in the Legal Category. I just wanted to let you know that the expert who assisted you is not online right now,
"Initial Petition to file.........." means filing a Petition which commences the action, not a Petition to toll the Statute of Limitations because there is no Petition to request a tolling of the Statute of Limitations. A Judge cannot toll the Statute of Limitations by Petition or otherwise. The only times there is a tolling of the Statute of Limitations are legal incapacity (party is under the age of 18), or Fraud (Plaintiff did not discover a fact, despite reasonable and diligent investigation). Please direct your repies to your expert and he will be gald to explain further when he is back online. ANDREA
Hi Andrea,Thank you for your reply. Do you know when Dimitry will be back online?Carey
Hi, Carey, I do not know what his schedule is, but he is usually online in the evening, so he should be online shortly, ANDREA
Thank you for your follow-up and my apologies on the delay. I was on a short vacation and had no access to my laptop. Do you still wish for me to respond to your concerns? Again, my apologies.