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Ely
Ely, Counselor at Law
Category: Legal
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I live in Florida. I have a collection agency that has filed

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I live in Florida. I have a collection agency that has filed a civil suit to get a judgement against me. They sent me a cc statement (which I never received) with a date of 06/15/2009 and the suit filed date was 06/12/2013. I am trying to determine my last activity to verify the date when the statute of limitations is up. The last activity on my account, a charge, occurred in 11/2008. The last payment on that account was also made in 11/2008. The last time a late payment fee was charged was during 03/2008. The last time an over limit charge occurred was during 04/2008. No other activity, aside from finance charges (which it appears was charged the last time on the 06/15/2009 statement), occurred since 11/2008. Which date is the proper one to use when calculating the date of last activity? Thank you very much.
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

Which date is the proper one to use when calculating the date of last activity?

Actually, there is a lot of confusion when it comes to when the statute of limitations begin running. Allow me to clarify first of all by stating that the statute of limitations begins to "tick" not at date of last activity, but at the date when payment became due.

In other words, if you had to make payment per contract on - say - 03/2008, and did not, then the statute of limitations began on that date.

Simply by them adding on surcharges and/or interest does not toll the statute until they did so, and for good reason, as this may have them continuously "act" on your account to artificially elongate the statute of limitations.

As such, it began when you missed your first payment and never paid since.

As such, it was 03/2008.

The statute of limitations on a contract in Florida is five years (from date of a payment missed), per §95.11.

I hope this helps and clarifies. Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

Hello Ely. Thank you for the quick response!! I accidentally gave you incorrect information. The actual last payment they received from me was 11/2008. The other dates I mentioned, 03/2008 & 04/2008 were actually 03 & 04/2009, however these were statements I received that showed late payment and overcharge fees. Again the last payment made was 11/2008 and the last charges were in 11/2008. Would this be the accurate date of last activity?


Also, I have received information indicating that a credit card account is an open ended revolving account, which in Florida has a statute of limitations of only 4 years, which I believe they were trying to beat by filing in 06/2013. Is that correct? Thanks!!

Expert:  Ely replied 1 year ago.
Friend,

Thank you for the quick response!!

You got it.

The actual last payment they received from me was 11/2008. The other dates I mentioned, 03/2008 & 04/2008 were actually 03 & 04/2009, however these were statements I received that showed late payment and overcharge fees. Again the last payment made was 11/2008 and the last charges were in 11/2008. Would this be the accurate date of last activity?

It goes by last date of when payment became due, but that is overcome by last date of payment made. So if you paid in 11/2008, then the statute of limitations is "reset" from that time. So now, we are looking at 11/2008 as the start date for the clock to count down.



Also, I have received information indicating that a credit card account is an open ended revolving account, which in Florida has a statute of limitations of only 4 years, which I believe they were trying to beat by filing in 06/2013. Is that correct? Thanks!!

Ah, well you did not tell me that this was an open-ended account! For contracts (plain and simple), FL has a five year statute of limitations. But for open-ended accounts, the statute of limitations is four years, indeed. Fla. Stat. Ann. § 95.011 et. seq.

It sounds like they are trying to file as soon as possible, of course.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

Ely, thank you again for your help. one last clarification, if you don't mind. A portion of your answer, "It goes by last date of when payment became due, but that is overcome by last date of payment made."


 


you mention that it goes by last date of payment due but it is overcome....


 


Do I understand you correctly that the last date of payment made supercedes the last date of payment due? So my receiving the statement that reflects continued finance charges but no actual activity in 06/2009 with a payment due date of 07/2009 is then superceded by the last payment made in 11/2008? I want to work out paying the debt but want to avoid a judgement against me and if the SOL is up then no judgement can be won as I understand it, does that sound correct?


 


Again Ely, thanks for all the help, your answers and response have been fantastic and I will rate you accordingly!!!


 


 

Expert:  Ely replied 1 year ago.
I do not mind at all and thank you for your kind words.

Do I understand you correctly that the last date of payment made supercedes the last date of payment due?

Exactly.

So my receiving the statement that reflects continued finance charges but no actual activity in 06/2009 with a payment due date of 07/2009 is then superceded by the last payment made in 11/2008?

Remember again that finance charges do not matter. It is (1) date when the payment became due, (2) superseded by any payment made later (if any). So their "surcharges" do not matter.

So, the SOL begins running on:

1) Date of when it became due;
2) Superseded by any payment made later (if any).

Their surcharges, liens, etc, do not affect the SOL beginning date.

Again Ely, thanks for all the help, your answers and response have been fantastic and I will rate you accordingly!!!

Thank you.
Customer: replied 1 year ago.

Hmmm.....


 


So, the SOL begins running on:

1) Date of when it became due;
2) Superseded by any payment made later (if any).


 


When u say any payment made later..... This is a credit card account and I made a scheduled payment on 11/15/2008 and also had some charges, with the last being on 11/24/2008. I received normal statements from the credit card company with due dates of 12/15/2008, 01/15/2009, etc. all the way up to 06/15/2009, however NO payments or additional activity occurred other than late payment, over limit and finance charges during that time.


I am slightly confused by the superseded by any payment made later provision...


I have statements from after the last payment in 11/2008 (the 11/2008 charges showed up on the 12/2008 statement) with due dates also after the last payment date (as mentioned above).


My question is...does the last payment on 11/2008 supercede the date when it became due if I am receiving additional statements after that payment? (does this make it a payment later)?

Expert:  Ely replied 1 year ago.
J,

I do believe that you may be "overthinking" this issue.

So, the SOL begins running on:

1) Date of when it became due;
2) Superseded by any payment made later (if any)
.

Yes.

My question is...does the last payment on 11/2008 supercede the date when it became due if I am receiving additional statements after that payment? (does this make it a payment later)?

By payment I mean you actually giving them money. Them sending you a bill does not count as "payment." So if you made a payment in 11/2008, then the SOL starts from there.

That is it - everything else is superfluous.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 88710
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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