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Delta-Lawyer
Delta-Lawyer, Attorney
Category: Legal
Satisfied Customers: 3546
Experience:  10 years practicing IP law and general litigation
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In Texas I have been sued by a bank loan that matured 11/11.

Customer Question

in Texas I have been sued by a bank for a loan that matured 11/11. my last payment was 5/5/11. They are claiming a 6 yr statute and I say it's 4. I need to answer a motion for summary judgement-HELP!
Submitted: 8 months ago.
Category: Legal
Expert:  Delta-Lawyer replied 8 months ago.

I hope this message finds you well. I am a licensed attorney with over a decade of litigation experience. It is a pleasure to assist you today.

Texas has a weird set up relative to this exact issue. The Texas Business Codes says 6 years. See below:

The Texas Business and Commerce Code § 3.118. STATUTE OF LIMITATIONS. -- (a) Except as provided in Subsection (e) [regarding the obligation of a party to a certificate of deposit], an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.

The Texas Civil Practice Code says four years to perfect a lien. See below:

§§ 16.035(a) and (d) of the Texas Civil Practice and Remedies Code provide for a four year limitation period for the enforcement of a lien securing a debt.

Here is a link to the whole law: http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.16.htm#16.004

The statute of limitations on debt for residents of the State of Texas is four (4) years. In Texas, this refers to oral agreements, written contracts (car loans, installment loans), promissory notes and open accounts. In Texas, the Statute of Limitations clock starts on the day the last payment on the account was made. This is often referred to as the ‘date of last activity’ or DLA.

The Texas Civil Practice Code is more widely accepted than the business code, and as such, it is my opinion, and the widely held opinion otherwise, that the statute of limitations is four years here and the burden is on the plaintiff to show otherwise.

The time limit for a suit on a note is generally four years in Texas, but it can be extended to six years under certain circumstances when the note in question qualifies as a negotiable instrument.

In determining that the promissory note at issue in the lawsuit was not a negotiable instrument and that a four year statute of limitations applied, the Dallas Court of Appeals noted that a negotiable instrument represents a sum certain in order to provide commercial certainty in the transfer of negotiable instruments and to make negotiable instruments the functional equivalent of money. Because the promissory note at issue in the lawsuit represented a revolving line-of-credit, the borrower could prepay all or any portion of the amount due without incurring any prepayment penalty, the note stated the amount due was $125,000 “or so much as may be outstanding” and the unpaid principal balance may not have been determinable without reference to the creditor-bank’s records, the amount due on the promissory note was not readily determinable. As a result, the promissory note did not contain an unconditional promise to pay a sum certain and was not the functional equivalent of money. Accordingly, the promissory note was non-negotiable and a four year statute of limitations applied.

In order to determine the statute of limitations on a note, the note should be analyzed to determine if it can be classified as a negotiable instrument and if there is any doubt as to its status, any lawsuit to collect on the note should be filed within four years of the date on which a cause of action accrues.

See: http://600commerce.com/wp-content/uploads/2015/02/Bank-of-Am.-N.A.-v.-Alta-Logistics-Inc..pdf

Let me know if you have any other questions.

Please rate my answer positively as well (three or more stars) so I can receive credit for my work.

Best wishes going forward!

Customer: replied 8 months ago.
I already have everything you sent me!!!
Expert:  Delta-Lawyer replied 8 months ago.

Good deal. You need to cite the case that is attached and pull some language from that case in your motion. Your argument is that this promissory note is a non-negotiable instrument and therefore it is inarguable that the four year statute of limitations is applicable and the case should be dismissed with prejudice.

Expert:  Delta-Lawyer replied 8 months ago.

Just checking to see if you had any additional questions. I want you to be as comfortable as possible moving forward. Thanks!

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