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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102601
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Second opinion] ElyI would like a second opinion for my

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Second opinion] HI ElyI would like a second opinion for my case. Let me know if you have time to review and I will provide the necessary facts
Hello and thank you for requesting me. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.
I am currently away from the site and will only be back in the late evening. If you do not mind waiting, I would be happy to provide my opinion. And yes, I'd need the background of the case.
If you'd rather get a quicker opinion - let me know - and I will opt out and open this up for other experts available now.
Customer: replied 9 months ago.
I can wait. Here is background of the case:I loaned my friend money for his skin care business without a written contract and he verbally agreed to pay me back as soon as he retails the skin care products. There was no due date on the loan. It was a simple agreement.It all started by me lending him my credit cards to use to pay for the discounted skin care products onlineI received a total of 7 reimbursement checks totaling $960 and then for whatever reason, he no longer wanted to do skin care business. He found something different and was interested in doing the life insurance business, and he introduce me to an Insurance Agent to see if I would like to get licensed and sell life insurance. The Insurance Agent talked about the business opportunity and she recommended I stop contributing to my 401k and get Life Insurance for retirement, and to rollover my 401k to an Annuity. It sounded like a great opportunity and I wanted to see if my family would be interested, so I introduce my family to the Insurance Agent.After that, I received some strange text messages from my friend. Here is all what he said:"There is only one thing I need to know. Did you or did you not roll over your 401k?Okay, since you're not answering, I'll give you two outcomes and it's either one or the other.1. You DID NOT roll over your 401k and you didn't give up all your family and friends leads. Which means that we will be able to use the money that we would get on the commissions to payoff the debt owed from the Seacret skin business venture.2. You lied to me and rolled over your 401k AND gave Linda your family and friend leads. Which would mean that YOU would be responsible for the entire debt and our partnership is over PLUS our friendship is in question. Think carefully how you respond to this.We are done. I will ship the skin care products along with anything you paid for to the address I have on file for you. I have your work address on file. I'll send your stuff to that address. Oh and I am not reading anymore of your texts. You had your chance to talk to me in person but you were too tired. I'll send it out this coming week. I'll insure it and pay for the confirmation as well.Naw, I don't take what doesn't belong to me. And your right.Your finances are none of my business, but I'll tell you again, wait until you can get the commission from your 401k rollover so you can use the money to pay back the loans you took out. It's what I've been trying to tell you this whole time but you insist on playing ignorant to what I've been trying to tell you."The date of the last text message was send on September 3, 2013.Here's the thing. I have absolutely no idea what my friend is complaining about. I am not sure why he would be concerned about my 401k and my leads. It seems my friend got mad because he thought I rollover my 401k. It is my 401k and my leads, not his. I don't get the commission part. I do not get paid a commission if I rollover my 401k. I don't know what the commission, my 401k and my leads has to do with anything. He owes me money. I also have an earlier text from my friend that says "I'll figure out how to get you paid back and and we can part ways if that is what you want!"I try to explain all this to the Judge, and Judge looked at when I received the last reimbursement check, which was dated on January 19, 2013, and she said the statute of limitation has run on my claim, unless I have something in writing, I have an oral contract with a 2 year statute of limitationI told the Judge I do not have standard written agreement. I have a text from my friend says he will figure out how to get me paid back, another text admitting that the debt happened, plus scanned images of the checks that says "For reimbursement", my credit card bills to substantiate the debt, the text that says I would be responsible for the debt if I rollover my 401k and if I gave my leads to the Agent, and lastly, a text that says he will ship the products to my work address, which I never received. I thought I could rely on all this and would assume that statute of limitation would expire September 3, 2017The Judge looked at the text messages, but could not not accept it as a written agreement and said my statute of limitation has expired, and she ruled for the defendant. That was it.My friend still has unused skin care products at his house that is still saleable, and I paid for products I don't even have and want.I am not sure if the Judge actually read the entire text messages as she did not provide any further comment about it.Was the Judge correct? What are my chances of getting the judgement cancelled?
I am sorry for the wait.
Regardless of all of the above, the matter rests on on statute of limitations, something called statute of frauds, and, text messages.
STATUTE OF LIMITATIONS
Oral or written, the statute of limitations is 2 years in California. For written contracts - 4 years.
The statute begins running from date of last payment and in some instances, affirmation of debt via writing.
STATUTE OF FRAUDS
According to Cal. Civ. Code. 1624, any agreement that takes more than a year to complete HAS TO BE in writing. If it is not, it is not binding.
If the contract had not specified repayment date, the Court fills in what is reasonable and applies the above.
TEXT MESSAGE
Text messages MAY be seen as writing - the Courts still differ widely and it is much on a case by case basis. I can go into nuances of both yes and no, but suffice it to say that a healthy argument can be made for EITHER SIDE on this. Hold on to that a second.
APPLYING STATUTE OF FRAUDS and STATUTE OF LIMITATIONS
Say that the Court sees the text messages as NOT writing. If so, statute of frauds makes the contract impossible to enforce since the repayment was obviously meant to go on for more than a year. That's it - end of story. We don't even get to statute of limitations, which would also invalidate it.
Say that the Court sees the text messages as writing affirming the contract, then statute of frauds does not apply. Also, then, January 19, 2013 was the last time payment was made (the text September 3, 2013 does not affirm the debt, so it does not count). But the last payment made was still on January 19, 2013. If the text messages count as writing, then the statute of limitations is January 19, 2017.
The problem is arguing that text messages count as writing. Right now, there is no consensus. You'd need fine case law and a good attorney to argue this. There IS a shot, but honestly, it may not be worth the finances to appeal the decision (I do not know how much you are owed), considering that you'd be entering a very gray area of law.
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Customer: replied 9 months ago.
I think I understand what you saying.My friend still has not mailed me back the products and I have already paid for it, so I am at loss how to approach thisWhat would you say these specific text messages sent by him would affirm?"You lied to me and rolled over your 401k AND gave Linda your family and friend leads. Which would mean that YOU would be responsible for the entire debt"" I will ship the skin care products along with anything you paid for to the address I have on file for you. I have your work address on file. "If I didn't rollover my 401k and gave my leads (which I didn't), then according to him, wouldn't that imply he would be responsible for the debt?If my friend believes he doesn't owes me money, it would not be necessary at all for him to send me that text telling me I am responsible for the debt, and he did say he would ship the products to my work address, but I have not received it.I don't know if he used the products for personal use, or if maybe he sold them all.When the Judge ask my friend why he thinks he doesn't owe me money, he just said I gave him my credit cards and there was never any promise to repay it all back. That was it.My friend did not explain the text messages he send me and where the products are

I cannot say. Honestly it is up to the Judge. I do not think they affirm the debt, honestly. Even if they did, they must still be seen as WRITING to be effective.

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Customer: replied 9 months ago.
Let's suppose I get the judgement cancelled, but by the time I got my response in the mail, my statute of limitation (January 19, 2017) would already expire. Could I still file new claim?
I am not sure what you mean judgment cancelled.
Customer: replied 9 months ago.
I lost my case and since I can not appeal, my only option is to fill out SC-form 108 to request to cancel judgement and explain why the court applied wrong law to my case.
Customer: replied 9 months ago.
If I received the court's response after January 19, 2017 and if it says my request to cancel judgement has been granted, could I still file a new claim, even though my statute of limitation has expired?
Customer: replied 9 months ago.
Nevermind, I found the answer. Thank you for help!
My apologies for the wait.
Ah, okay.
No sorry, cancelling your judgment is not going to "reset" the statute of limitations.
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Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!
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