Code of Civil Procedure
- Open Acct.:
- No writing
- Oral Contract;
- § 339.
- Within two years:
- An action upon a contract, obligation or liability not founded
upon an instrument of writing, except as provided in Section 2725 of the
Commercial Code or subdivision 2 of Section 337 of this code;
- Open Acct.: Reduced to writing-
- Written Contract: §337
- Within four years:
- 1. An action upon any contract, obligation or liability founded upon an
instrument in writing, except as provided in Section 336a of this code;
- 2. An action to recover
- (1) upon a book account whether consisting of one or more entries;
- (2) upon an account stated based upon an account in writing, but the acknowledgment of the account stated need not be in writing;
- (3) a balance due upon a mutual, open and current account, the items of which are in writing; provided, however, that where an account stated is based upon an account of one item, the time shall begin to run from the date of said item, and where an account stated is based upon an account of more than one item, the time shall begin to run from the date of the last item.
LAST ITEM MEANS ON A CURRENT, MUTUAL AND OPEN ACCOUNT. ONCE AN ACCOUNT HAS BEEN CLOSED TO FURTHER CHARGES, ANY PAYMENTS ON THAT ACCOUNT DO NOT EXTEND THE START OF SOL
"However, if the obligation sued upon constitutes an open book account, the statute of limitations begins to run from the date of the last entry on the account. Code of Civil Procedure § 337(2). But an open book account becomes closed, and the statute of limitations begins to run, once the account creditor ceases to extend credit on the account and there is no further activity on the account other than payment being made. RNC, Inc. v. Tsegeletos (1991) 231 Cal.App.3d 967, 972."
California "Borrowing" Statute
§ 202. Cause of action accruing without the State. An action based upon a cause of action accruing without the State cannot be commenced after the expiration of the time limited by the laws of either the State or the place without the State where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the State the time limited by the laws of the State shall apply.
THE FOLLOWING IS TO BE USED FOR THE "SOL" LETTER PARAGRAPH RELATING TO STATE LAW. USE EITHER JUST THE REFERENCE-OR INCLUDE A COPY OF THE WHOLE SECTION.
California Penal Code
- PENAL CODE SECTION 518-527
- 518. Extortion is the obtaining of,or attempt to obtain property from
another, with his consent, or the obtaining of an official act of a public
officer, induced by a wrongful use of force or fear, or under color of official
- 519. Fear, such as will constitute extortion, may be induced by a threat,
- 1.To do an unlawful injury to the person or property of the individual
threatened or of a third person; or,
- 2.To accuse the individual threatened, or any relative of his, or member of his family, of any crime; or,
- 3. To expose, or to impute to him or them any deformity, disgrace or crime; or,
- 4. To expose any secret affecting him or them.
- Every person who extorts any money or other property from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, such as is mentioned in Section 519, shall be punished by imprisonment in the state prison for two, three or four years.
- Every person who commits any extortion under color of official right, in cases for which a different punishment is not prescribed in this Code, is guilty of a misdemeanor.
- Every person who, by any extortionate means, obtains from another his signature to any paper or instrument, whereby, if such signature were freely given, any property would be transferred, or any debt, demand, charge, or right of action created, is punishable in the same manner as if the actual delivery of such debt, demand, charge, or right of action were obtained.
- Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.
- Every person who attempts, by means of any threat, such as is specified in Section 519 of this code, to extort money or other property from another is punishable by imprisonment in the county jail not longer than one year or in the state prison or by fine not exceeding ten thousand dollars ($10,000), or by both such fine and imprisonment.
- Upon conviction of a felony violation under this chapter, the fact that the victim was an elder or dependent adult, as defined in Section 368, shall be considered a circumstance in aggravation when imposing a term under subdivision (b) of Section 1170.
- Any person, who, with intent to obtain from another person any money, article of personal property or other thing of value, delivers or causes to be delivered to the other person any paper, document or written, typed or printed form purporting to be an order or other process of a court, or designed or calculated by its writing, typing or printing, or the arrangement thereof, to cause or lead the other person to believe it to be an order or other process of a court, when in fact such paper, document or written, typed or printed form is not an order or process of a court, is guilty of a misdemeanor, and each separate delivery of any paper, document or written, typed or printed form shall constitute a separate offense.
- The California Fair Debt Collection Practices Act
- Adopted in 1977,regulates the conduct of "debt collectors."
- The Act prohibits numerous unreasonable, deceptive,dishonest and unfair debt collection practices by debt collectors,and it also regulates the form and content of communications by a debt collector to a consumer debtor and others.
- Under the California statute,a "debt collector "is "any person who,in the ordinary course of business,regularly, on behalf of himself or others,engages in ...the collection of consumer debts ."
- 2 ;
- A "consumer debt "is a
debt "incurred by a natural person in exchange for property,services or money acquired,on credit,for personal,family,or household purposes "--that is,a debt arising from a consumer marketplace transaction in which payment is deferred or delayed.
- The California statute applies to the debt collection activity of both original creditors and debt collection agencies that regularly collect debts.
- In Kimber v.Federal Financial Corp.(M.D.Ala.1987)668 F.Supp.1480,
the court held that it is "unfair " within the meaning of the federal statute to file a time-barred collection suit against a consumer,and that it is a deceptive act to even threaten to file such a suit.
- The court found that the suit itself misrepresented the legal status of the claim by implying that the claim was lawful and that the collector would prevail.The court found that strong legal and ethical policies existed against filing suits after the statute of limitations had expired,and that the collector had no reason to believe that the statute of limitations had been tolled.These policies,the court said,were strengthened by the federal statute 's purpose to protect even unsophisticated debtors who might pay a time-barred claim rather than assert a defense.
- Other examples include claiming a debt exists when it is asserted against a person who is not legally obligated (for example,a consumer 's relative), or when the debt has been discharged in bankruptcy,or when it arises out of unordered mailed merchandise.
- See Fair Debt Collection,4th ed (National Consumer Law Center 2000),§§ 5.3.3 and 8.3.3,and Pridgen,Consumer Credit and the Law (Clark Boardman Callaghan,1990,(2000 Supp.),§ 13.07 [4 ].
- In determining whether conduct violates the statutory rules,courts take into account the inherently coercive nature of debt collection.
- See Duffy v.Landberg ,2000 U.S.App.LEXIS 11614 (8th Cir.2000).
- The FTC has construed the FTC Act to prohibit misrepresenting that an obligation exists when it does not.
- See Fair Debt Collection,4th ed.(National Consumer Law Center 2000),§ 5.3.3..
- The FTC has also construed the FTC Act to prohibit misrepresentation of the effect of default on the debtor 's credit standing.
- See Fair Debt Collection,4th ed.(National Consumer Law Center 2000),§ 8.3.7..
93.15 USC § 1692e(2)(B)
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