SOL on checks? Kristi or any1 else

LK:
You know after reviewing the issues, I think you may be on the right track (or at least going in a credible direction). The attorney is probably under the wrong impression about the SOL, believing it to be four (4) rather than six (6) years. If he/she pleads the case under this impression, one could raise the absolute defense related to SOL. But this is certainly speculative!

Another aspect to consider is whether or not the issues stem from a commercial, or consumer transaction. If the former is relative then FDCPA doesnâ??t necessarily apply, yet the aspects of SOL are not thwarted; those remain despite lack of FDCPA authority (if such applies).

Now if the lawyer gave until 5/21/01 to respond, and the SOL becomes stale on that date. The attorney couldnâ??t file the action before that date, given aspects of good faith and fair dealing. Meaning if he/she has committed to hold action until that date theyâ??d have to wait, yet filing after would stale the SOL (even by one day). Can you sayâ?¦ BOX? Check out Nevada code regarding computation of time:

• 
  NRS 11.200 Computation of time.
  The time in NRS 11.190 shall be deemed to date from the last transaction or the last item charged or last credit given; and whenever any payment on principal or interest has been or shall be made upon an existing contract, whether it be a bill of exchange, promissory note or other evidence of indebtedness if such payment be made after the same shall have become due, the limitation shall commence from the time the last payment was made.
  [1911 CPA § 26; RL § 4968; NCL § 8525]

As far as Interstate Commerce, personally I wouldnâ??t go there. Itâ??s too subjective an issue and the evidence doesnâ??t seem to support Interstate trade, which is but one aspect for alleging required compliance; itâ??s too heady an argument to offer any real hope.

With regard to objecting to the venue, if a case is actually filed in Nevada (which is the likely location) â?? irrespective SOL facets for a moment. One objecting to the jurisdiction would have to do so under NRS (Nevada code), which essentially dictates a series of rules. Below is NRS 66.020, the pertinent cite:

• 
  NRS 66.020 Place of trial may be changed in certain cases .
  1. The court may, at any time before the trial, on motion, change the place of trial in the following cases:
  (a) When it appears to the satisfaction of the justice before whom the action is pending, by affidavit of either party, that the justice is a material witness for either party.
  (b) When either party makes and files an affidavit that he believes that he cannot have a fair and impartial trial before the justice by reason of the interest, prejudice or bias of the justice.
  (c) When a jury has been demanded, and either party makes and files an affidavit that he cannot have a fair and impartial trial on account of the bias or prejudice of the citizens of the township against him.
  (d) When from any cause the justice is disqualified from acting.
  (e) When the justice is sick or unable to act.
  2. In lieu of changing the place of trial, the justice before whom the action is pending may for any of the cases mentioned in subsection 1 call another justice of the county to conduct the trial.
  [1911 CPA § 774; RL § 5716; NCL § 9263]-(NRS A 1985, 232)

 

When a bank puts a hold on a deposit aren't they required to honor checks presented during the hold after the deposit clears,all with out penality?

looks like a banking error rather than a NSF check deal to me!

 

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What's criminal or fraud about a bank puting a hold on an account? ? ? ?

 

How would the above apply because the check writer did in fact have the money in the account?

 

Ender:
Please understand that while Iâ??d (personally) enjoy going into greater detail regarding your situation, ethics dictate that I take a step back (if only a small one). Again, the issues youâ??re facing are far too complex for me (not speaking for anyone else) to comment on specifically. Web discussion boards do have limitations, and unfortunately this is one of them; detailed multipart issues should be dealt with personally by a lawyer â?? at least in part.

I will do this much though, because Iâ??d truly like to help and donâ??t want to leave you in the lurch (or feel as though I have). Youâ??ve a savvy ally in LK who, unlike myself, is free to â??discussâ? as a private individual and (as is evident by the above-post) clearly understands my meanings.

What Iâ??ll do from here on is mainly comment generally, and even then most probably in relation to LKâ??s (or anotherâ??s) comments. Anything else is questionable conduct, and I donâ??t need any hassles with the Bar right now; as Iâ??m far to busy with the Credit Defenses projectâ?¢ for that. I hope you understand and will forgive my limitations, imposed by standards Iâ??m bound to uphold.

Thanks in advance.

 

I strongly agree that is a distinct likelihood, if I understand the issues correctly (and I believe I do). The speculative part comes in as to the lawyerâ??s mindset, not to mention skill level. Youâ??d be surprised at the number of general practice guys who attempt collections, only to end up facing (factual) FDCPA allegations. Collections law like any other specialized field requires an in-depth study of the angles.

Put it this way, if I had to put money on it..? LOL, Iâ??d practically bet the farm this attorney is operating under the wrong guidelines, specific to SOL, based on the information posted here.

 

This arbitration thing is new in most baliwicks. Most of the states are looking at it because it's been heavily touted by various organizatons as a way to alleviate the overburdening of the court system. Many states do have it in place and working, many still do not.

The norm in the courtroom is that the date for hearing is set, the case goes to court, the defendent, being "properly " frightened of the whole process never shows and the deal is all done and over with in about 10 minutes time.

It's just about a paper mill rubber stamp process. Plaintiff's attorney prays for judgement and the judge looks around to see if the defendant wishes to make an appearance and since no one gets up and says anything, it's all over.

The system you are talking about is the new "way to go" and is being implemented in most places. There will probably be some states who may take many more years before they adopt the new procedures. States having high populations are forced to adopt the new process while states that have low populations and little courtroom crowding have less compulsion to do so.

So our procedures necessary to win must cover both types of situations.

 

ADR: Only â??NEWâ? To Some

For what itâ??s worth folks, coming from a Certified Mediator, thereâ??s a vast difference between arbitration and mediation. The process is part of ADR methods that have been implemented nationwide for going on 20 years, nowâ?¦ Itâ??s only new to some.

By the way, LK! Iâ??m anything but retired, was trained and certified with more than one class, and fetch as much an hour as some make in a week (I donâ??t â??volunteerâ? in any cases, at least not Pro Bono). So I resemble your remarks! [;-)

 

The Plain!

Ender:
In short, me likes the plan as it isnâ??t half bad. Having stated that, however, I (still) believe your interests would be well served by running the concept by an attorney. A lawyer will probably set you back a whole $50 bucks or so, for the consultation, but at least he/she will confirm what you already know. Think of it as an insurance policy, just to be on the safe side. The attorney may also suggest options LK hasnâ??t, and I canâ??t.

You could call your local Bar or the San Bernardino County Bar Association (who would have jurisdiction over opposing counselâ??s conduct). The SB County Barâ??s Lawyer Referral Line is: 909-888-6791.

 

Re: The Plain!

Tell me, Anthony, do you really think that an attorney would advise a potential client to use any such tactic as a validation letter?

I seriously doubt that one would do that. Just a personal opinion.

What's yours?

 

Re: The Plain!

It seems I read somewhere (maybe on bbauers' site) that atty's are barred from testifying on behalf of their clients. Wouldn't the creditor have to be in court (either in Nevada or Calif) to testify? If the creditor is not present and the atty testifies on his behalf and a judgement is won against Ender, would he then be able to have the judgement vacated??

Also, other than the fact that mediation I assume is a meeting of the minds and arbitration is a binding decision made by a third party, what are the other major differences between the two?

Thanks,
tml

 

Re: The Plain!

It seems I read somewhere (maybe on bbauers' site) that atty's are barred from testifying on behalf of their clients.

That was more than likely on one of my postings rather than on my site, although it might be there too.

And yes, that is correct. An attorney may not provide any testimony whatsoever in a case in which he is acting in the capacity of an attorney. An attorney may provide testimony in a case in which he is not an active participant but in the capacity of private citizen only.

Wouldn't the creditor have to be in court (either in Nevada or Calif) to testify?

No, he would not. His signed and sworn affidavit is sufficient. However, what one finds sometimes is that the attorney will make up an affidavit, sign it himself or have someone in his office sign it and then notarize it as being the true and original statement of the creditor. Proving that this is what happened is extremely difficult, but we had one case where one of our students was able to prove that the signed affidavit of the creditor was a forgery. It was never proven who the forger was, but that was not necessary. It was only sufficient to prove that the sworn affidavit of the creditor was a forgery and that got the case reversed. The creditor's attorney did not have the original contract either but rather a photo copy of the original upon which the signature of the creditor was not visible. The student had an original copy of the contract she had signed and the signatures on the sworn affidavit of creditor and that appearing on the original contract copy were so markedly different that it didn't require any handwriting expert to see it. Any such errors and a multitude more are grounds for reversal and subsequent legal action against both the creditor and his attorney. We always sue both at the same time so the creditor's attorney has to hire an attorney to defend him and so does the creditor. Of course, with a comedy of errors like that, the creditor probably would not hire that attorney to do anything ever again.

If the creditor is not present and the atty testifies on his behalf and a judgement is won against Ender, would he then be able to have the judgement vacated??

Yes. Absolutely. But Ender would want to wait until the judgement had been entered against him at the county recorders office to begin any actions. Ender would not want to make any objection to anything done incorrectly in court and at the original hearing because at that point in time a motion to amend from plaintiff's attorney would be granted and Ender would be out of luck. He would have lost a valuable grounds for appeal. By waiting until the judgement is official and recorded, Ender is then in the position of being able to raise the objection via motion for summary judgement at any time in the future. There is no applicable statute of limitations, but the creditor may never amend nor revise in any way. Ender would want to check out the entire proceedings with extreme caution so that he might discover every possible error in the proceedings and each and every error that he discovers becomes grounds for a new motion for summary judgement in case the first one fails for whatever reason.



Also, other than the fact that mediation I assume is a meeting of the minds and arbitration is a binding decision made by a third party, what are the other major differences between the two?

I would never agree to or attend any silly "mediation" or "arbitration" under any circumstances whatsoever that I can think of. If I am going to go to court, it's going to be on my terms and not those of anyone else. In my opinion, I could see little difference between mediation, arbitration and shooting oneself in the foot. It's an invitation to disaster, pure plain and simple. Those things are never held for your benefit. They are there to save the court and the creditor's attorney time and money and get an easy win for them. At any such meeting, all you would have would be some blitering idiot, probably dressed up like a phony judge just to make people think he had some importance or value. Nothing more than a scare tactic. If you even show your face at such a kangaroo kourt, you instantly become roast duck.

And that's my personal opinion, it's my right to have a personal opinion and all the opinions of court officers of any sort who care to call me dumb or stupid or ignorant or whatever because of my opinion can just go snail fishing for all I care.

I want them to make their mistakes in open court where I have recourse later. Once I go to some silly kangaroo kourt off in some side room somewhere, it's all over. I haven't go t a crying chance once I walk in the door.

 

Re: The Plain!

I have to agree with you regarding arbitration. However, from all I can gather I believe arbitration is mandatory in Oregon, and it seems that they very much lean toward the creditor, so I guess there is not much a person can do in that situation....except to keep very careful notes and hope for some mistakes to be made.

Thanks for answering my question.
tml

 

Re: The Plain!

Well, I don't know anything about Oregon law, but let me ask you a question.

While arbitration may well be manditory in Oregon, who is it exactly that the mandate falls upon? The debtor or the creditor?

What do they do if the debtor refuses to show up for arbritration? Cut off his head, put it in a little bird cage and hang it up in front of the court house for all to see?
Or do they throw him in jail for failure to appear? Suppose he shows up for the arbitration but refuses to say anything?
What are they going to do, put him in the stocks and whip him?

I think you ought to ask questions of that nature of an attorney so you get the right answers. Ask an attorney what makes it mandatory for you to go to arbritration over a debt and what are the penalties if you refuse? What happens if you show up and demand trial by jury?

Why let them off for cheap? I'm almost willing to bet that it might very well be mandatory for the creditor to go to arbritration prior to demanding to be heard by a judge, but I'm willing to bet that if the debtor don't show up or shows up and demands trial by jury, they can't do much about it.

If you are in that much hot water, then I'd sure want to put a stop to their little kangaroo kourt any way I could. I'd want them in court where the proceedings are a matter of court record so I could go back and fight later.

Ask some questions of people such as an attorney who can tell you what your optons really are.. Don't just take somebody's word for it.