Re: jim10101 - SOL and partial payments

Posted by lawguy (151.205.69.144) on April 11, 2003 at 15:34:37:

In Reply to: Re: jim10101 - SOL and partial payments posted by WHY CHAT on April 11, 2003 at 14:32:35:

"When plaintiff sues on running or current open account, partial payment on account acknowledging entire indebtedness begins statute of limitations running anew as to the entire amount." HUDSON v. GAME WORLD, INC., 484 S.E.2d 435 (N.C.App. 1997)

"There is no question that partial payment on an open account either tolls or revives the statute of limitations." CENTRAL NAT'L BANK & TRUST CO. v. STETTNISCH, 821 P.2d 1066 (Okla.Civ.App.Div 3 1987)

"Debtor's having made partial payments on open account, tolled statute of limitations for creditor's action against him" GREER LIMESTONE CO., v. NESTOR 332 S.E.2d 589 (W.Va. 1985)

As to credit cards in specific:

See MANUFACTURERS AND TRADERS TRUST CO. v. LINDAUER 513 N.Y.S.2d 629 (N.Y.Sup. 1987) Creditor sued debtor and debtor's wife (joint cardholders) for balance due on defaulted credit card. Creditor had obtained default judgment against husband. Filed suit against divorced wife as well. Court held that husband's partial payments on the credit card did not toll the SOL as to the divorced wife, as a partial payment by one joint debtor does not toll the SOL for the other joint debtors. Implied that partial payment would otherwise toll the SOL on a credit card.

See also HIMELFARB v. AMERICAN EXPRESS CO. 484 A.2d 1013 (Md. 1984). Credit Card co. sued debtor for payment of balance on defaulted credit card. Court held that doctrine of partial payment did not apply in the instant case because debtor had unequivocally denied responsibility for the portion of the debt being sued upon and had limited his partial payment to the portion of which he admitted responsibility and subsequently paid in full. Again, implies that an unconditional, voluntary partial payment tolls the SOL.

Those are the only two cases from all U.S. jurisdictions dealing with the partial payment doctrine as applied specifically to credit cards. It is clear from the text of these opinions that the courts make no distinction between credit cards and any other contract claim for purposes of applying the partial payment doctrine for SOL tolling.

To reiterate, partial payment will not toll the SOL if the payment is not voluntary and unconditional. Further, some states do not subscribe to this doctrine.

TILA, the FDCPA, the FCRA, and the FCBA do not alter or affect the SOL for state law breach of contract claims, and there are no recorded cases of such an issue ever being raised.

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