 |
My mother purchased some goods from Sears in 2001. Shortly after purchasing these items,my mother and step father divorced... she never paid any payments on this merchandise. (It is still in her former home) She moved here in October 2001 and had a judgement against her in 2007. Which statute would prevail... Florida of 4 years or NJ with 6 years.
You need to specify what statute you are talking about. If you are referring to
a "Statute of Limitations," if the value of the property was high enough to classify
it's nonpayment as a felony, either under what my state calls "Theft by Deception," or "Failure
to Make Proper Disposition of Property," then there is no Statute of Limitations
on felonies.
In other words, it remains an outstanding infraction until it is paid for or
legally settled in some way.
Quote:
Originally Posted by Couchcarrot
I don't understand this advice - the Statute of Limitations exists no matter HOW HIGH the value. It's not an "under/over" kind of Statute.
Theft by Deception doesn't apply if it's "simply" failure to pay. What do you see as the deception? Failure to make proper disposition of property might fit - but I think it's a stretch that Sears is not going to make. Only my opinion but this is a legal board.
An infraction is an offense of a lessor level than a misdemeanor - I don't see this as an infraction.
I also don't see that the debt remains outstanding - the Statute of Limitations should apply.
As far as which State is involved - I'm involved in a bad debt involving two States. The debtor than moved to a third State. I have been advised to file in the third State (residence of the Defendant), citing the laws in the second State (residence of Defendant at time of the contract).
Under Kentucky Revised Statutes, these ARE under/over kind of Statutes. TheQuote:
Originally Posted by JudyKayTee
following, I copied from my Kentucky Criminal Law Manual:
KRS 514.040 Theft by Deception
(1) A person is guilty of Theft by Deception when he obtains property or services of
another by deception with intent to deprive him/them thereof.
A person deceives when he intentionally
(a) Creates or reinforces a false impression, including false impressions as to law,
value, "intention," or other state of mind, or
(b) Prevents another from acquiring information which would affect his/their
judgment of a transaction, or.....
Class D Felony: Value of property or service or amount of the check is $300 or more.
Class A Misdemeanor: Value of property or service or amount of the check is less than
$300.
Definition of infraction: The act of infringing
Definition of infringe: To encroach upon in a way that violates the law or the rights of
another
__________________________________________________ ______________
KRS 514.070 Theft by Failure to Make Required Disposition of Property
(1) A person is guilty of Theft by Failure to Make Required Disposition of Property
received when
(a) he obtains property upon agreement or subject to a known legal obligation to
make specified payment or other disposition
whether from such property or its proceeds or from his own
property to be reserved in equivalent amount; and
(b) he intentionally deals with the property as his own and fails to make the
required payment or disposition.
Class D Felony: Property value $300 or more.
Class A Misdemeanor: Property value less than $300
In Kentucky statutes the terms felony, misdemeanor and violation are used.
I used "infraction" in its colloquial sense, not as a legal term.
It wasn't specified by the OP whether she was talking about a statute of limitations or the time allowed to elapse before filing. As far as what I see as deception, an intent to pay was understood and agreed upon at the time the merchandise was received.
Failure to comply with that tacit agreement is deception.
Sadly couchcarrot if you take time to read, first this is not KY, and second it has nothing to do with criminal law, this is small claims or civil law. They are asking about the SOL in filing a civil law suit.
Please be more careful in giving your answer
Plus there are SOL on all criminal crimes except murder also, but that was not the question.
On this, since there was a judgement filed at this point and time SOL does not matter, the judgement will stay valid for @ 10 years and can be renewed for another 10 years.
You needed to challenge the judgement in court to challenge it for SOL. At the time of the hearing
You don't specify where "here" is, but the SOL of the state where the item was purchased would probably apply.
Aside to couchcarrot, Clkearly there was no attempt to deceive here. The property was purchased prior to a divorce. So the OP's mother probably expected her husband to pay.
Please make sure your answers can apply to the question being asked.
Oh, I know there are under/over provisions. I just believe that the Statute of Limitations would still rule because I have no idea how an Attorney could prove that a Sears charge card would be obtained for the specific purpose of fraud; therefore, you are back to the Statute.
If you read the question you will see that there already is a Judgment against her for this debt - the question is whether it was appropriate. I don't think it's worth the money appealing.
While Kentucky Law is fascinating the two States involved in this question are Florida and New Jersey so, again, I fail to see how your advice is relevant.
I believe that your answers are based on "this is the law" as opposed to "this is the question and this is what pertains to the situation."
As a "PS" - I can read and understand the Kentucky Statute as well as you can. I just fail to see how it pertains. (I can also understand the NY Statute and could have researched that - it just doesn't pertain to the question.)
Again - I have no idea how an Attorney could/would prove the INTENT of the person who obtained the line of credit (or credit card) at the moment she signed the agreement.
I actually did read it carefully, more than once. Many posts are
Inadvertently asked under other threads. That was why I asked what
Statute was being asked about, because all laws are called statutes.
"Plus there are SOL on all criminal crimes except murder also, but that was not the
question."
What would be the SOL for rape or arson, I wonder.
Quote:
Originally Posted by Couchcarrot
It doesn't really matter unless the OP's mother raped or burned down Sears. You cannot give an opinion based on "many posts." The OP is VERY specific in her question.
You are off target.
Bottomline here is that the OP's question was pretty specific. It dealt with a judgement for unpaid credit cards. Obviously Sears was not pursuinbg criminal charges. This is simply a matter od debt collection. So your response, while technically correct was inappropriate for the question asked.Quote:
Originally Posted by Couchcarrot
End of story, lets get back to helping the OP. Any further debate on the issue will be removed.
Like everyone else has already said, you need to tell us where your mother purchased the goods.Quote:
Originally Posted by pcrawford0702
Your mother also needs to find out who accepted service on her behalf for the court summons. She may be able to have the case dismissed on the grounds of improper service. She should also find out what date the judgment was entered; was it 2007, or was that when she learned about it?
This appears to be just about the only on-track in this whole thread. I used to ride a blind horse that could stay on-track better. :)Quote:
Originally Posted by Fr_Chuck
Anyway, I agree with just about everything Fr. Chuck says (as I quote), except the judgment will stay valid for @ 10 years and can be renewed for another 10 years"" part. That's a matter of the law of the particular state.
As far as which state SOL applies, it would be the SOL of the state in which the hypothetical lawsuit is filed. Sears could file in whichever state they want, including where the defendant is located or where the sales took place.
I disagree. We don't know where or when the suit was filed. It may not have been done within SOL, which can get the judgment dismissed.Quote:
Originally Posted by AK lawyer
I agree with This8384 - once again, someone is reading into a post, answering based on information which was not disclosed.
Also note that not everyone can actually spell Judgment.
As Chuck said, if the judgment has been entered already, it's too late to raise the issue of a statute of limitations.Quote:
Originally Posted by this8384
The OP said there was a judgment in 2007. Admittedly OP doesn't say which state that judgment was from, and where "here" is, but we have to exercise some deductive reasoning. The alternative is to never answer a question that doesn't have sufficient info.Quote:
Originally Posted by JudyKayTee
If Florida is "here", it would seem that the SOL (4 years we are told) should have been raised.
If Sears is now attempting to sue in New Jersey, in additon to the SOL, it would also be a defense that an (out of state?) judgment has already been entered. A plaintiff cannot get two judgments on the same claim.
But we are probably ***** in the wind, if in fact the OP has forgotten about his/her question.
So you're stating that if the judgment was obtained out of SOL, that's not grounds for dismissal?Quote:
Originally Posted by AK lawyer
Right.Quote:
Originally Posted by this8384
If you don't answer, and plead the SOL, the case goes to judgment. The SOL has been waived.
None of that makes any sense. If the OP had appeared to plead SOL in the first place, the judgment wouldn't have been by default. If the OP never received proper notification of the pending case, then she didn't "waive" anything.Quote:
Originally Posted by AK lawyer
Again, this:
Is not the issue at hand. Nobody ever mentioned a pending lawsuit and I have no idea where you got that idea from.Quote:
Originally Posted by AK lawyer
Withoiut a pending or threatened lawsuit, any thought of a SOL is meaningless.Quote:
Originally Posted by this8384
| All times are GMT -7. The time now is 09:04 AM. |