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Author Topic: ? looking for caselaw re: does payment by another toll sol?  (Read 6046 times)
petebull
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« on: December 24, 2010, 06:54:06 AM »

I am looking for case law regarding whether a payment or partial payment on an account (credit card) can toll the SOL for an open account if that payment is made by someone other than the account holder.

I know that per 95.051(1)(f) it does for accounts based on written instruments, but I cannot locate any case law for accounts not based on written instruments.


Basically if someone (other than you) makes a payment on your account "for you" (but not at your request) does that reset the SOL to the date of that payment, or could you successfully argue that since YOU didn't make the payment the payment does not toll the SOL?

---

the closest case I could find is:


Quote from: Arvelo v. Park Finance of Broward, Inc., 15 So. 3d 660
Arvelo v. Park Finance of Broward, Inc., 15 So. 3d 660

Park Finance also argues that the statute of limitations was tolled by "the sale of the collateral and resulting partial payment," under section 95.051(1)(f), Florida Statutes (2002). But the statute on tolling does not expressly apply to those unilateral actions by a creditor that may reduce an indebtedness. Ms. Arvelo did not make a payment of principal or interest to Park Finance after March 2002; rather, Park Finance unilaterally exercised remedies and reduced the debt. The courts considering this scenario have held that tolling applies to voluntary payments by the obligor, not to involuntary actions and reductions in indebtedness by the creditor. See, e.g., Zaks v. Elliott, 106 F.2d 425 (4th Cir.1939);[5] Jacksonville Am. Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 845, 197 So. 672, 677 (1940).


unfortunately Zaks v. Elliott, 106 F.2d 425 (4th Cir.1939) is not a Florida case, and I cannot locate Jacksonville Am. Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672(1940)

Arvelo seems to contradict most other Florida cases regarding 95.051(1)(f), see Cuillo v. McCoy, 810 So. 2d 1061

Quote from: Cuillo v. McCoy, 810 So. 2d 1061
Cuillo argues that because he did not make the partial payments, the tolling of the statute of limitation for those partial payments did not apply to him. The cases cited in support of that position are cases which were decided prior to the enactment of section 95.05(1)(f) and, therefore, do not apply. The statute itself does not require any particular person or entity to make the partial payment to toll the statute. The original agreement stated that any assignment of the agreement by Toyota of Palm Beach shall not relieve it of its obligations to pay the McCoys under the original agreement. Cuillo's assumption of the original agreement bound him to follow the terms of the original agreement. Therefore, we hold that by application of section 95.01(1)(f), the partial payments made by Chamberlain toll the statute of limitations as a matter of law and the trial court was correct in granting the summary judgment.


Cuillo and Arvelo are actions based on a written instrument so they don't really apply to accounts not based on written instruments. 

See 95.051 F.S.(1)(f), (which in my opinion is bad legislation...)


Needless to say, I'm at a loss...I would greatly appreciate any feedback this board can give.
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petebull
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« Reply #1 on: December 24, 2010, 11:17:22 PM »

I found this in another post: http://floridadebtor.com/index.php?topic=324.0

Quote from: fraudfighter
§103 Part Payment

The payment of any part of the principal or interest of any obligation or liability founded on a written instrument tolls the running of time under any statute of limitations. (§95.051(1)(f), Fla. Stat.)

Accordingly, a debtor’s partial payment of an indebtedness will start the limitation period running anew on the indebtedness, thereby removing the bar of the statute of limitations,
Wester v. Rigdon, 110 So.2d 470 (Fla. 1st DCA 1959).

If circumstances attending the part payment support a fair and reasonable inference that the debtor intends to renew his or her obligation to pay.
Jacksonville American Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940);
Woodham v. Hill, 78 Fla. 517, 83 So. 717 (1919).

If such circumstances exist, the part payment is regarded as an acknowledgment of the indebtedness, raising an implied promise to pay the balance
Jacksonville American Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940);

when the payment is made before the statute has run.
Wester v. Rigdon, 110 So.2d 470 (Fla. 1st DCA 1959).

The statute of limitations on a hospital’s cause of action against a patient’s wife, which alleged that she was a guarantor in a written agreement to pay for services provided to the patient, was tolled by payments the wife made to the hospital.
Hospital Constructors Ltd. ex rel. Lifemark Hospitals of Florida, Inc. v. Lefor, 749 So.2d 546 (Fla. 2nd DCA 2000).

§104 Who must make part payment

In order to start the limitations period anew on an indebtedness, thereby circumventing the bar of the statute of limitations, a part payment must be by the person to be charged or the person’s agent – that is, by another in the debtor’s behalf with the debtor’s knowledge or consent or by the debtor’s direction – because only a part payment made by the debtor or the debtor’s agent may give rise to a fair and reasonable inference that the debtor intended to renew the promise of payment.
Jacksonville American Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940).


A part payment by one or two or more co-obligors does not, in the absence or a showing of express or implied authority, remove the bar of the statute of limitations as against the others.
Coker v. Phillips, 89 Fla. 283, 103 So. 612 (1925).

Additionally, in the absence of a showing that such payment was authorized, a payment by one spouse will not remove the bar of the statute of limitations as to a debt owed by the other.
Gaulden v. Warnock, 79 Fla. 669, 84 So. 603 (1920).


§105 What payment may consist of
 
It is not necessary that a part payment be made in money to stop or renew the running of the statute of limitations. (Am. Jur. 2d Limitation of Actions § 355) The part payment may be on account or interest or principal on an obligation or liability founded on a written instrument. (§95.051(1)(f), Fla. Stat.)

However, a payment, not made as a part payment, but made as a payment in full pursuant to a settlement or compromise agreement, will not act to start the period or limitation running.
McCloskey & Co. v. Eckart, 164 F.2d 257 (C.C.A. 5th Cir. 1947);
Samuel Bingham’s Sons Mfg. Co. v. Metropolis Pub. Co., 119 Fla. 333, 161 So. 426 (1935);
Amelco Inv. Corp. v. Bryant Elec. Co., 487 So.2d 386 (Fla. 1st DCA 1986).


I'm still searching...


Would this apply to accounts not founded on a written instrument (especially Gaulden)?  Would it only apply if the account was already past due, or would it apply if a payment was made on an account that was current?

thanks for any feedback you can provide...
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