It’s the Law: Statute of limitations may keep you from collecting old debts

Q: I loaned a friend of mine some money a long time ago. He never seemed to have any money, so I did not try to collect the debt. Last week, he won the lottery and I want my money. He claims the statute of limitations prevents me from collecting. What does that mean?

A: The statute of limitations is inherited from the English common law. It is based on public policy of discouraging stale claims. It is also based on the belief that a claim should be pursued with reasonable dispatch, while memories are good and evidence is available.

Placing limitations on time for bringing suit is thought to be in the best interest of commerce. It also protects defendants from surprise claims.

Statutes incorporate various limitations periods for different causes of action. In addition to statutory limitations, there are also equitable limitations that can bar claims even where the statutes would allow them.

Modern legislatures agree that forcing someone to defend against old claims would place that person at a serious disadvantage and reward a person who has either intentionally waited or negligently failed to pursue a claim.

Statutes of limitations do not automatically bar claims. They must be raised as a defense by the person being sued. In some cases, application of the limitations period can be avoided.

For example, if someone promises to pay a debt if suit is not filed, that person may be barred from raising the statute of limitations as a defense on the original debt. Either the new promise to pay restarts the statute or equity will prohibit the debtor from misleading the creditor into missing the deadline and then using that as a shield.

Although there are a number of statutory limitations periods, the primary statute of limitations is Chapter 95, Florida Statutes. In addition to stating the limitations periods for various types of claims, that Chapter also lists circumstances under which the limitations period is tolled, which means it is placed on “hold.”

The limitations period can be tolled when (1) the defendant is absent from Florida; (2) the defendant uses a false name that is unknown to the plaintiff, so that the plaintiff can not serve the defendant with legal papers; (3) defendant hides so that he or she can not be sued; (4) adjudicated incapacity of the potential plaintiff prior to expiration of the statute of limitations time frame; (5) partial payment.

Some of the limitations periods are quite short. The limitations period is one year for action for specific performance of a contract or an action to enforce an equitable lien related to improvement of real property.

The statute of limitations is two years for malpractice, claims for unpaid wages, overtime or wrongful death.

A four year statute of limitations applies to most claims, including (a) general negligence; (b) actions based on design, planning or construction of improvements to real property (although the beginning of the time period is delayed until discovery for latent defects); (c) action for trespass to real property; (d) action for taking, detaining, or injuring personal property; (e) action to recover wrongfully held personal property; (f) claims for fraud; (g) claims to enforce oral contracts; (h) claims not specifically listed in any other statute of limitations.

The limitations period is five years for mortgage foreclosures and claims based on written contracts.

A statute of limitations is a powerful defense. If it applies, the entire claim can be barred. This makes it critical to promptly pursue any cause of action. It is important that the facts and circumstances be properly analyzed to determine what claims can be brought and the time frame within which they might be barred. Missing the deadline by only one day can be fatal to the claim.

As with all legal matters, this is an area in which good legal advice is critical. You should retain an experienced attorney to discuss facts and circumstances of your particular case as soon as possible.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.

© 2008 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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