On Sep 26, 7:22 am, Mike <prabb...@shamrocksgf.com> wrote:
> Mike Jacobs wrote:
> > if you have already allowed the earlier statute to expire before
> > you found out about this distinction, you have nothing to lose by
> > filing suit anyway, and arguing for the interpretation that helps
> > you. Again, win or lose, the outcome of this discussion would have
> > no practical influence on _your_ behavior.
>
> Well, I believe he WOULD lose the filing fees and possibly some other
> expenses if he files and the SOL has already passed. Now that amount
> might be very small (if he's filing in small-claims court, he'd be out
> maybe $100 or so, max) but it's still something.
This is fascinating. I'm looking at the situation the way IMO any lawyer representing a client would, and it seems you're looking at it from the client's (or pro se litigant's) POV. What a difference.
First, let's be clear that I'm not advocating OP file suit in any court on a claim he knows is invalid. That would be improper.
But we're talking about a situation where there may be a basis to argue for an interpretation of the law that allows OP's written invoice to meet the legal requirement for a written "contract" (assuming that's what the CA law says and he isn't inaccurately paraphrasing in a way that is misleading us MLM respondents -- but all we have to go in is the scenario he provides). In such case, where the application of the law to the facts could go either way, my point as a lawyer representing a client would be, I dam well better file that claim ASAP after I find out about the 2 different SOLs, because any delay could possibly mean it is _my_ malpractice insurance that will wind up paying for the client's loss, rather than the defendant debtor. If in fact it turns out that the suit was timely, great. If it turns out it wasn't timely, then at least I did everything possible, and the reason it got booted out of court is that the client didn't bring me the case to file until it was already too late to file under the appropriate SOL as finally determined by the court. We're talking about the lawyer investing the small claims filing fee (which I'm guessing is a lot _less_ than $100; that's why it's "small claims", otherwise anybody with a debt that size would be effectively barred from getting justice. Here in MD the small claims filing fee is $5) which, even if he never gets it back from the client, surely saves an awfully big headache down the road when the disgruntled client says (perhaps rightfully) "it's _your_ fault we lost this one because you blew the SOL."
But even if it's $100, and even if OP intends to do this pro se, ISTM that investing that $100 in a filing fee so he can make his legal arguments and (possibly) salvage a claim worth maybe thousands, instead of just giving up and walking away from that claim, is usually a worthwhile risk that may pay off. If not, so long as he had a good faith argument that the longer SOL should apply, at least he tried.
--
This posting is for discussion purposes, not professional advice.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
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