Tolling and statute of limitations case law interpretation

[Clay Neely]

Jurisdiction

South Dakota

Can somebody translate this into lamens terms for me? My interepretation is that a third party making a payment on behalf of the debtor does not reset the statute of limitations. Thanks

"Where payees of a note were authorized to collect certain accounts due makers and apply the proceeds to payment of note, the indorsement of the accounts collected as payments on the note did not constitute payments made by the makers and did not interrupt the running of statute of limitations. SDC 33.0213, 33.0232."

 

[adjusterjack]

Same answer I gave you on the other site.

You're interpreting it out of context so you are probably getting it wrong. Especially since googling those statute numbers brings up cases from the 1940s.

Explain what is happening to you that gives rise to the question.

And provide a link to wherever you got that paragraph from so we can see the whole thing.

 

[Tax Counsel]

You're interpreting it out of context so you are probably getting it wrong. Especially since googling those statute numbers brings up cases from the 1940s.

And as I explained in more detail on that other site, the OP did in fact get it right.

What he quoted from was the West headnote for the case. The actual holding of the court is easier to understand:

It appears from the provisions of SDC 33.0213 that an acknowledgment or promise to be effectual to interrupt the running of the statute of limitations must be in writing and signed by the party to be charged, but this requirement does not alter or take away the effect of a part payment. It is the settled law of this state that a part payment to be effectual to interrupt the statute must have been voluntary and must have been made and accepted under circumstances consistent with an intent to pay the balance.​

Nilsson v. Kielman, 70 S.D. 390, 392, 17 N.W.2d 918, 919 (1945). While the case is old, it has never been overturned and the statute the court is interpreting appears to be pretty much the same today as it was then. The current statute, while reading the same, is now found at South SDC § 15-2-29.

So it appears the case is likely still good law today. Which means that for the SOL on debt to be renewed the debtor himself must either acknowledge the debt in writing or must be the one to make a payment (or direct the payment to be made) on the account. The idea is that the debtor must be the one to take some action to acknowledge the debt, not some third party.

 

[adjusterjack]

The idea is that the debtor must be the one to take some action to acknowledge the debt, not some third party.

Then it would be important to find out what prompted this third party to make the payment on behalf of the debtor.

 

[army judge]

Then it would be important to find out what prompted this third party to make the payment on behalf of the debtor.

The third party is often associated with the debt collector.

In many cases the debt collector makes a nominal payment in the name of the debtor.

You're correct, if the OP knows who made the alleged payment, that could be revealing.

 

[Zigner]

The OP really hasn't asked us for anything except for the interpretation of a snippet of the law.

 

[army judge]

The OP really hasn't asked us for anything except for the interpretation of a snippet of the law.

You are correct, sir.

 

[Tax Counsel]

Then it would be important to find out what prompted this third party to make the payment on behalf of the debtor.

Yes, it would. We don't know why the OP asked the question and no facts were provided so speculation isn't helpful here. All I could do is provide the case involved and what the holding of the case was.