FW: Can US Gov't have it both ways? The answer is yes.
Posted: Sun Dec 02, 2012 8:39 pm
It's sad, very sad, unless you happen to be a federal government lawyer:
I found the answer to my question I asked below, and the 9th Circuit
case law, Bresson, from 2000, is attached.
Yes, the government can use the state's fraudulent transfer as a sword,
and has a shield against the "statute of limitations" even if it is
contained as an element of the cause of action in the statute itself.
California Civil Code Section 3439 makes the 4 year limitation an
element of the cause of action.
However, the 9th Circuit says that's an impermissible work around as it
is essentially a SOL in disguise and the state was overreaching its
authority in making such a law.
It's good to be a king or a federal government. If they used the federal
statute they would be barred by the statute of limitations. Logic would
seem to defy you could use state law offensively and be able to
disregard its defenses.
Yet, there's no arguing with a 9th Circuit decision, stare decisis and
all.
Steven B. Lever
The post was migrated from Yahoo.