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First Hawaiian Bank v. Zukerkorn - 2 Haw. App. 383, 633 P.2d 550 (1981)


A new promise by the debtor to pay his debt, whether then barred by the applicable statute of limitations or not, binds the debtor for a new limitations period. The promise may be express or implied. If it is express, it may be unconditional or conditional, but if conditional, it is not effective until the condition is performed. The promise may be implied from an express acknowledgment of the debt or from part payment thereof. However, an express acknowledgment of the debt or part payment thereof is only prima facie evidence of a new promise which may be rebutted by other evidence and by the circumstances under which it is made.


Zukerkorn executed in favor of the bank a $ 6,394.21 demand note dated November 22, 1965, and a $ 2,500.00 two-year note dated September 23, 1966. He made no payments on either note. On August 6, 1973, Zukerkorn obtained an automobile purchase loan from the bank, which he paid. On or about December 11, 1975, Zukerkorn applied to the bank for a credit card. He admitted that the bank told him that he owed "a small amount of money on an old account"; that issuance of the card was conditioned on his agreement to pay $ 100.00 per month on the old account; that he agreed to the condition; and that he received a credit card. The bank eventually sued Zukerkorn for the unpaid balances of the November 22, 1965, note, the September 23, 1966, note, and on the balance due on the credit card account. The lower court entered summary judgment in favor of the bank on all three of its claims. Zukerkorn appealed.


Whether, as a matter of law, Zukerkorn revived two stale debts which otherwise were uncollectible because the applicable period of limitations had run.




The court held that Zukerkorn raised genuine issues of material fact with respect to his obligation to pay the notes of November 22, 1965, and September 23, 1966, and that the lower court erred in entering summary judgment with respect to them. Zukerkorn denied that he acknowledged the existence of the two stale debts or that he agreed to pay them or that he paid on them. Thus, the court below could not imply a promise from the mere fact of acknowledgment or part payment as an inference of law. It must be left to the trier of fact. The court, however, affirmed summary judgment with regard to the $ 4,594.60 owed on the credit card account. The bank's affidavits concerning this account were sufficient and they were not contradicted by Zukerkorn.

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