I have been sued by a junk debt collector for an old (beyond the statute of limitations I believe) credit card debt.

I submitted an answer denying everything regarding the debt; Jurisdiction , Lack of specific information and also raising several Affirmative Defenses; "Statute of Limitations", "Laches", and "Unclean Hands" among them

If this debt is mine it has changed hands 3 or 4 times since the last activity on it (June 2003). The statute of limitations in my state for "open ended accounts" is three years. The suit was fined in August of 2008, over 5 years since then. This junk debt collector states in the complaint that they purchased the debt in August 2006. They have added about $6,000 in interest and attorney's fees to the original balance of apprx $1,500.

I have a pre-trial conference set for April 10th.

Can someone tell me how the conference might proceed?

Do they need to produce the original signed contract or can they get by with copies?

Can I ask the judge to dismiss the case at the pre-trial based on some or any of the defenses I raised?

What state are you in?

You said the last activity on the account was 2003; are you absolutely positive that you haven't made any payments since them? A lot of people think that the SOL is from the date they last used the card, which isn't true. If you send them a penny, that will renew the SOL.

What state are you in?

You said the last activity on the account was 2003; are you absolutely positive that you haven't made any payments since them? A lot of people think that the SOL is from the date they last used the card, which isn't true. If you send them a penny, that will renew the SOL.

Last activity was DEFINITELY June of 2003. That was the last time I sent them ANY money. I also had not used the card since even before then. Absolutely sure.

They will try everything in the book to get you to offer to pay something, anything,DO NOT DO IT. Any offer of any sort of payment, even one cent on the dollar, will restart the SOL and then they got you by the tail. You are judgement proof if everything you told us is accurate, they will not be able to foce you to pay anything. They likely bought the debt for pennies on the dollar, tey buy hundreds of these debts and only need one of you to blink.

They will try everything in the book to get you to offer to pay something, anything,DO NOT DO IT. Any offer of any sort of payment, even one cent on the dollar, will restart the SOL and then they got you by the tail. You are judgement proof if everything you told us is accurate, they will not be able to foce you to pay anything. They likely bought the debt for pennies on the dollar, tey buy hundreds of these debts and only need one of you to blink.

Any experience with a pre-trial conference and/or a "disclosure statement" that has to be filed with the Court within 40 days of my answer (or at the pre-trial.)

Statute depends on State - what State? And it's when the papers were FILED with the Court, not when you were served, when the hearing is scheduled, that takes something outside the Statute.

Pre-trial conferences are very casual. You both tell your side of the story and present whatever proof you have. Assuming this is Small Claims Court the "disclosure statement" is also very casual. What specifically is the Court looking for you to answer?

I am curious about your unclean hands defense - what is that about?

Statute depends on State - what State? And it's when the papers were FILED with the Court, not when you were served, when the hearing is scheduled, that takes something outside the Statute.

Pre-trial conferences are very casual. You both tell your side of the story and present whatever proof you have. Assuming this is Small Claims Court the "disclosure statement" is also very casual. What specifically is the Court looking for you to answer?

I am curious about your unclean hands defense - what is that about?

Stae is Arizona. Suit was filed in August of 2008. Last activity on account was no later than June 2003

The Disclosure statement wants specific facts/legal theory upon which I am basing my affirmative defenses. Since I have no specific information to respond to there is not much for me to say. The other side will have to produce much more than I.

Unclean hands, in this case, means that they know or should know that the debt is not legally valid, they waited and excessive amount of time to press their claim (2 years) and that they have basically acted unethically.

Unclean hands, in this case, means that they know or should know that the debt is not legally valid, they waited and excessive amount of time to press their claim (2 years) and that they have basically acted unethically.

Where do you read that waiting 2 years to present a claim is unconscionable and/or unethical?

As I said - it's not the date you were served, it's the date the papers were filed with the Court. A two month interim period is NOT unusual. When were the papers filed?

If it was after the Statute ran and you can prove it, then it's all over for the creditor. Of course, they can and probably will try to collect from you forever and will keep this on your credit report but they will lose the ability to sue.

Excuse me but you may be under the belief that the SOL makes an old debt invalid, not true. They just can't get a judgement on you, the debt remains valid just unenforceable.

Where do you read that waiting 2 years to present a claim is unconscionable and/or unethical?

As I said - it's not the date you were served, it's the date the papers were filed with the Court. A two month interim period is NOT unusual. When were the papers filed?

If it was after the Statute ran and you can prove it, then it's all over for the creditor. Of course, they can and probably will try to collect from you forever and will keep this on your credit report but they will lose the ability to sue.

The papers were filed in August of 2008, over five full years after any transaction on the account. What are you talking about a two month interim period?

Excuse me but you may be under the belief that the SOL makes an old debt invalid, not true. They just can't get a judgement on you, the debt remains valid just unenforceable.

Unenforceable,. invalid... sameo sameo to me.

Unenforceable,...invalid...sameo sameo to me.



It's not the "same-o" legally. The creditor can follow you to the ends of the Earth, destroying your credit rating and making you crazy.

Unenforceable,...invalid...sameo sameo to me.


That is VERY dangerous thinking. If you go into court with that attitude the judge will take a dim view of it. If the plaintiff can prove that this is your debt, then you have a moral and ethical obligation to pay it. If, in fact, the SOL has expired the case may be dismissed, but they can still dun you're the balance.

Now these junk debt people are not stupid. They may have some reason for thinking the suit won't be dismissed on an SOL motion. But it could be they were just trying to intimidate you into acknowledging the debt and restarting the SOL.

That is VERY dangerous thinking. If you go into court with that attitude the judge will take a dim view of it. If the plaintiff can prove that this is your debt, then you have a moral and ethical obligation to pay it. If, in fact, the SOL has expired the case may be dismissed, but they can still dun your the balance.

Now these junk debt people are not stupid. They may have some reason for thinking the suit won't be dismissed on an SOL motion. But it could be they were just trying to intimidate you into acknowledging the debt and restarting the SOL.

Now, explain what you mean when you say "they can still dun your balance".

I wouldn't go into Court with anything except the proper, respectful, courteous attitude.

Don't they have to prove it is my debt first of all? And then don't they have to prove that it is still legally valid (not beyond the SOL)?

I do not believe that I have to acknowledge anything regarding the debt, am I correct in that assumption? Isn't the entire burden of proof on the plaintiff?

The dictionary will give you the definition of "dun". It simply means to ask you to pay your debt.

Yes, they will have to prove the validity of the debt. If they can't you can ask for a dismissal.

According to this link, I would assume this debt falls under "contracts":
Arizona Statutes of Limitations (http://www.statuteoflimitations.net/arizona_statute_of_limitations.htm)
Which means that they filed with 5 years; SOL in AZ is 6 years. They can legally sue you for this, and they will win.

If I were you, I'd start negotiating right now. If they are awarded the full amount, they're not going to accept a settlement.

EDIT: Here's a few more links which back up my first one:
http://www.azlawhelp.org/viewquestions.cfm?mc=4&sc=29&qid=1177
http://www.fair-debt-collection.com/SOL-by-State.html#3

You seem to think you are untouchable; you're not. This debt is very much within SOL and you'd better get your ducks in a row.

According to this link, I would assume this debt falls under "contracts":
Arizona Statutes of Limitations (http://www.statuteoflimitations.net/arizona_statute_of_limitations.htm)
Which means that they filed with 5 years; SOL in AZ is 6 years. They can legally sue you for this, and they will win.



Hmm not sure where you got the idea that it was past SOL. The above indicates its is within the SOL.

This is part of the original post:

The statute of limitations in my state for "open ended accounts" is three years.

This is from the 2nd link I provided:

... if there was no written contract with the credit card issuer, a three year statute of limitations may apply. However, if there was a written contract in Arizona with the credit card issuer, the statute of limitations may be six years from the last transaction.
I think that's what the OP's assumption of SOL is based on.

According to this link, I would assume this debt falls under "contracts":
Arizona Statutes of Limitations (http://www.statuteoflimitations.net/arizona_statute_of_limitations.htm)
Which means that they filed with 5 years; SOL in AZ is 6 years. They can legally sue you for this, and they will win.

If I were you, I'd start negotiating right now. If they are awarded the full amount, they're not going to accept a settlement.

EDIT: Here's a few more links which back up my first one:
AZ Law Help (http://www.azlawhelp.org/viewquestions.cfm?mc=4&sc=29&qid=1177)
Debt collection statute of limitations listed by state (http://www.fair-debt-collection.com/SOL-by-State.html#3)

You seem to think you are untouchable; you're not. This debt is very much within SOL and you'd better get your ducks in a row.

Well, I do not believe I am untouchable. According to the info in the link you provided it seems to indicate that my account would be classified as an "open account" (where there is the expectation of ongoing transactions) and that the SOL would be three years from the date of the last transaction. I know of no credit card that is issued without some kind of signature required. There are a lot of "mays" in the section of the law that seems relevant. My account seems to fit under the definition of "Open Account" Here is what seems to me to be the relevant section of the law:

"The statute of limitations that applies depends upon what type of account the credit card holder has with the credit card issuer. If it is an open account (where there is the expectation of ongoing transactions), the statute of limitations may be three years from the last transaction with the credit card issuer. (A.R.S. § 12-543). Likewise, if there was no written contract with the credit card issuer, a three year statute of limitations may apply. However, if there was a written contract in Arizona with the credit card issuer, the statute of limitations may be six years from the last transaction. (A.R.S. § 12-548)."


I also am on the brink of Chap 7 but did not want to have to play that card. If I have to I will.

Also, I would think they would have to produce certain documents for this debt that has changed hands many times.

How can they prove it is even mine and then, if they can do that, how can they prove it is still within the SOL?

I do not underestimate what I am up against and I am not feeling very comfortable about it. I simply do not know enough. I have had some assistance from a non-practicing law school grad who has fought and is fighting battles in Court. I may look into hiring some kind of legal "coach" as I really do not have the money for a full fledged lawyer fight in Court.

Certainly willing to listen to what you have to say.

You just reiterated my point with this statement:

I know of no credit card that is issued without some kind of signature required.
If you signed a contract with the original creditor, then you do not fall under "open account":

...if there was a written contract in Arizona with the credit card issuer, the statute of limitations may be six years from the last transaction.

If you really want to, you can request verification of debt. Just don't be shocked if they come up with it.

I don't understand how you're confused about them proving it to be your debt or that it's within SOL. If they have your signature and SSN on file, that proves it's your debt. If they have proof of last payment being made in 2003, that's proof it's within SOL. It's really not that complicated.

You just reiterated my point with this statement:

If you signed a contract with the original creditor, then you do not fall under "open account":


If you really want to, you can request verification of debt. Just don't be shocked if they come up with it.

I don't understand how you're confused about them proving it to be your debt or that it's within SOL. If they have your signature and SSN on file, that proves it's your debt. If they have proof of last payment being made in 2003, that's proof it's within SOL. It's really not that complicated.

Can you tell me which credit card accounts are allowed to open without a signature? A signature on a credit card, open ended account, one in which a series of ongoing transactions is expected, does not make something a written account.

Buying a car through installment payments, signing a promissary note are examples of written contracts. A credit card is an open ended account by it's very definition.

What debts, that are open ended, would come under the 3 year SOL then? Can you name any?

You're arguing with yourself. Unfortunately for you, this account is not - nor willl it ever be - "open ended." No matter what you try to argue, it's not going to change the facts.

Besides, arguing with me isn't going to get you anywhere. I'm just trying to help you save face because a judge is going to laugh you out of court if you try to defend yourself by saying you signed a contract but it should still be considered an open-ended account. Not going to fly.

You're arguing with yourself. Unfortunately for you, this account is not - nor willl it ever be - "open ended." No matter what you try to argue, it's not going to change the facts.

Besides, arguing with me isn't going to get you anywhere. I'm just trying to help you save face because a judge is going to laugh you out of court if you try to defend yourself by saying you signed a contract but it should still be considered an open-ended account. Not going to fly.

Even the law you have sited says "may" in a number of places. As in the 3 year or 6 year SOL MAY apply. Now how is this supposed to be interpreted? Why do you interpret it to mean the 6 year SOL is in effect?

Also, what is an "open ended account"? (one in which a series of ongoing transactions is expected) Please be specific. Is there such a thing as an "open ended account? What is this anima l"open ended account? What is this anima l"?

And what proof might they have... a "Notice of Default"? The original contract? A copy of the original contract. Documents detailing the last trransaction on the account? WHAT? What? What?

Even the law you have sited says "may" in a number of places. As in the 3 year or 6 year SOL MAY apply. Now how is this supposed to be interpreted? Why do you interpret it to mean the 6 year SOL is in effect?

Also, what is an "open ended account"?, (one in which a series of ongoing transactions is expected) Please be specific. Is there such a thing as an "open ended account? What is this anima l"open ended account"?

And what proof might they have...a "Notice of Default"? The original contract? A copy of the original contract. Documents detailing the last trransaction on the account? WHAT?! What? what?!

How are we supposed to know what proof they have? That's something you have to find out.

As for the credit card. You signed a contract, that negates it from being an open ended account.

You are assuming that the SOL is 3 years, but there is evidence that it is in fact 6 years, which would make you responsible for the debt.

Why aren't you paying this? You spent the money, received the goods, and now you're trying to get something for nothing?

I guess you'll just have to go to court and hope for the best, but it looks like you aren't going to win this one.

Can someone other than the I've been dealing with on here give me an example of an "open ended account"?

Can a person sign a document and have an "open ended account"?

Nope, not a collection industry employee, just someone who actually pays for her purchases and doesn't try to screw someone out of their money.

The bottom line, you asked for advice, you got advice, you don't like the advice because it isn't going your way. That doesn't mean that the advice you got is wrong, even if you don't like it.

Scott, Judy, Excon and This are all legal experts, they know the law, they told you what to expect, you can either take that information and run with it, or you can continue to argue with them and not get any further answers to your question.

We all do this in our spare time because we like to help people, believe me, we all make a big difference on this site. We don't get paid to do this, so why should we put up with rudeness and arguments?

If I were you I'd hire a lawyer, you obviously don't believe anything the legal experts here are telling you.

Good luck.

Open-End Credit Accounts - Financial Web (http://www.finweb.com/banking-credit/open-end-credit-accounts.html)

I decided to satisfy myself about the argument here between open ended and contract. So I did some research. I doing so I found this:
Statute of Limitations, Laches in Arizona (http://www.expertlaw.com/forums/showthread.php?t=58892)

Seems this has been going on for several months now. But I was most interested in your report of what YOU found in case law in post #8. I quote: "Plea of staute of limitations is not favored in the law, and where the question of which statute to apply is before the court, the longer period of time must be given effect."

That seems pretty clear case law to me. Arizona courts apparently don't like to reject claims based on expired SOL. So they will apply the longer period when there is a conflict. I suspect that the plaintiff is aware of this and banking on it. You can continue to try and make your argument that the 3 year SOL should apply and good luck to you with that.

As to Altenweg's question. I can see that you do not want to pay this bill if its not yours. But, from what you wrote, you seem to believe it is.

A debt is a matter of honor. A debt is a promise to pay. So if we question why you don't pay YOUR debt, it's a valid question. It doesn't make us collectors, simply honest people who honor their word.

I decided to satisfy myself about the argument here between open ended and contract. So I did some research. I doing so I found this:
Statute of Limitations, Laches in Arizona (http://www.expertlaw.com/forums/showthread.php?t=58892)

Seems this has been going on for several months now. But I was most interested in your report of what YOU found in case law in post #8. I quote: "Plea of staute of limitations is not favored in the law, and where the question of which statute to apply is before the court, the longer period of time must be given effect."

That seems pretty clear case law to me. Arizona courts apparently don't like to reject claims based on expired SOL. So they will apply the longer period when there is a conflict. I suspect that the plaintiff is aware of this and banking on it. You can continue to try and make your argument that the 3 year SOL should apply and good luck to you with that.

As to Altenweg's question. I can see that you do not want to pay this bill if its not yours. But, from what you wrote, you seem to believe it is.

A debt is a matter of honor. A debt is a promise to pay. So if we question why you don't pay YOUR debt, its a valid question. It doesn't make us collectors, simply honest people who honor their word.

{personal attacks removed}

I came here to ask questions about the law. It isn't your place to question my or anyone else's "honor" or "honesty". Not here on this board or anywhere else for that matter. {personal attacks removed}

Now, having said that, I appreciate the cold recitation of what you have found regarding AZ law. That's what I wanted to know. Thank you.

If I had to guess I would guess you are or have been a lawyer or a collection industry insider.

{personal attacks removed}

I was going to just remove your last post, but I decided to answer it. I am neither a lawyer nor a collection industry insider. I did work as a collector many years ago and didn't like it, so I left. If you look at my posts in these forums, you will see that I have helped and advised many people on how to deal with similar situations. I have no love for the 3rd party debt buyers.

However, I do have honor, unlike you apparently. Just because you don't seem to care about honoring your word, doesn't mean other people don't. And you obviously don't understand how sites like this work. Once you post something, you open yourself for comment. Most of the comments you have gotten have been valid based on what you have posted.

Having said all of that, you have been warned about the rules of this site. So your account is going to be suspended to give you time to cool off. When or if you return any repeats of violation of the rules will result in a permanent ban.

One final point. The info I found about AZ case law was found by YOU. Or at least someone using the same name. Or don't you remember?

Don't you just love it when people ask you for an answer, but all they're really looking for is an excuse to get themselves out of trouble?

I say close the thread. The OP has gotten the correct answer a few times over already; leaving this open is only going to result in more arguing.

Keep out of the discussion unless it is to contribute something of substance. Understand?

Hi there, jokyfo. Apparently you don't understand the phrase "open forum." That means that anyone can answer at any time.

Also, I'd like to point out that I'm the one who answered your question. Not sure how much more "substance" you're looking for. Just because you refuse to accept it as the correct answer doesn't mean that there's another option; it just means you're stubborn.

You're not looking for the right answer, you're looking for an easy way to get yourself out of the mess you put yourself into.

Please do not dictate who does and does NOT answer your questions - if you don't want legal advice but want someone to agree that you are right and the creditor is wrong, then post on a discussion board.

I think this should be combined with the other thread.

Sorry, I guess this is the answer s/he wanted:

No way, screw them! They can't get you! File for bankruptcy and then you don't have to pay for anything! Looks like you got away with it!

There, does that possess enough "substance" for you? Hope so, because it's the most inaccurate legal advice I have posted ever.

Even the law you have sited says "may" in a number of places. As in the 3 year or 6 year SOL MAY apply. Now how is this supposed to be interpreted? Why do you interpret it to mean the 6 year SOL is in effect?

Also, what is an "open ended account"?, (one in which a series of ongoing transactions is expected) Please be specific. Is there such a thing as an "open ended account? What is this anima l"open ended account"?

And what proof might they have...a "Notice of Default"? The original contract? A copy of the original contract. Documents detailing the last trransaction on the account? WHAT?! What? what?!



I don't know what proof the creditor has. I also don't know what's in your refrigerator.

Same thing - guesswork.

If you are so sure that the creditor cannot collect from you, why are you asking the question? Go to Court and argue what you think you know and then come back and prove all of us wrong - it's as simple as that.

Most courts tend to go with the lender when it is a issue of interpertation of the law. This is not true nation wide, California being a good exception.

The credit card if gotten over the interent uses a "electronic" signiture or basically your initial that you agree to the terms, and in other cases, it is the receipt and then the use of the card that is the obigational contract.

And while claiming correct defense is always the best thing to do, claiming too many, some of which you may know not to be true, can backfire in court as merely an attempt to not address the issue.

Showing up in court, asking before court for a copy of the original contract ( often there is none) can either delay. But since most of the times they don't expect the person to show up in court, just showing up, often puts them at a disadvantage since they never made a case but expected a default judgement

Most courts tend to go with the lender when it is a issue of interpertation of the law. This is not true nation wide, California being a good exception.

The credit card if gotten over the interent uses a "electronic" signiture or basicly your initial that you agree to the terms, and in other cases, it is the receipt and then the use of the card that is the obigational contract.

And while claiming correct defense is always the best thing to do, claiming too many, some of which you may know not to be true, can backfire in court as merely an attempt to not address the issue.

showing up in court, asking before court for a copy of the orginal contract ( often there is none) can either delay. But since most of the times they don't expect the person to show up in court, just showing up, often puts them at a disadvantage since they never made a case but expected a default judgement

Thank you.

Jokyfo - here's the rule on the site. If you don't have the - what's the proper phrase here? Internal fortitude? External fortitude? - to post "it" on the thread, don't post it at all. How old are you? You PM'd me on the level of 6th grade.

I'm a child molester because I don't agree with you?

Your insulting PM's show more what you are than anything you've posted here.

And stop dictating who answers your posts and what they say.

Any time you want to list your legal education, experience and training against mine - or that of anyone else on the Board - let me know. We don't have the problems you have, we pay our bills, so I guess maybe "we" do know something after all.

In the meantime - moderators! Time to close this and/or check this person out.

{personal attacks removed}

I came here to ask questions about the law. It isn't your place to question my or anyone else's "honor" or "honesty". Not here on this board or anywhere else for that matter. {personal attacks removed}{personal attacks removed}



No one is questioning you - the overwhelming decision is that you have no honor or honesty. It's as simple as that.

Now that I've been accused of being a child molester (based on this thread) I also question your sanity.

I will also add that you are wrong about Scott's profession and he isn't facing the legal problems you are facing so maybe he, in fact, DOES know something.