[Cheffie]

On 11/15 I got served with papers that the issuing bank has filed a law suit against me court date 2/26 in front of a Arbitration Panel, the debt is from 2003 so SOL is roled out. This debt is from a business I tried to start but went nowhere, the balance was $9720.00 when charged off on 8/04 they are sueing for $16300.00 I went to a attorney to see my options and since I have another debt in collections worth $4900.00 they pushed for filing chapter 13 at a cost of $2700.00 $1300.00 up front or if I wanted them to defend this suit $200.00 per hour and they considered pointless to do so. Being not able to pay $200.00 a hour here I am.

My question is should I use the FYI defend answer form that is "sticky" at the top of this form or should I got to the court house to ask for a form.

I am trying to settle out of court for the charged off amount of $9720.00 or a portion of it. What are my chances of this happening? The debt went through a couple of collection agents and continued to build interest.

Thanks

[Cheffie]

Hello again,

After doing research on this site as well as links given here I think that I have a chance to fight this and have it thrown out due to SOL, I am going to go to the library to look at the Pennsylvania law books, Pennsylvania Title 73, Chapter 42 (73 P.S. § 2270.1) to be sure that the SOL is 4 years, I was told by the lawyer I met with it was 6 years, when I told them I seen that it got changed to 4 years it did not go over very well with them. Some other law firm has it listed as being 6 years as well.
I am hoping for help here so I do not throw myself into the fire before the pot.

Thanks

[JudyKayTee]

Hello again,

After doing research on this site as well as links given here I think that I have a chance to fight this and have it thrown out due to SOL, I am going to go to the library to look at the Pennsylvania law books, Pennsylvania Title 73, Chapter 42 (73 P.S. § 2270.1) to be sure that the SOL is 4 years, I was told by the lawyer I met with it was 6 years, when I told them I seen that it got changed to 4 years it did not go over very well with them. some other law firm has it listed as being 6 years as well.
I am hoping for help here so I do not throw myself into the fire before the pot.

Thanks

I thought this was a 2003 debt - my understanding is that the Statute is 4 years (and this is 2007). It SOL can become complicated and extended if you made any payments.

The Arbitration Panel will know the Statute and throw it out if it is over the SOL - or you can protest.

[Cheffie]

I think I found the rule chapter 55 title 42

§ 5525. Four year limitation.
(a) General rule.--Except as provided for in subsection (b),
the following actions and proceedings must be commenced within
four years:
(1) An action upon a contract, under seal or otherwise,
for the sale, construction or furnishing of tangible personal
property or fixtures.
(2) Any action subject to 13 Pa.C.S. § 2725 (relating to
statute of limitations in contracts for sale).
(3) An action upon an express contract not founded upon
an instrument in writing.
(4) An action upon a contract implied in law, except an
action subject to another limitation specified in this
subchapter.
(5) An action upon a judgment or decree of any court of
the United States or of any state.
(6) An action upon any official bond of a public
official, officer or employee.
(7) An action upon a negotiable or nonnegotiable bond,
note or other similar instrument in writing. Where such an
instrument is payable upon demand, the time within which an
action on it must be commenced shall be computed from the
later of either demand or any payment of principal of or
interest on the instrument.
(8) An action upon a contract, obligation or liability
founded upon a writing not specified in paragraph (7), under
seal or otherwise, except an action subject to another
limitation specified in this subchapter.
(b) Special provisions.--An action subject to section 8315
(relating to damages in actions for identity theft) must be
commenced within four years of the date of the offense or four
years from the date of the discovery of the identity theft by
the plaintiff.
(Oct. 5, 1980, P.L.693, No.142, eff. 60 days; Dec. 20, 1982,
P.L.1409, No.326, eff. 60 days; June 19, 2002, P.L.430, No.62,
eff. 60 days)

Please correct me if I'm wrong, I think that I will need to wait until I demand discovery of the proof that they have before I file motion to dismiss due to SOL.

[Cheffie]

Should I use the FYI defend answer form that is "sticky" at the top of this form and change the names? Also, do I need to answer to the counts that are listed on the complaint?

[ScottGem]

First, if you want to settle for that amount you will probably need to come up with a lump sum. I doubt if they willsettle for that amount on a payment plan. Second, the fact that it was charged off in 8/04 doesn't bide well for an SOL defense.

Basically you need to inform the court that you will be defending the suit and will attend the hearing. The form you use generally doesn't matter. The next step is requesting documentation.

[Cheffie]

First, if you want to settle for that amount you will probably need to come up with a lump sum. I doubt if they willsettle for that amount on a payment plan. Second, the fact that it was charged off in 8/04 doesn't bide well for an SOL defense.

Basically you need to inform the court that you will be defending the suit and will attend the hearing. The form you use generally doesn't matter. The next step is requesting documentation.

O.K. So this may do?
------------------------------------------------------------------------------------------
COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

plaintiff Bank

Vs.

my name

CASE # **-***-****


NOTICE OF INTEND TO DEFEND


I, Xxxx Xxxxx, hereby give Notice of Intent to defend the above titled case, and

Demand strict proof of the alleged claim.


REQUEST FOR JUDICIAL NOTICE


Defendants who are unschooled in the law and ask that the court take

Judicial Notice of the enunciation of principles as stated in "Haines v. Kerner,

404 U.S . 519," wherein the court has directed that those who are

unschooled in law making pleadings and/or complaints shall have the court

look to the substance of the pleadings rather than the form, and also hereby

makes the attached memorandum, including the related documents attached

herewith, in the above-referenced case. Furthermore, Defendant's hereby

requests the judge notify them of any sua sponte, rights or remedies they

may overlook.



-----------------------------
Defendant

__________________________________________________ __________________

Yes ScottGem, I figured that they are less likely to go for a payment plan without a lump sum up front.
If they want to settle for the charge off amount I can do it anything greater I can not

[Cheffie]

Is it wise to open a channel of settlement in the Notice to Defend?

[ScottGem]

If you offer that as a lump sum they may go for it.

[Cheffie]

Should I call them tomorrow morning, and ask them what they would accept as a settlement before I go for the next step of defending the claim. Which I really do not have a defense. Other than what the total amount they want.

Or should I file the NTD and see what type of hand they are holding?

[ScottGem]

No, file the intent to defend. Send them a copy with a cover saying that if they can document the debt you would be willing to talk settlement.

[Cheffie]

O.K. Going to file the Intent to defend,

I have 1 more question about how to answer.
It is written on the summons

"YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within TWENTY (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you."

Do I need to state my defense with my intent to defend? If I do, can I state that "I can not admit nor deny the counts set forth". Other than who the filing party is and my name and address.

[ScottGem]

Yes you need to state at least your objections which would be that you are unsure if the debt is valid.

[Cheffie]

Yes you need to state at least your objections which would be that you are unsure if the debt is valid.

So my opening defense can be "I can not admit nor deny the counts set forth due to the fact I am unsure if the debt is valid"?

[ScottGem]

That works

[Cheffie]

Should this be on a seprate paper or on the intent to defend form?

[Cheffie]

Also the atty. For the plaintiff called @ 8:45 last night and left a automated message on my answering machine. Should I call them back?

[ScottGem]

I would but just listen to what he says. Don't make any decisions

[Cheffie]

O.K. I'll see what they want.
Should the statement "I can not admit nor deny the counts set forth due to the fact I am unsure if the debt is valid"? Be included on the same sheet of paper as the intent to defend or should I create a separate form for this statement?

Thank you ScottGem you are being of such great help with this situation

[ScottGem]

You can include it.