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MDConyers · Mar 11, 2008, 09:38 AM

Ok, I though I had this all figured out, and how I was going to handle it. Now I am not sure. Back in September of 07 I received a summons, and a complaint on account. I answered the complaint on account, and sent them a list of questions to validate this debt.

Then in Feb of 08, I got a Plaintiff's request for admissions, and plaintiff's request for documents. Which I answered each question with, I cannot deny or admit until documents proving validation of this debt are given to me. Also I could not send them any documents other than the summons. Again when I sent them back all of this paperwork, which I had filed at the court house, I sent them another letter requested validation of this debt.

Then in the mean time I received notice of when my court date is. 2 days away, and I am getting nervous.

I could not afford to get an attorney, so I am planning on going it alone with my number one defense is that they did not validate the debt, and my secondary defense being that the statute of limitations is gone on this debt. This account was charged off in 1999, and it is now 2008.

In summary. I have received no validation of this debt and this debt is 9 years old. I have done a ton of reading on this subject, both good and bad. Do I have any ground to stand on here, or am I just crazy??

Thanks for any and all responses.

MD

LadyB · Mar 11, 2008, 04:16 PM

I just won my case last week which was very similar.. it was in small claims though.

Your main defense should be the statute of limitations. You should immediately state the debt is time-barred when offered your chance to testify or ask questions, and it will be up to them to prove it is not (in my case they asserted a payment was made within the allowed time frame, however they had no document proving this claim.. because I hadn't made a payment). You should also challenge their standing by asking them to provide the purchase contract showing they own YOUR debt as well as the previously requested validation of the debt.

Check out Alabama Consumer Law Blog :: Published by Alabama Consumer Protection Lawyers Watts Law Group, P.C. & M. Stan Herring, P.C.

MDConyers · Mar 11, 2008, 04:45 PM

Thanks Lady B.

You said you won. Congrats. Was the case dismissed with prejudice?

I will take your advice on this, and use the SOL as my primary defense.

Thanks Again.

MD

LadyB · Mar 11, 2008, 08:55 PM

Originally Posted by MDConyers

thanks Lady B.

You said you won. Congrats. Was the case dismissed with prejudice?

He didn't dismiss it, he ruled in our favor. Not sure what the difference is but he actually said "I rule for the defendant. You're free to go"

I will take your advice on this, and use the SOL as my primary defense.

There is an excellent sticky thread about statute of limitations at the top of this forum https://www.askmehelpdesk.com/bankru...yi-105295.html

However, I just realized I don't know what state you're in. Have you verified the statute of limitations? Some are as long as 10 years so check before you use that defense.

MDConyers · Mar 12, 2008, 01:56 AM

I am in Georgia,

LadyB · Mar 12, 2008, 05:31 AM

What is the exact wording on the complaint? I was sued for "account stated" which has a longer statute in my state than open accounts, I had to challenge that as well.

I got the bulk of my information to use for my defense from Alabama Consumer Law Blog :: Published by Alabama Consumer Protection Lawyers Watts Law Group, P.C. & M. Stan Herring, P.C.

Also, they may have artificially re-aged the debt on your credit reports, or in your file for the suit. Do you have a recent credit report showing the date of last activity? Again, this was instrumental in my defense as the CA had reported a date of last activity on my credit reports as 2 years earlier than the date they asserted in court. The judge asked for documentation that it wasn't time-barred, due to their own disagreement with the figures, and they didn't have it.

MDConyers · Mar 12, 2008, 06:46 AM

I don't have the complaint in front of me at the moment. I will have to take a look at it.

I have new copies of my credit reports from all three agencies. It does not appear on any of them. I will have to see if I have an older credit report.

ScottGem · Mar 12, 2008, 07:55 AM

I have to disagree slightly with LadyB. How can you use an expired SOL as your primary defense if you are claiming you are not sure the debt is valid? That puts you in a Catch 22. By stating the SOL has expired you are acknowledging the debt and you don't want to do that.

You need to stick to your guns and state that you don't know if this is a valid debt or not since you have been given no verification. You can't claim SOL expiration unless they show you that there has been no activity.

But to answer your first question I think you have two very strong legs to stand on. The burden of proof is on them. They need to prove that the debt is valid, belongs to you and they have a right to collect on it.

LadyB · Mar 12, 2008, 08:16 AM

Originally Posted by ScottGem

I have to disagree slightly with LadyB. How can you use an expired SOL as your primary defense if you are claiming you are not sure the debt is valid? That puts you in a Catch 22. By stating the SOL has expired you are acknowledging the debt and you don't want to do that.

You need to stick to your guns and state that you don't know if this is a valid debt or not since you have been given no verification. You can't claim SOL expiration unless they show you that there has been no activity.

But to answer your first question I think you have two very strong legs to stand on. The burden of proof is on them. They need to prove that the debt is valid, belongs to you and they have a right to collect on it.

I went entirely by my old credit reports, as I had also been unable to get validation (from the original creditor in my case). You're right in that if he is claiming no knowledge of the debt itself, and doesn't have it on his credit report, then he has no basis for a SoL defense. However he could argue his validation request was to verify the amount and transactions.

For example, one can admit to having a credit card 9 years ago, but still dispute the amount, or dispute the status (ie they believe payments weren't posted or the account was settled and closed, or the account was paid in full), or believes it has unreasonable fees added to it, etc. Validation requests are to validate the amount of the debt, and how that amount was arrived at, as well as the debt itself.

I have another account on my credit reports showing as open and in collections. It was settled and closed years ago. I don't dispute the debt, I dispute its status, and a validation request would be reasonable should they try to collect on it. As is I am simply trying to get the credit report corrected and have my proof of settlement. However if I had to go to court for it, and had lost my "settled in full" letter, I would invoke SoL right away. It's the simplest and clearest defense. In my opinion.

Anyway, he has several good defenses and can just use them as they arise during the trial. In my case the Plaintiff directed the order of the claims with her questions, and my defense more or less was in my answers to her questions.

BTW, her first question was "Did you have a credit card with such and such". MDConyers, how do you plan to answer that question if your main defense is the debt is invalid?

MDConyers · Mar 12, 2008, 08:18 AM

Thanks Scott, I appreciate your answer and advice.

Tomorrow is the big day. I am trying not to start running down the road screaming they'll never take me alive!!

I have never been in this situation before and I am not quite sure what to expect. I think I am prepared, but then on the other hand I am not sure what to expect.

ScottGem · Mar 12, 2008, 08:27 AM

Originally Posted by MDConyers

Tomorrow is the big day. I am trying not to start running down the road screaming they'll never take me alive!!!!!

I think you will do fine. Just stick to your guns and say you want proof of the validity of the debt.

Keep us posted.

Aside to LadyB. I understand what you are saying. Its one thing to say I don't dispute the account, just that they have a right to sue over it or that the amount is correct. But if one has taken the tack that they aren't sure the debt is theirs, then they can't say the SOL has expired.

MDConyers · Mar 12, 2008, 08:34 AM

If they prove the validity of the debt right there in the court room, should I then try the SOL defense. That was the plan I had previously formulated.

Thanks

MD

ScottGem · Mar 12, 2008, 08:38 AM

Yes, in fact you can ask for a recess or continuance while you review the proof. Don't accept a sheaf of papers. Tell the judge this is the first you have seen this stuff, even though you have requested it previously, so you need time to go over it.

If you find it does validate the debt, but is over the SOL, then definitely explain to the judge, that their proof has satisfied you that this is a debt you incurred. However, since no activity has existed since x, the SOL has expired and they can no longer use the courts to recover this amount.

Fr_Chuck · Mar 12, 2008, 08:46 AM

Also to be honest from what I read here almost no attorney is actually ready to defend, they expect you just not to show up.

But I am not sure that the SOL would not be my first defense, since if it is outside the statue of limitation, the case is mute to start with, and no defense or proof of debt is even valid to ask.

But either way will work.

MDConyers · Mar 12, 2008, 09:00 AM

Actually I am hoping they do not show up. I have read blogs on other sites where people have said that the Plaintiff did not show up.

LadyB · Mar 12, 2008, 09:06 AM

The Plaintiff sent a local "cover attorney" in our case, and that seems to be a somewhat common practice. Basically it appeared her job was to sit there, say "here" and collect default judgments on no-show defendants, as she was representing several different creditors on multiple cases. She was in no way ready to actually make their case and the papers she had been given provided no validation of anything.

MDConyers · Mar 12, 2008, 09:28 AM

I have heard that as well, I am not so sure about this collection agency and the law firm that is representing them. Which I have read that are one in the same.

Which poses another question. I had read in the FCRPA that an assignee and a purchaser of the debt cannot be one in the same. In all the paperwork, it says that they are an assignee of the original creditor. However the original creditor had charged this account off, and I am sure claimed a tax break for this action. Therefore would that not make you assume that this debt had to be purchased??

Also there is a slip of paper that had 2 lines on it, saying that this account was purchased in December of 2005. This was in the original summons. Hope that doesn't change how I should go about this.

ScottGem · Mar 12, 2008, 10:18 AM

Nope doesn't change a thing. The fact that the debt was charged off is totally immaterial to you. The fact that it was purchased, just means they need to prove they have the right to collect on it.

LadyB · Mar 12, 2008, 10:21 AM

Also there is a slip of paper that had 2 lines on it, saying that this account was purchased in December of 2005. This was in the original summons. Hope that doesn't change how I should go about this.

Are they using that as proof of standing? If so, I would challenge it if it doesn't include your name, the original account number, etc. A slip of paper saying they bought a debt doesn't really prove they bought your debt.

In summary of all the responses here; they need to prove the debt itself is valid, that the debt is yours, that they have standing (they own the debt), and that it is not time-barred. That's a lot of documentation that debt buyers rarely have.

MDConyers · Mar 12, 2008, 10:29 AM

I am not sure whether they are using this as proof of standing, since there is no significant documentation saying that this is their verification of this debt. To me it is all very vague and I believe that they are counting on me not showing up.

I guess this just came to me, if this debt was purchased in 2005, it was already beyond the statute of limitations. Since GA sol is 4 years on open accounts, and 6 years on written accounts.