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jokyfo · Mar 17, 2009, 12:57 AM

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?

this8384 · Mar 17, 2009, 07:27 AM

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.

jokyfo · Mar 17, 2009, 07:03 PM

Originally Posted by this8384

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.

ballengerb1 · Mar 17, 2009, 07:24 PM

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.

jokyfo · Mar 17, 2009, 08:43 PM

Originally Posted by ballengerb1

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.)

JudyKayTee · Mar 18, 2009, 06:23 AM

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?

jokyfo · Mar 18, 2009, 04:51 PM

Originally Posted by JudyKayTee

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.

JudyKayTee · Mar 18, 2009, 06:04 PM

Originally Posted by jokyfo

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.

ballengerb1 · Mar 18, 2009, 06:09 PM

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.

jokyfo · Mar 18, 2009, 07:30 PM

Originally Posted by JudyKayTee

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?

jokyfo · Mar 18, 2009, 07:30 PM

Originally Posted by ballengerb1

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.

JudyKayTee · Mar 19, 2009, 05:40 AM

Originally Posted by jokyfo

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.

ScottGem · Mar 19, 2009, 06:37 AM

Originally Posted by jokyfo

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.

jokyfo · Mar 19, 2009, 06:59 AM

Originally Posted by ScottGem

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?

ScottGem · Mar 19, 2009, 07:54 AM

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.

this8384 · Mar 19, 2009, 08:15 AM

According to this link, I would assume this debt falls under "contracts":
Arizona Statutes of Limitations
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/viewquestio...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.

ScottGem · Mar 19, 2009, 11:55 AM

Originally Posted by this8384

According to this link, I would assume this debt falls under "contracts":
Arizona Statutes of Limitations
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.

this8384 · Mar 19, 2009, 12:07 PM

This is part of the original post:

Originally Posted by jokyfo

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.

jokyfo · Mar 19, 2009, 05:53 PM

Originally Posted by this8384

According to this link, I would assume this debt falls under "contracts":
Arizona Statutes of Limitations
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
Debt collection statute of limitations listed by state

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.

this8384 · Mar 20, 2009, 06:44 AM

You just reiterated my point with this statement:

Originally Posted by jokyfo

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":

Originally Posted by this8384

...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.