Need Help Asap Pleaseeeeeeee

What is the name of your state? Massachusetts

Tomorrow i am being taken to small claims court on a catalog credit card debt aquired over 6 years ago when i was married to my ex husband....my name is the one on the card but i didnt charge it he used it in catalog forms and online to place orders for my birthday christmas and other holiday gifts to me...i know massachusetts is a equitable division state but does this apply when only my name was on the debt even if it was aquired during our marriage?..i'm so uninformed and tomorrow may 15th at 8:30 am im walking in that court blind ...im so furious and my lack of information is helping not at all....someone have any ifo or answers to my question pleaseeeeeeeeeeeeee

[JETX]

The SOL for 'open account' debt (credit card) in Massachusetts is 6 years, so if it has been that long since the last activity (payment or application), the debt would be unenforcable.
Simply ask the creditor to prove to the court that the SOL has not expired. Be prepared to argue any claims that they might make to the contrary... take your check records, etc.

Also, your post says that your "name is the one on the card", but you don't tell us if your name is on the credit application. If you signed the app, and if the SOL is valid, you will probably get a judgment against you. However, if the SOL has expired and/or your name is not on the application, then they should lose.

One final note.... a lot of these creditors file cases in mass on the assumption that people are not going to show... and they get a judgment by default. Show up and force them to prove their case. Changes are, they can't.

[Ladynred]

I also noticed you say MA is an 'equitable division' state.. BUT MA is NOT a community property state. Your debts/assets are yours and his are his.

Just in case you aren't familiar with the SOL abbreviation, it stands for 'Statute of Limitations" - the time in which you can be sued to enforce collection of a debt. If that time has expired, then that expiration of the SOL is your affirmative defense to get this lawsuit dismissed, but you need to be prepared with proof just in case, even though the burden of proof of the debt is NOT on you, its on the suing attorney/creditor.

Another thing you should go prepared with is a settlement offer and/or payment plan that you can afford. If the SOL has not expired, and you're on the hook for it, you will likely be offered a settlement of some percentage of the balance. Draw up your own offer. If you can pay that up front in a lump so, great, if not, offer to settle by making payments that you can afford.

If this debt hasn't expired yet but is still old, I'd offer them no more than 25-30% to start with, give yourself some negotiation room, but know your top limit. If you are challenged on the payments you can afford, be prepared with a financial statement showing your income and ALL your expenses to prove to a judge that you really can't afford to pay any more than what you're offering.

The big thing in any court case, even small claims, is to BE PREPARED. Have papers, your proof, whatever organized so you won't have to shuffle papers to find things. Knowing you've got your ducks in a row will help you keep calm and will likely annoy the lawyer, since he's probably expecting that you won't even show up and he gets an easy victory. Don't let him win that easily, ESPECIALLY if this debt could be past the SOL period.
If you can find proof of the last payment and you know its beyond the SOL, take along this MA Statute to back you up :

"CHAPTER 260. LIMITATION OF ACTIONS.



Chapter 260:
Section 2. Six years.

Section 2. Actions of contract, other than those to recover for personal injuries, founded upon contracts or liabilities, express or implied, except actions limited by section one or actions upon judgments or decrees of courts of record of the United States or of this or of any other state of the United States, shall, except as otherwise provided, be commenced only within six years next after the cause of action accrues."

And take this, from the Truth in Lending Act:

"TITLE 15 > CHAPTER 41 > SUBCHAPTER I > Part A > Sec. 1602.
(i)

The term ''open end credit plan'' means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time. "

This defines credit cards as open-ended accounts. Most collection agency lawyers will try to argue that credit cards are written contracts.. the TILA says differently and this is your proof !

I hope you do well in court today.

Just wanted to thank you all for your fast replies....i went into court yesterday and the lawyer with my case had 20 that day and i was the only one that showed up....before court he took me outside and offered me to pay 25$ a month....but before i agreed i told him i wanted to see the original contract so i knew if ex was listed as a buyer and i told him i wanted to see a record of purchases made and also when it became 90 days overdue because of the statutes of limitations...I told him that my house had burnt down january 2,2000 and i had no documentation of payments made and not made on the account and that before i agreed to a monthly payment settlement i wanted to see proof that i owed what they say i do...well the lawyer had a single sheet ofpaper that looked like it been typed by his office that had an amount on it thats it....he had no proof to back up the debt at all....so the case has been continued til august 28th so he can get paperwork....but not sure he will find any after 6 years....the credit card company doesnt exist anymore and it was sold to a credit agency and then to another and now to a lawyer but if i gotta pay this i wanna see proof....6 yrs ago was a long time and i dunno what was paid or not on that account ....he has the burden of proof in this does he not?....what should i do in august any suggestions?....Thanks again for all your help wouldnt have gotten past the settlement thing yesterday without the knowledge you all shared with me....Rosie

Their "lawyer" was obviously hoping you would not show so he could get a default judgment. I think you kicked his butt when you demanded proof. Now, I suggest you take the time to learn about "validation of debt", everything about Statute of limitations for open accounts (I think JetX said its six years), and other stategies which I am no expert on but others are. You'll find them here, on [url]www.creditnet.com[/url], and several other sites that have been mentioned on this board, I think Ladynred posts on a site (I believe it's [url]www.creditboards.com[/url] or something like that).

Good work and good luck.

[Ladynred]

Way to go Rosie !!!

You definitely slammed the lawyer just by showing up and then demanding proof of the debt. I feel sorry for the other 19 people who probably ended up with default judgments just because they didn't show up.

Ok.. now you need to do some research, as Cyana suggested. You also need to pull your credit reports, all 3 and find that account. If its only been 6 years, then its likely still on your credit report and you can get the date of last activity, charge-off date and the come-off date. Any and all of these dates will help you determine whether or not the SOL has expired or not.

The other boards I frequent are [url]www.creditinfocenter.com[/url] where you'll find the validation info and sample letters you can use, [url]www.cardreport.com,[/url] where WhyChat is a mainstay and the resident "expert" on SOL (he's a retired lawyer). I pop in and out at [url]www.creditboards,[/url] the veterans from creditnet all 'hang out' there now, and there are a lot of good sample letters there too.

I've got my fingers crossed that you beat this thing

Was this debt by chance NextCard? If so, I may have some additional avenues for you to travel down once you've followed the advice of everyone else.

thanks so much i will check those sites and read up on it ....and get my credit reports as well ...do you know how i can go about gettin my credit reports without havin to sign up for anything????

and no it was not nextcard it was a newport news clothing catalog credit card through first consumers national bank...

[Ladynred]

Well, you can get a free credit report under 3 circumstances:
- you've recently been denied credit
- you've become unemployed
- you believe you may be a victim of identity theft

If you can't use any of those, then you can just order your CR from Equifax.com, experian.com and transunion.com, the cost is set at $9 each. Don't get a tri-merge or 3-in-1, they lack crucial details.

You can choose to view and download your report or order paper versions to be mailed to you.

[JETX]

Actually, the provisions for a 'free' credit report are not as simple as stated by Ladynred. To clarify, you are entitled to a free credit report if:
- You have been denied or were otherwise notified of an adverse action related to credit, employment, insurance or a government license or other government granted benefit within the last 60 day
- You are also entitled to a free copy of your Personal Credit Report once during any 12 month period if you certify to the CRA that you are either: (1) unemployed and intend to apply for employment within 60 days; (2) a recipient of public welfare assistance; or (3) have reason to believe that your information on file contains inaccurate information due to fraud.

And though the 'standard' fee for online credit reports is $9.00 for each of the big-3 CRA's, some states have mandated lower or free access to credit reports, so you might want to check to see if your state is one. Here is the online information for the CRA's (Credit Reporting Agencies):
Experian: [url]https://www.experian.com/consumer/cac/02_Registration.jsp[/url]

Equifax: [url]https://www.econsumer.equifax.com/consumer/order.ehtml?prod_cd=CPO[/url]

TransUnion: [url]https://www.tuscores.com/userAgreement.jsp[/url]