Ohio law on statue of limitations

[vicky Carlisle]

What is the name of your state? Ohio

My husband filed bankruptcy in Ohio in 2/1997 it was a total bankruptcy and all debt was wiped out completely.

After that a year or so later he did get a credit card with a $300.00 limit on it. He only had it for a short while and cut it up and has never applied for one since then.

Recently he got a summons that he has to answer for a debt from a credit card with a balance of $1,545.00 **************.This can not be his debt !

The letter is from an attorney hired from another creditor that wasn't the original creditor and they say that is why they don't have the account records attached .

It reads, Tthe Plaintiff is not the original creditor and does not have possession , custody or control of said records. Copies were sent monthly to the defendant and are or were in defendant's possession, custody or control: said account records may be voluminous. ?????

MY husband has not had any credit cards for years, he has not gotten anything from them in the mail . It might be a person with the same name?? We have only lived here at this address for 3 yrs and the letter does have our correct address on it. How should he answer this summons.

He wants them to prove to him that it is him that owes this debt. Also he wonders if it is one of his old creditors from his pre bankruptcy days ? If so that was over 10 yrs ago. And all that debt was wiped out

Isn't there a statue of limitations on this type of thing?

Thanks for any input anybody can give.

[seniorjudge]

Standard answer on expired SOL (statute of limitation) and/or validation and/or dispute letters. There are thousands of posts similar to yours on this forum so I have prepared a standard answer.

Validation letters:

[url]http://forum.freeadvice.com/showthread.php?t=353111[/url]

SOL (Statutes of limitation are DEFENSES to lawsuits; they do NOT provide a method to stop someone from suing you. This defense means when they sue you, you answer with the defense that it is barred by the SOL.)

[url]http://www.bcsalliance.com/y_debt_sol.html[/url]

[url]http://www.fair-debt-collection.com/Disputing_Collections/SoL-dispute-letter.html[/url]


Validation letter samples you can get at :
[url]www.creditinfocenter.com[/url]
and [url]www.creditboards.com[/url]

Make sure you ask for VALIDATION (and do not accept verification).


Disputes: You can write a letter of dispute to the three credit reporting agencies.

Go this website to find instructions and samples for how to dispute: [url]http://www.creditinfocenter.com/creditreports/[/url]

Sometimes errors are easy to remove and sometimes they stick like glue. It is inexpensive to try and not difficult.

I am NOT a creditor-debtor lawyer; stand by for further help.

I am NOT vouching for the accuracy of these websites!

Debt settlement:

[url]http://forum.freeadvice.com/showthread.php?t=293829[/url]

[debtcollector`]

The use of the term "plaintiff" make me wonder if this is a summons rather than a collections letter.

DC

[vicky Carlisle]

Originally Posted by debtcollector`

The use of the term "plaintiff" make me wonder if this is a summons rather than a collections letter.

DC

Thank you so much for taking the time to answer and,
Yes it is a summons. The question was how do we answer this summons?

My first intention was to do a search, not post a questions. However, I've tried to do a search probably 15 times and all I get is this error window pasted below. I've worded it over and over using more then 4 words every time but all I get is this window pop up.

So my search tool isn't working I resorted to posting the question.

Thanks for all of the advice.


The search term you specified (of) is under the minimum word length (4) and therefore will not be found. Please make this term longer.

If this term contains a wildcard, please make this term more specific.

[debtcollector`]

There should be direction on how to answer on the summons. It will also give you your time frame to file your answer.

I'll leave advice on answering summonses to the attorneys on this forum who are better qualified to answer that question.

DC

[boonehead]

Ohio law requires the credit card company to send a statment monthly if there is any balance on the account, here is part of the law. Do a search on Ohio Revised Code. The sections you are looking for are in the pasted section below

1109.18 Extending credit pursuant to revolving credit agreement.
(A) A bank may extend credit to a customer pursuant to a revolving credit agreement allowing the customer to access the credit from time to time, subject to a limitation on the outstanding balance of the credit accessed and without regard to whether the customer has previously accessed and repaid the credit. A revolving credit agreement may authorize the customer to access the credit extended by either or both of the following:

(1) Purchasing goods or services from a seller by means of the bank’s commitment to advance to the seller the payment for the goods and services purchased by the customer;

(2) Obtaining an advance of funds by the bank or by another in reliance on the bank’s commitment to pay the funds advanced to the customer.

(B) The terms of a revolving credit agreement may permit the bank to charge, collect, and receive any finance charge or other fee or charge permitted by section 1109.20 of the Revised Code. A revolving credit agreement shall specify the manner in which the bank will compute the loan balance on which interest and finance charges are assessed as permitted by section 1109.20 of the Revised Code. A revolving credit agreement may permit the bank to charge a minimum monthly finance charge of one dollar for any month for which there is an unpaid balance on the customer’s account.

(C) The bank shall supply to its customer under a revolving credit agreement a statement as of the beginning or end of each period in which there is any unpaid balance on the customer’s account, which period may be a calendar month or other regular period not in excess of thirty-one days. The statement shall include the following:

(1) The unpaid balance under the agreement at the beginning and end of the period;

(2) The date and amount of each advance made by the bank for the account of the customer during the period;

(3) The cash purchase price and the date of each purchase of goods or services with respect to which advances for the account of the customer were made during the period;

(4) All payments made by the customer to the bank and any other credits to the customer during the period;

(5) The amount of all charges made against the customer during the period;

(6) A legend to the effect that the customer may at any time pay the unpaid balance without incurring further charges.

Effective Date: 01-01-1997

[Chien]

Isn't there a statue of limitations on this type of thing?

Yes. 4 years on an open account and 15 years on a written contract. The issue of whether a credit card is to be treated as an open account or a written contract has been discussed ad nauseum in these forums. I'm sure your search function will find that, so please forgive me for not re-opening it. Your state's courts have tended to follow the "written contract" approach.

The question was how do we answer this summons?

True and more to the point, because your husband is not going to be able to do discovery (ask questions and get documents) unless an Answer is filed.

Without wishing to split semantic hairs, what do you mean by "how do we answer"? What should it look like? How should it be formatted? What should we say?

While you can file an Answer using Magic Marker on yesterday's grocery bag, the court would prefer that it look and be formatted like the Complaint. OH is not my state, and I can't do much more than direct you back to what plaintiff did in that regard.

As to what you say and how you say it, there are two possible approaches. Your state may allow you to "deny generally and specifically each and every allegation in the Complaint". If you're not even sure that they should be suing your husband, that's a possibility and the easier of the two approaches. The other approach is to admit or deny each allegation in the Complaint as it occurs. It's more cumbersome but more traditional and no question of whether it "may" be acceptable. Here is an example in that form:
[url]http://www.lectlaw.com/forms/f016.htm[/url]

Without having seen the Complaint, it's not possible to be any more specific. What you should note in the example are what are called Affirmative Defenses (they could be included with the first approach as well). There is nothing preventing you from including an Affirmative Defense that "the Complaint is totally barred by a discharge in Bankruptcy". You should include all Defenses that you believe may later be shown to be valid. You don't get penalized, if it turns out that they're not, and they are matters about which you want to conduct discovery, so make them issues in the case.

Finally, understand that, while the foregoing comment about Defenses matters, the Complaint and Answer basically just frame the issues in contention. Each can normally be amended, if facts sufficient to warrant it develop (although you try to avid the necessity). The real work begins with developing evidence by way of discovery, so prepare for that. Your discovery can be served along with your Answer. It will give you a jump on the plaintiff.

Aside from what is posted here, consider using "form books" at a law library, if one is local. Actually seeing what we're discussing can make things much easier and can make the process more efficient.