Civil Suit Again!

[Tonyah]

What is the name of your state? Colorado

Last year a collection attorney tried to get judgment entered against me on an old credit card debt in civil court. I used the expired statute of limitations as my defense. The collection agency failed to issue their motion for judgment in a timely manner so the courts closed the case. About a month after the case was closed they sent in paperwork asking the courts to enter judgment against me stating my defense of expired SOL was not a valid defense. The courts denied their request saying the case was closed and dismissed without prejudice. Last night I was served papers from the same agency and they are re-filing papers trying to get judgment entered against me again for the same credit card debt.

Can they try to sue me civilly for something that was already dismissed without prejudice?

[Chien]

If your dismisal was without prejudice, yes they can.

It doesn't change the merit of your SOL defense, but it is appropriate to note that there is something just a little strange about the fact situation.

If the SOL was a valid defense in the first instance, it should be an absolute defense. Meaning there is no way around it - if the statute expires, the statute expires. There is no fixing that (at least not that I can think of until we hear more about the new Complaint).

If you had an absolute defense before, one would expect a judgment in your favor rather than a dismissal of the action on procedural grounds. It makes it even more strange that they are filing after the Court denied the re-request and said the case was "closed".

I'd suggest that you review the court file very carefully. Make sure the dismissal was not with prejudice (then you're home free). It seems we're missing some part of this story.

[Tonyah]

I pulled my old paperwork out from the 1st case. The courts had dismissed the case due to failure to prosecute and I did verify it was dismissed without prejudice. The new case is identical to the old one, just with a new date to file my answer. Should I just refile the same way I did the 1st time and ask that this case be dismissed with prejudice so they can't come back on me again? Also, should I put something in there about this case already being dismissed previously? I was also thinking about counter-suing for the filing costs, can I do that?

[Tonyah]

Colorado
I pulled my old paperwork out from the 1st case. The courts had dismissed the case due to failure to prosecute and I did verify it was dismissed without prejudice. The new case is identical to the old one, just with a new date to file my answer. Should I just refile the same way I did the 1st time and ask that this case be dismissed with prejudice so they can't come back on me again? Also, should I put something in there about this case already being dismissed previously? I was also thinking about counter-suing for the filing costs, can I do that?

[Chien]

My interpretation of that fact set is that the Court took the easy and safe course and got rid of the case on indisputable procedural grounds (the late filing), without touching the disputed merits (the SOL defense).

So the answer to your question is yes, re-file your Answer. If you previously filed it at the last minute and it could use some touch-up to make it even stronger, do that too.

Don't expect the same mistake to be made again, so do your homework on the SOL defense, and be prepared to argue it.

As stated at the beginning of the thread, if the SOL defense is successful, it's absolute. This time, issues will be decided on the merits. If you prevail, the case will be dismissed with prejudice. You don't have to make a specific request.

I don't think mentioning that it was previously filed and dismissed is going to buy you anything, simply because it was a dismissal on procedural grounds. You can throw it in if you wish, just to remind the Court that they're screw-ups. I don't expect it to have any bearing on the final decision, but it could tilt the Court a bit psychologically.

Don't think about a counter-suit; that just means an additional filing fee for you. DO ask for costs of defense in your Answer. If you prevail, you'll be awarded your filing fees anyway.

So filing a polished Answer shouldn't involve much new work. I suggest that you spend what additional time you have in studying the paperwork "stating my defense of expired SOL was not a valid defense". Review their arguement. See why they contend you're wrong. Be prepared to rebut it. In the end, that's what the fight is going to come down to.
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Edit: That part about "if you prevail, the case will be dismissed with prejudice . . . ."? I stated that awkwardly and therefore incorrectly. If you prevail on the SOL defense, there are no adquate grounds on which the plaintiff could base an appeal. You can't get around that defense. With no ability to go forward or come at you with a differnt theory of liability, you're in the same place as a dismissal with prejudice would place you. Sorry for the misstatement

[Tonyah]

State of Residence: Colorado

This is what I came up with when filing my answer to their summons. Please let me know what you think:

The Colorado Debt Collection Statute of Limitations for open accounts/credit card debt is 3 years. The date of the last payment on this debt was October 2000, which would make this debt fall under the Expired Statute of Limitations. The law states that the Statute of Limitations on Collections is an affirmative defense to any lawsuit after it is expired. Since the Statute of Limitations is expired, this debt cannot be legally enforced by a lawsuit. I am asking the courts to please dismiss this case on these grounds.

[Chien]

Is that the whole thing?

If it is, I think you're off to a fine start and would make only a couple of further suggestions:

I. First, "deny generally and specifically each and every allegation in the Complaint." With what you have, you haven't denied anything. You've just asked the Court to dismiss it. More things could come out. Don't rest your whole defense on the SOL.

2. Second, the SOL is one Affirmative Defense and, you hope, the conclusive one, but add another: "The Complaint fails to state a cause of action." It's a grab bag to cover anyhting else that comes up later.

3. Add a request that you be awarded costs and fees (if the court dismisses, you're entitled).

4. Be prepared to go directly to a law library and start studying "discovery". There should be "form books". Serve them with a Request for Production (or what ever it's called in your state) for every document, record and writing that supports, evinces and reflects the alleged debt and the basis thereof.

(I'm taking liberties with the language that I expect the Court to allow to a pro se defendant.)

If it hasn't been filed, check back. There's one other thing I'd like to check in your state statutes.

[Chien]

When does your response have to be filed? I'd like to check whether this can or even should be done in the form of a demurrer or motion to dismiss, and I'll be off the board for 24-48 hours.

If you've got a local law library, take a day to check for pleading form books and check both terms.

[Tonyah]

I don't have to have it filed until April 10th, so I still have some time to do more homework. Thanks for all your help and information.

[Chien]

Good. Gives me more time to review your statutes.

The date they used has never been discussed in the thread. Was and is it still October 2000?

[Tonyah]

They never actually listed a date anywhere in the summons. They attached a statement from the original credit card company, showing a charge off date of 5/11/2001 which is on a statement from the original credit card company that they attached to the summons. Basically the 2nd time I got the summons, it is an exact duplicate of the 1st one I got last year just with a new date for me to enter my answer. I got the date of October 2000 from my credit reports (all 3 of them show the same date of 10/2000 as my last payment and 5/01 as the charge off date).

I also looked thru the case from last year about my expired SOL not being a valid defense and they stated some case (City & county of Denver vs. Qwest 18P3d 748). I looked this case up and it has to do with preventing local governments from charging rent to telecommunciations providers fro use of the public rights-of-way. Any idea why they would reference a case that has absolutely nothing to do with expired sol on credit card debt?

I'm going to look some more stuff up today and have found alot of useful information, but the state statutes are kind of confusing to me, so any help you can give me on Colorado statutes is greatly appreciated.

[Chien]

Thanks for the patience, Tonyah.

You've never said how much this claim involves and, because I'm not a CO attorney, I'm about to get a little "legally geeky" on you and I would be happy, if you could get an hour's consultation with local counsel on some CO procedural rules.

First, I've now read the City and County of Denver v. Qwest case and don't see what it has to do with the SOL either.

The defense that you're setting up - that the claim is time-barred - is a valid Affirmative Defense but, when it's only raised in the Answer, the case could hypothetically continue on to trial before the Court is required to consider it. You want to use it to get rid of the case quickly. In my state, that would commonly be done by a demurrer. That's a pleading that's filed INSTEAD of an Answer and that basically says to the Court "there's something wrong with the Complaint and I don't have to Answer until the problem is fixed, if it can be fixed". In your situation, that would require the Court to look at the SOL and decide if the case can continue at all.

It appears that your state has abolished demurrers (CRCP, Ch. 2, Rule 7(c)). Instead, it would appear to permit you the right to do the same thing by filing a motion - a motion to dismiss for failure to state a claim on which relief can be granted.

If that's not geeky enough, my speculation is that you've never previously filed an Answer, much less a motion. It's not that difficult, if you do some homework. But your whole defense rests on this at the moment. You want the next steps to be right. That's why I think it would be time and money well-spent to retain or at least consult with local counsel to check if I'm right about your statutes, rules and procedures and to give you either assistance or guidance on the next steps.

You're not doing anything wrong and the Court may give you extra latitude as a pro se but, if you can get this issue resolved early and quickly, you'll know whether you're going to continue to have to deal with the claim or everything goes away. I don't believe that what you posted before is something that the Court will consider an adequate motion, regardless of how liberal it is.

[Tonyah]

State of Residence: Colorado

I don't know if you can help me or not, but I received a request for trial date from the Plaintiff. I spoke with an attorney and they believe the CA will probably try and convince the courts that a credit card debt falls under Colorado Statute 13-80-103.5 General limitations of actions-six years: all actions to recover a liquidated debt or an unliquiated , determinable amount of money due to the person bringing the action...which wouldn't make this debt expired.

I was going under 13-80-101 general limitation of actions-three years.

Should I check with another attorney or does anyone know which one credit card debt would fall under and give me a good enough defense to argue with?

[Chien]

OP - I re-read this whole thread and the odd thing is that it focuses on the procedural aspects of the re-filing rather than the statutory aspects of the SOL defense. In point of fact, as the one who responded, I remarked that "My interpretation of that fact set is that the Court took the easy and safe course and got rid of the case on indisputable procedural grounds (the late filing), without touching the disputed merits (the SOL defense)".

Now that I look at the grounds on which you relied originally and re-asserted when you were re-served, the statute on which you relied doesn't say what you alleged that it says ("The Colorado Debt Collection Statute of Limitations for open accounts/credit card debt is 3 years.")

13-80-101(a) refers to "All contract actions, including personal contracts and actions under the "Uniform Commercial Code", except as otherwise provided in section 13-80-103.5."

13-80-103.5 provides:
1) The following actions shall be commenced within six years after the cause of action accrues, and not thereafter:

(a) All actions to recover a liquidated debt or an unliquidated, determinable amount of money due to the person bringing the action, all actions for the enforcement of rights set forth in any instrument securing the payment of or evidencing any debt, and all actions of replevin to recover the possession of personal property encumbered under any instrument securing any debt; except that actions to recover pursuant to section 38-35-124.5 (3), C.R.S., shall be commenced within one year.

In short, you're urging that a CC obligation is on an open account with a 3-year SOL and they're urging that it's based on a written contract with a 6-year SOL. It's a debate that has often occurred on this site, and the law is not entirely settled. Different states have come to different conclusions.

I looked at the annotations appearing online and you can too by starting here:
[URL="http://198.187.128.12/colorado/lpext.dll?f=templates&fn=fs-main.htm&2.0"]http://198.187.128.12/colorado/lpext.dll?f=templates&fn=fs-main.htm&2.0[/URL]

But I think you need to talk to local counsel (as suggested before: "I think it would be time and money well-spent to retain or at least consult with local counsel") to (1) determine if a clear trend has been set in CO (2) to more fully research the application of the statutes and, if appropriate (3) to try to persuade the Court that the 3-year statute pertains.

I have read what annotations appear online, and it would appear that the issue is still up for grabs, but is tilting toward 6 years.

For example, your thread never says whether suit is being brought in the name of the OC, as opposed to a debt buyer or assignee.
With regard to 13-80-103.5:

This statutory section only applies when there is a contract between the parties. Pound v. Fletter, 39 P.3d 1241 (Colo. App. 2001).

"Liquidated debt" and "unliquidated, determinable amount" construed. A debt is deemed "liquidated" if the amount due is capable of ascertainment by reference to an agreement or by simple computation. A debtor's dispute of or defenses against such claim, or any setoff or counterclaim interposed, does not affect this result. Similarly, if a contract fixes a price per unit of performance, a claim based thereon is "determinable" even though the number of units performed must be proven and is subject to dispute. Rotenberg v. Richards, 899 P.2d 365 (Colo. App. 1995); applied in Interbank Inv. v. Vail Valley Consol. Water, 12 P.3d 1224 (Colo. App. 2000).

The Colorado statute of limitations for the enforcement of rights which are set forth in an instrument securing the payment of a debt is six years after the claim for relief accrues and a claim for relief on a promissory note accrues the day after the note matures. Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244 (Colo. 1994).

You need someone who can research those and any others not listed and find favorable distinctions.