Jr's debt but Sr. gets served

[HilbertJr]

What is the name of your state?NC My father was served with a summons on 05/15/04 for a credit card debt that was not his. He responded to the Court and the plaintiff on 06/03/04 that this could not possibly be a bill that he was responsible for, since he had never applied for, nor been issued, or even puuchased anything, with a credit card. He heard nothing of this matter, until a few weeks ago when he found out by mail that he had a trial date of 11/07/05 in the District Civil Court of the county where he resides. During a conversation with him yesterday, learn of the matter for the first time. Because I once lived at the same address, and carry the same name (except for the Jr.) I feel that he has been served for an account that was once mine. What can he do to avoid the trial, or what must he do at the trial to prove that the account was not his?

[Debt Guy]

Here are my thoughts for what to do, ranked in order of what is least stressful to your father.

1. You call the attorney for the creditor before the court date and make arrangements to pay what is owed.
2. You attend court and tell the judge that you were the party served and that you just want to make sure everyone knows you and your father share the same name.
3. You and dad attend court together. Tell the judge that your father was served in error for a debt that is yours and not his.
4. Tell dad to go to court alone and tell the judge that he was served in error for a debt that belonged to his son. It might or might not fly.
5. Tell dad to ignore the whole thing until his wages are garnished or his bank account is levyed.

I think that is pretty much all the choices as it relates to your father.

You, on the other hand, might have an escape if the debt is out of statute. The statute of limitations in NC is 3 years. If your last payment on the debt was more than 3 years ago, you need to file a response to the lawsuit that the debt is time-barred. This assumes of course that you have been a resident of NC continually during this entire period.

[HilbertJr]

Thanks for the reponse. I checked my CR, and the original account holder, Providian, is showing up as having sold the account, Charged off as Bad c, and the Date Closed as 09/2002. Paragon Way Inc. is showing that they bought the account and placed it for collections on 11/2002. Is the date to be considered for calculating SOL, the 09/2002 that Providian shows as the Date Closed and sold it off as Bad Debt? Further review of my CR I see that my current address is correct, and was updated on 06/2004. The account report shown for Paragon Way Inc. was updated on 09/2005. Doesn't this show willful neglect on the part of Paragon, by continuing with the trial, knowing that the person charged is not the correct one?

[Debt Guy]

Please, re-read my post. I gave you the answer. But, since you missed it, you get the full dose of my standard response regarding SOL.

The SOL begins to run with the Date of First Default. In almost all cases, the DOFD is 30 days after the last regular payment made on the debt (after which the debt was never current).

A statute of limitation is a law that limits the time period in which a lawsuit or other claim may be brought. Most legal actions have some time limit in which they must be filed or the person having the right to bring the claim loses out. For example, if you owe a debt, the law will specify the amount of time that the creditor has to bring a lawsuit to get a judgment for the debt. This time will vary from state to state and may vary depending on the type of debt. For example, it is common for debts arising from a written contract to have longer statutes of limitation (meaning the creditor has a longer time to bring the claim) than a debt arising from an oral contract.

In general, a SOL is defense to a claim, not an automatic bar to the claim. What that means is that in most cases, the claim can be filed and it is up to the defendant to raise the SOL as a defense. For example, suppose you owe a credit card debt to XYZ bank. Let’s say that under the law that applies to your debt, the SOL is 4 years. You stopped paying on the credit card account in 2000, thus breaching the contract and giving XYZ the right to sue you in court for a judgment for the amount you owe. But XYZ waits until this year to sue you, five years after it had the right to sue. That is past the period allowed by the SOL. XYZ is allowed to file the suit anyway. When you get served, you then respond by asserting the SOL as one of your defenses. The court would then dismiss XYZ’s lawsuit because it waited too long. If you do not raise the SOL, then XYZ could get a perfectly valid judgment against you. So, don’t assume that because a SOL has expired that you do not need to respond to a lawsuit. Too many people make that mistake only to find out later that they were wrong.

The basic idea behind a SOL is to encourage parties to pursue their claims promptly. That has several benefits. First, it helps ensure that as much evidence as possible is available to help the court decide the case. The more time that passes before a claim is brought, the more likely it is that documents will get lost or destroyed, witnesses die or their memories fade, etc. Furthermore, the defendant should not have to worry forever about whether the claim will be brought. At some point, he should be able to move on and forget about it.

Finally, you should be aware of one other rule about SOLs and debts. In some states, if a SOL for suing on a debt expires and then the debtor confirms the obligation after that, the SOL may start anew and give the creditor the ability to sue for the judgment.

If you are confident that the SOL is truly expired (as explained and defined above), send each creditor a letter telling them the debt is time-barred and they are to cease all collection activity. Ignore all the rubbish you find on the internet for examples -- keep it simple -- just write and say "I dispute this debt in its entirety" and "this debt is time barred under the laws of (your state)" and "cease and desist all contact with me" and, of course, put your name, address, phone number, social security number and the creditor's reference number on the letter (you don't want any confusion). Send the letters certified mail and request a return receipt.

Again, as explained above, a lawsuit can still be filed. You must be alert for any summons. If you receive a summons, you will need to respond to the lawsuit and raise the time-barred defense. Then the judge will toss the case.