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Served Improperly?

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COGirl2008

Junior Member
What is the name of your state? Colorado

I was recently served on an old credit card debt for $3200 and have since filed my answer. However, as I was browsing the forums I saw a post where someone had been served a summons with their "old name", and thus, had to be re-served with their "new name".

First off, the summons was found in my next door neighbor's yard. I presume it was left on my porch and blew away. At any rate, it was found and I did appear in court to file my answer. Secondly, the summons was under my former married name (I have since re-married). In my answer, I did state the expiration of the SOL as my defense and noted that the service was improper (they never made physical or visual contact with me or anyone in my household).

My question is, can I use either of these facts to my advantage somehow? I received a letter from the collecting attorney last week and noticed that they now have both of my names listed. I have my pre-trial conference this morning and will undoubtedly be posting again as things progress.

Thanks in advance for any help.What is the name of your state?
 


COGirl2008

Junior Member
Re: Improper Service?

Update: I had my pre-trial conference via phone and the Judge ruled that I was improperly served, and thus, the plaintiff must have me re-served properly. The process server claimed that she confirmed with a neighbor that I was home (I truly was not!) and therefore the Judge had issues with that assumption being used to justify "refusal of service". As far as the last name, the plaintiff's attorney used the term "alias summons" when he asked if he could re-serve under the same case number. I assume this means they will re-serve, but this time with both last names.

The attorney for the plaintiff also provided some useful dates as far as my last payment (Dec. 2003), etc., and he firmly believes that Colorado's SOL on credit card debt is six years. Once this thing gets rolling again after proper service, I will proceed with the three year defense and will implement some information provided by others on this forum that seems pretty concrete to prove my case. Any advice along those lines is greatly welcomed. I will post my progress as things move along. :)
 

Debt Guy

Senior Member
Start here to research your state statute on SOL:

Colorado Revised Statute Title 12, Article 14, Section 101, et seq. (12-14-101)

INTEREST RATE
Legal: 8%
Judgment: 8% (or higher if specified in contract or note)

STATUTE OF LIMITATIONS (IN YEARS)
Open Acct.: 3
Written Contract: 6 (signed promissory note)
Written Contract Goods Services: 3
Domestic Judgment
District Court-20 (renewable every 20)
County Court-6 (renewable every 6)
Foreign Judgment: 6 in CO.

Your challenge is to prove that a bank credit card is an open account and not a written contract.

My understanding is that most CO judges do not view a credit card agreement as a "signed promissory note" -- you really ought to seek some legal assistance on this.
 

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