SOL and NO RECORDS/PROOF from Collector

[signqueen]

What is the name of your state? OHIO

First, I live in Ohio and the Credit card is from South carolina, the last payment was made in Jan of 2002 although the credit report says 10/03. I am quite certain of the date because I recieved a notice from Providian stating that basically due to 9/11 they were raising the interest rates. This infuriated me especailly since the rates had gone down because of 9/11. I stopped paying after calling them and listening to their stupid excuses for raising my rates to 29% when I had a perfect payment record..

1. My first question is it Ohio's SOL or South Carolina's? And, some say the staute in Ohio is 15 yrs but credit cards are open ended so wouldn't that be 6? ( I have another old credit card billl from 98 when my son was sick)

2. I was out of town for three weeks last summer and didn't get the 30 days notice until it was too late to answer and ask for Proof of the bill. I am being sued by a lawyer for Midland Funding who bought the debt in 2005.

3. SO... the court documents I received (from a lawyer) say this on them:
Attached hereto as Exhibit "A" is an affidavit attesting to the amount owed the Plaintiff. Attached as Exhibit "B" is the final account statement. The remaining account records are not attached hereto because, upon information and belief: (a) Plaintiff is not the original creditor and does not have possession, custody or control of said records; (b) copies were sent monthly to the defendent (s), and are or were in Defendent (s)' possession, custody or control; anbd/or (c) said amounts may be voluminous.

Okay does this mean they have to produce no proof of the orginal bill? I thought that was mandatory. Thier proof is literally an affidavit signed by an employee of Midland funding who calls himslef a "Relationship Anaylist" who says he has knowledge basically that Midland bought the debt from Providian and I owe it.

4. Is it to late for me to ask for proof? The court date is March 24th, but I did file an answer to the court that a lawyer gave me denying all allegations.

I will pay it as I can if I have to but these guys should be shot for using 9/11 to raise interest rates to 29%. I wish I still had that letter a Judge wouldn't like it much. I appreciate any advice or help you can lead me to.
Thanks
CamWhat is the name of your state?

[Ladynred]

1. My first question is it Ohio's SOL or South Carolina's? And, some say the staute in Ohio is 15 yrs but credit cards are open ended so wouldn't that be 6? ( I have another old credit card billl from 98 when my son was sick)

There is a lot of discussion about this but the SOL would be OH. If you lived in SC and the SOL expired BEFORE you left the state it MIGHT apply, but an OH judge is going to look at OH statutes and OH judges are going with the 15 year statute.

2. I was out of town for three weeks last summer and didn't get the 30 days notice until it was too late to answer and ask for Proof of the bill. I am being sued by a lawyer for Midland Funding who bought the debt in 2005.

No, it is/was NOT too late. You can request validation at ANY TIME. Now it IS too late and in order to get proof you will have to go thru the discovery process.

3 - Their 'affidavit' is BS. File a motion to strike it as the Midland person has no personal, first-hand knowledge of the account. You should read this about affidavits: [url]http://www.narca.org/Newsletter/2003/1stquarter/challenges.asp[/url]

The rest bascically says they either don't have the proof and are relying on their bogus affidavit, or they refuse to produce it because there's too much of it. My money's on they don't have it.. they rarely do.

4 . - No, you can get proof thru discovery.

As for a judge liking or disliking Providians reasons for raising your rates.. no judge will care. Providian is a sub-prime lender and they don't have the best of reputations. The universal default clause still prevails, so perfect payment to a single creditor is now meaningless unless you have perfect credit with ALL of them. If your utiliazation goes up too high, have too many open accounts, too MUCH credit -- ie. lots of accounts with high limits.. they consider all of these things to be risk factors.

[Chien]

LNR's points are all correct, but I doubt that you'll be able to strike the affidavit via motion and question whether it's worth the time to try. At this point, it's the basis for an allegation (probably necessary to properly assert the claim). It's not proof of anything except what people were told. Cases get filed all the time based on "information and belief".

I would suggest that you focus on her other point and put your engergy into discovery. The lawyer's affidavit on information and belief is based on another statement (that of the debt buyer), which is also made on information and belief.

Force them to go back to the source of origin. Force them to get proof from the OC about how records were kept and the procedures used to ensure their integrity and the fact that the claim against you has documentary support, which is then produced.

Chances are very good that they can't do that. Then their case becomes a matter of what Jane told John , who told Joe. Without any substantive evidnce or direct knowledge to support it, that's all just hearsay. That you should be able to get the court to exclude. Without evidence of th debt, you should be home free. But focus on your discovery and keep hammering.

[JETX]

Originally Posted by signqueen

My first question is it Ohio's SOL or South Carolina's? And, some say the staute in Ohio is 15 yrs but credit cards are open ended so wouldn't that be 6?

ACTUALLY, it is BOTH..... follow closely!!

The fact that the credit card agreement was entered in South Carolina means that their state would NORMALLY apply. Their SOL for debts (open or written) is 3 years. However, if you left that state BEFORE that SOL expired, then the SOL freezes... until your return. So, if you left with that SOL still intact, it is still valid.

Now, since you are in another state (Ohio) the creditor can chose to apply your OH statutes... which is four years for an open account (credit card) or 15 years for a written agreement.

I was out of town for three weeks last summer and didn't get the 30 days notice until it was too late to answer and ask for Proof of the bill. I am being sued by a lawyer for Midland Funding who bought the debt in 2005.

Then you need to contact the court IMMEDIATELY and find out if they got a default judgment against you (since you failed to answer). If they did, you are pretty much SOL as the SOL (no pun) defense must be made PRIOR to the judgment.

SO... the court documents I received (from a lawyer) say this on them:
Attached hereto as Exhibit "A" is an affidavit attesting to the amount owed the Plaintiff. Attached as Exhibit "B" is the final account statement. The remaining account records are not attached hereto because, upon information and belief: (a) Plaintiff is not the original creditor and does not have possession, custody or control of said records; (b) copies were sent monthly to the defendent (s), and are or were in Defendent (s)' possession, custody or control; anbd/or (c) said amounts may be voluminous.

Okay does this mean they have to produce no proof of the orginal bill? I thought that was mandatory. Thier proof is literally an affidavit signed by an employee of Midland funding who calls himslef a "Relationship Anaylist" who says he has knowledge basically that Midland bought the debt from Providian and I owe it.

Okay, that should be sufficient to the court... and leaves it up to YOU to challenge their submission.

Is it to late for me to ask for proof? The court date is March 24th, but I did file an answer to the court that a lawyer gave me denying all allegations.

Okay, now you have confused me. Earlier in your post, you said "didn't get the 30 days notice until it was too late to answer and ask for Proof of the bill.".... now you say you did file an answer. WHICH IS IT???

[ecmst12]

I think he meant he was too late to ask for proof *before* the suit got filed....

[signqueen]

Yes, I meant the 30 days notice came last August when I was out of town. NOW, I have to go to court this Friday, March the 24th, I did file a paper denying all allegations, as advised by a lawyer. I was going to file bankruptcy but found out I couldn't, basically because I don't have a mortgage.

I had resigned myself to paying it, but was doing some research (here and elsewhere) and realized they didn't have any proof just the bogus affadavit by one of their own employees. I suppose most people don't even show up and thats how they get their judgements, as much as I cringe at going to this thing, I am going.

My main question was is it to late to request PROOF of the original bill. From your answers am I to understand I can file a motion to strike his affadavit and/or a motion to request the correct proof? Or, at this point do I just go to the hearing and ask for the original documents? I am quite certain I paid it last in Jan of 2002 which puts it past both SOL's but my credit reports say 10/02 and 10/03, I have no idea where they came up with those dates. Can I ask for proof of them also?

Everyone has circumstance beyond their control at times, I will never get another credit card, you pay for it a thousand times over.

I appreciate everyones help.
Thanks
Cam

[Chien]

OP - We're talking past each other.

I suggest putting your energy into discovery and JETX says you have to challenge their submission. I think JETX and I are saying much the same thing: you have to come up with hard, admissable evidence to show that what they're speculating about is wrong.

You do that by obtaining evidence that convinces that Court that what they're speculating about is not true. You have that evidence yourself and/or you get iit from them by means of what is called "discovery". You're not going to get the attorney's affidavit stricken but you can show that it's wrong. As a very simple example, I can file an affidavit saying "I am informed and believe that John Doe owes my client $500.00 for a bed that was ordered and delivered on January 1, 2005."

Now there's nothing necessarily wrong with that. My client did tell me that. But then John Doe steps forward with a cancelled check for $500.00 and a purchase invoice for a bed marked "Paid In Full". John's evidence trumps my affidavit. My client was wrong.

You don't file a motion to request correct proof. You already have the right to request it; just do it. You don't go to court and ask for it then, because there are rules about how you make such requests and rules about how they respond to them.

You can ask for documents and you can ask them to answer questions and to admit or deny things relevant to the case. But discovery is a very important process where, if you don't follow the rules, you can waste time and get nothing.

I would suggest that you go to a local law library or a big local bookstore. At the bookstore, look for "how-to" books by Nolo Press. They publish easy-to-read books to help laymen work within the legal system. If you're not going to get an attorney (and you should if you can find any way), then you need to teach yourself more about the court process, and especially discovery right now.

[Ladynred]

I was going to file bankruptcy but found out I couldn't, basically because I don't have a mortgage.

You don't have to have a mortgage to file bankruptcy ! Unless what you mean by that is your house is all paid off.