Asset acceptance suing me KY civil summons

[mark40511]

What is the name of your state? KY

Just bought a house . My credit score is clean. Old first card master card bought by Asset Acceptance llc. I recieved a civil summons a week ago. Got a lawyer. The lawyer responded to the summons demanding proof that I owe the debt. However I was talking with the lawyer about the KY SOL for open acct is 5 years. He says he will do his research but he thinks when I filled out the credit card app (last payment made on aug '96 by the way) that it can infact be considered a written contract. I' m like uugghhh!

He said if I had not bought a house. This probably would not have happened because it puts up a red flag. I got a copy of a letter in the mail today that my lawyer sent them and incidently I got a letter from the plaintiff today as well telling me that I could settle with them with my income tax to call them right away.

Can anyone predict what will happen with this. I have read all over these forums that a cc is NOT a written contract. Where does it exactly state this?

 

[Tayla]

What is the name of your state? KY

Just bought a house . My credit score is clean. Old first card master card bought by Asset Acceptance llc. I recieved a civil summons a week ago. Got a lawyer. The lawyer responded to the summons demanding proof that I owe the debt. However I was talking with the lawyer about the KY SOL for open acct is 5 years. He says he will do his research but he thinks when I filled out the credit card app (last payment made on aug '96 by the way) that it can infact be considered a written contract. I' m like uugghhh!

He said if I had not bought a house. This probably would not have happened because it puts up a red flag. I got a copy of a letter in the mail today that my lawyer sent them and incidently I got a letter from the plaintiff today as well telling me that I could settle with them with my income tax to call them right away.

Can anyone predict what will happen with this. I have read all over these forums that a cc is NOT a written contract. Where does it exactly state this?

A credit card is considered a *revolving/open* line of credit. A written contract is rarely a revolving/open line of credit.

Without knowing your attorneys education I can only surmise that he/she is not well versed in consumer law and protection of your rights on this matter. I'd highly suggest avoiding settling so quickly with this CA. Based on the SOL and the fact that they are pressuring you into a settlement without validating the debt accordingly. Seek a second legal opinion...

 

[Ladynred]

I suggest you take your lawyer a copy of the Truth in Lending Act, it clearly defines credit cards as OPEN accounts, NOT written contracts.

TITLE 15 > CHAPTER 41 > SUBCHAPTER I > Part A > § 1602
§ 1602. Definitions and rules of construction
(i) The term “open end credit plan” means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time.

http://assembler.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00001602----000-.html

 

[mark40511]

Thanks

I really appreciate that lady in red. So the TILA states that a cc is an open ended acct. Also someone above asked when the acct went into default? Does that mean date of last pmt? I know on the civil summons I recieved the charge off was '97 and ass acceptance bought the debt it in may '99. My lawyer sent me a copy of his response to my civil summons. Here goes:


Mr Williams has retained me after recieveing a Summons and Complaint in the above matter. Please be advised that Mr Williams is disputing that he owes the debt described in the complaint. As required by the Fair Debt Collection Practices Act, I. I hereby request that you provide: (1) Verification of the debt or a copy of any judgement or lien that is of record; and (2) the name and address of the original creditor. In addition, I would appreciate you advising wheather the acct # xxxxxxxxxxxxx was opened by way of a written contract or oral agreement.

I look forward to your reply to my requests. I would appreciate you calling me to discuss this matter.



So I wonder what their response will be.

 

[JETX]

So I wonder what their response will be.

It really doesn't matter what their response is. Ladynred is 100% correct. The SOL for an 'open account' (credit card debt) in KY is 5 years. If it has been 5 years or more since your last activity (payment or charge) on that account, have your attorney draft a motion to dismiss based on the 'tolling' of the statute of limitation.

 

[Ladynred]

Right. All your lawyer did was make a (somewhat lame) request for validation.

IF the last time you paid on this account was in 1996, then the SOL ran out 4 years ago (2001). ASSet says it was charged-off in 1997, that means it went delinquent 6 months prior, but there's NO WAY I'd trust ASSet's information. Pull your credit reports and see if its still there. It SHOULD have already dropped off your reports in 2003, so if its NOT on your reports, that's a point in your favor. If you have any older credit reports to compare to, even better.

Secondly, if ASSet is showing on your reports for this debt, they are breaking the law, violating the FCRA by reporting an obsolete debt. Collections can NOT survive the obsolesence of the ORINGINAL debt, you would have grounds to countersue ASSet for that. If they're on your reports, I would most certainly countersue for the FCRA violation, even more ammo for them to dry up and blow away if they have pay you !

 

[mark40511]

No

Actually..........They're not on my credit report. It's totally clean since I bought my house. So let me ask this. If my lawyer does send a letter stating that the SOL expired in 2001 and to dismiss based on this. Will asset take this further? I'm really really hoping they drop this. I don't wanna go to court but I will if I have to. The same day I recieved a copy of the letter that my lawyer sent to them, I got a letter from the plaintiff's attorney asking that I contact them to make a settlement at a discount with my income tax . On that letter the debt was 8,299.00. In the affadavit (spelling) that was on the civil summons I recieved. The total debt was 7,954.24. So the debt went up like 300.00?????

 

[JETX]

Actually..........They're not on my credit report. It's totally clean since I bought my house. So let me ask this. If my lawyer does send a letter stating that the SOL expired in 2001 and to dismiss based on this. Will asset take this further?

I have submitted your question to the world renowned internet fortune teller, Madam Tashia. I will let you know when she comes back with a guess as to what someone else 'may' do!

 

[mark40511]

What is the Discovery process? What is an admissions letter? Admiting to the debt? What difference does it make if the SOL ran out?

 

[guest.]

http://www.louisvillelaw.com/civil_rules/

 

[Ladynred]

Discovery is just what it says - you ask for all the supporting documents to make them prove their claim, that they're authorized to collect the debt, all kinds of stuff having to do with the account.

Request for admissions - a boatload of questions designed to get information out of you, or them.

What difference does it make if the SOL is up ?? It makes ALL the difference !! The statute of limitaitons is the timeframe they have to bring legal action to enforce collection of the debt. That means once the SOL runs out, they can still sue, but you can have the case thrown out by using the affirmative defense of the expired SOL. If you bring up the SOL defense, as you must or lose it, and you make your case, the judge can throw the whole case out the window, the debt is not legally enforceable any longer. BUT if you don't use the SOL defense and you let them win, then they can use all legal measures once they have their judgment, which is preventable with the SOL defense.

ASSet sues a LOT on out-of-statute debt and they WILL try to claim that a credit card is a written contract with the longer 15 year (KY statutes) SOL. You must make your case that a credit card is definitely NOT a written contract but an open-ended agreement with the 5 year SOL. The Truth in Lending Act clearly defines credit cards as open-ended, use it.

 

[mark40511]

Letter!

Thanks ladynred.

I got a letter in the mail today that my lawyer sent to them...here it goes...what do ya think?



COMMONWEALTH OF KENTUCKY
FAYETTE DISTRICT COURT
SECOND DIVISION
CIVIL ACTION NO. 05-CI-0755

ASSET ACCEPTANCE LLC
ANSWER

MARK WILLIAMS

Comes the defendant, Mark Williams, by counsel, and for his answer to the Plaintiff's Complaint, states as follows:

FIRST DEFENSE

1. The complaint fails to state a claim against the defendant for which the relief sought can be granted.

SECOND DEFENSE

2. The defendant alledges the affirmative defenses of accord and satisfaction, laches, equitable estoppell, mitigation, failure of consideration and waiver.

THIRD DEFENSE

3. That the defendant admits the allegations contained in paragraphs 1 and 2 of the Complaint.


4.That the defendant denies that he owes 7,921.72 and accruint interest on the revolving charge acct purchased by plaintiff, and set forth in paragraph 3 of the complaint.

FOURTH DEFENSE

5. That the plaintiff filed this action beyond the applicable statute of limitations and defendant relies on the said affirmative defense as a complete bar to plaintiff's claims and cause of action

6. Defendant reserves the right to amend his answer and to assert any additional defenses or necessary counterclaim(s).

WHEREFORE, the defendant Mark Williams having fully answered the plaintiff's Complaint herein, demands as follows:

1. For judgement against the plaintiff dismissing it's Complaint herein;
2. For his costs herein expended, including a reasonable attorney's fee; and
3. For any and all other relief to which he may appear entitled.

next


Defendant's First Set of Interrogatories
Request for Production and
Request for Admissions

MARK WILLIAMS

Comes the defendant Mark Williams, by counsel, pursuant to KRCP 33,34 and 36. Plaintiff is directed to serve its verified answers, and to produce the requested documents on or before thirty (30) days from the date certified below.
INTERROGATORY NO.1 State the complete name and address of the original creditor for the revolving account under which defendant allegedly owes plaintiff (hereinafter referred to as "revolving account"), as well as the date plaintiff purchased the account.
INTERROGATORY NO.2 Was the revolving account opened via a written or verbal agreement?
INTERROGATORY NO.3 Provide a detailed accounting-principal, interest, late fees,ect-for the revolving account.

REQUEST FOR PRODUCTION NO.1 Produce a copy of the written agreement, if any, between the original creditor and defendant for the revolving account.
Alternatively, produce an audio recording of any verbal agreement for the same.

REQUEST FOR PRODUCTION NO.2
Produce documentation supporting the accounting provided in your response to Interrogatory No.3

REQUEST FOR PRODUCTION NO.3
Produce a copy of the initial communication sent by plaintiff to defendant reguarding the debt he allegedly owes on the revolving account.

REQUEST FOR ADMISSION NO.1
Please admit of deny that the revolving account is an "open account," as defined under the truth in Lending Act 1602 (copy attatched).

REQUEST FOR ADMISSION NO.2
Please admit of deny that the applicable statute of limitations for a verbal agreement is five years under KRS 413.120.

REQUEST FOR ADMISSION NO.3
please admit of deny that the applicable statute of limitations for an "open account" is five years under KRS 413.120.

Respectfully submitted,

 

[guest.]

Sounds like boomer sooner should be playing in the background.

Touchdown MW's attorney!

 

[mark40511]

Got a copy of a letter my attorney recieved from the plaintiff's attorney today responding to the first letter he sent them stating that they were sure that they could come up with everything we asked for but to please allow 35 to 40 days. No response yet from the discovery letter.

 

[Ladynred]

Stall tactic !! I'd be willing to bet ASSet doesn't come up with even 1/4 of what your lawyer asked for !