being sued - will i win this case?

[pinklady04]

What is the name of your state?I was just being served a court paper yesterday . It's about a Discover debt of $1800 ($3300 including interest). This is a very old debt and the last payment date was feb 1999. This Discover account has been charged off in 1999 and bought over by NCO Portfolio Management, Inc Assignee of Discover.

I live in Iowa. Plaintiff's name is an Iowa local law office (probably a collection agency too).

Is the SOL depends on where i live or where the Creditor live? Iowa's SOL is 5 years. So, the creditor doesn't have right to collect debt from me and not to mention to sue me, is this right? (SOL is based on the last payment date or the charge off date?)

I need everybody's advice. Last year, this law office called me, and caught me off guard, so I answered their questions, like yes, i am this person. And they immediately asked me to pay the debt. I didn't know I could just hang up the phone. So, I told them I couldn't afford to pay, and i would prefer them to talk to my lawyer (well, i didn't have one). I didn't talk to them since then. Does it mean that my account has being re-confirmed? (the date of SOL re-set to last year?)

Please help. thank you.

 

[Ladynred]

Unless you sent some money or agreed IN WRITING to pay the debt, you did NOT reset the SOL.

The SOL starts to run when the account goes continuously delinquent. If you last payment was 2/99 (be absolutely sure !), then the SOL would start in 3/99. The SOL then ran out the end of March of this year. However, IF they actually filed the lawsuit itself BEFORE the end of March - and before the SOL expired - then you could be stuck. So, you need to know the EXACT filing date of this lawsuit and the exact DOLA on the Discover account.

If they filed AFTER 3/31/99, then the debt is time-barred and the expiration of the SOL is your best affirmative defense to stop this lawsuit in its tracks.

If you have been instructed to file an Answer with the court with a copy to the attorney, then you need to do so. Include the expired SOL as your affirmative defense anyway. There are some good instructions on how to Answer here:

http://community-2.webtv.net/YCHANGE/STORAGE/page2.html

 

[pinklady04]

being sued- will i win this case (something weird on complaint letter)

LadynRed, thanks for your reply.

I've checked my credit report, and it's quite clear that i stopped making payment in Feb 1999, and there is a '30' icon on March 1999, then 'CO' in month September,99.

I checked the summon letter, or is it a complaint letter (it explains the case, how much i owe plus interest, and that i should contact the court within 20 days), it has a stamp saying 'Filed 04 June 28', so i should be safe.

Will the plaintiff pay the attorney fees since this case has past SOL? or my lawyer has to prove that the plantiff KNEW my account has passed the SOL?

Something I don't understand on the complaint letter is it says they start charging the interest on March 11, 2000. Why March, 2000 (half year after the account being charged off) ? not September 1999? Do they have different dates than i do?

 

[pinklady04]

one more question, how would i know for SURE that my last payment was feb 99? what i did was to order credit report from 3 credit bureaus. Is this the only thing i have to do?

 

[Ladynred]

Once you use the affirmative defense of the expired SOL in your Answer to the Complaint, or in court, its up to THEM to try to prove otherwise. 9 times out of 10 they don't have a shred of proof, they EXPECT to get easy wins by default because people don't know their rights, have no idea there's an SOL, and/or are afraid to go to court at all. No show = easy default judgment for them and that's what they count on. In cases where people show up to fight, especially on a time-barred case, they rarely win.

The credit report is pretty darn good proof of the DOLA and from the dates, they definitely missed the boat on this one. As I said, once you use the SOL defense, its up to THEM to prove the contrary.

 

[pinklady04]

legal state interest rate

The plaintiff is charging me 19.8% interest rate while the legal state interest rate for debt is 5%. Isn't this a FDCPA violation? They can't just go around and sue people without finding out whether the case is time-barred or not. They have caused embarrasement and stress. I have to spend on legal fees. Those bast*rds! I really feel like countersue them for all the pain. I hope other consumers wouldnt just sign the paper and accept the claim. I feel bad for them.

 

[pinklady04]

Furious

The more i thought of it, the more furious i feel. What if i/other consumers didn't know our rights, and accept the claim, at 19.8% interest rate. This is so unfair! I don't have bad temper, but am definitely upset in this case.

 

[pinklady04]

Possible Bad News

Iowa.

I opened my Discover credit card when i was in Michigan in Jan 1998. Then, moved out of the country for two years and then moved back in 2001 to Iowa. So, based on tolling, i actually have to follow the SOL of michigan????

I know that this account has been purchased by another party, which he will become the creditor now. So, do i have to follow the SOL of the new creditor (i am not sure which state), or michigan or Iowa??

Michigan has SOL for debt of 6 years. If i have to follow its SOL, then I am out of luck.

 

[BelizeBreeze]

you are out of luck

 

[HomeGuru]

Sol SOL.........

 

[pinklady04]

Deny it

I still can deny it, right? since the legal state interest rate for both Iowa and Michigan is 5%. They shouldn't be charging me 19.8%. They have violated FDCPA, haven't they?

I have contacted a few lawyers, all of them said that the cost of hiring them would be the same as the amount i was asked to pay the plaintiff. So, I will be better of answering the summon myself or making a deal with the plaintiff.

 

[JETX]

Okay, lets try to get you some CORRECT answers.....

1) The SOL can be one of three jurisdictions:
a) The original state where the contract was entered, or
b) The state laws as set in the agreement (venue clause), or
c) The state where you are currently located.

2) Most people seem to get fixated on this SOL issue and don't understand that most states provide a 'freeze' of the SOL for that state if you have left the states jurisdiction. For example, if the Michigan laws were to apply in this debt, the SOL would have been frozen at the time you left the state:
"600.5853 Absence from state.
If any person is outside of this state at the time any claim accrues against him the period of limitation shall only begin to run when he enters this state unless a means of service of process sufficient to vest the jurisdiction of a Michigan court over him was available to the plaintiff. If after any claim accrues the person against whom the claim accrued is absent from this state, any and all periods of absence in excess of 2 months at a time shall not be counted as any part of the time limited for the commencement of the action unless while he was outside of this state a means for service of process sufficient to vest the jurisdiction of a Michigan court over him was available to the plaintiff."

And in Iowa:
"614.6 Nonresident or unknown defendant.
The period of limitation above described shall be computed omitting any time when:
1. The defendant is a nonresident of the state, or
2. In those cases involving personal injuries or death resulting from a felony or indictable misdemeanor, while the identity of the defendant is unknown after diligent effort has been made to discover it. The provisions of this section shall be effective January 1, 1970, and to this extent the provisions are retroactive."
(By the way... the statutes for limitations in Iowa can be found at: http://www.legis.state.ia.us/IACODE/2003SUPPLEMENT/614/ )

3) Now, given all the above, it is IMPERATIVE that you answer the lawsuit (if required) and then do some pretrial discovery, asking specifically for a FULL accounting of the record (so that you can put a calendar to it) and for what states law they are intending to try to apply (so that you can research).

 

[Ladynred]

Shouldn't she still use the SOL affirmative defense in her Answer anyway ? If you don't use an affirmative defense, you lose your right to do so. If it comes down to fighting it, then you may or may not win, but at least by using it you keep your rights.

Chances are pretty darn good they aren't going to know you left the state and won't dig that far. If they just go by the laws where you live now, and its more likely they will, then you'll be ahead of the game.

Per the FDCPA, they can only sue where the contract was signed or where you currently reside. Of all the lawsuit accounts I've read in the last 2+ years on this and 3 other boards, I have yet to hear of a single case of the defendent being sued under the 'venue clause' that JetX mentioned. Quite frankly, I don't think they go to that much trouble, mostly because they count on winning by default 99% of the time ! Most of the accounts I've read where people DO go to court, the plaintiiff's lawyer's are SO unprepared for ANY kind of a fight that its laughable. Most have no proof, no papers, no applications, NOTHING, they seem to stutter and fumble in front of the judge and do a fair amount of backpeddling when asked if they have any proof of their claims.

As far as being sued on a time-barred debt - they don't care, and its not illegal for them to do so, except in a few states that actually make it illegal to collect or sue on a time-barred debt.

 

[JETX]

Shouldn't she still use the SOL affirmative defense in her Answer anyway ?

*** Though I agree with you that she should, there is really no obligation to do so in the answer. A defendant can simply submit a 'general denial' of all claims..... then present the SOL issue in court at that hearing.

If you don't use an affirmative defense, you lose your right to do so.

*** Agreed, but as noted above, the written answer to the suit does not need to detail any or all specific defenses to be offered. A lot of defenses are developed as the pre-trial discovery proceeds.

Chances are pretty darn good they aren't going to know you left the state and won't dig that far.

*** I disagree. It is pretty easy for a creditor to learn (know) that you moved as that information is pretty clear. In this case, the application and billing records in the creditor file would show your Michigan address.... and they clearly know you are now no longer in Michigan. I also contend that once they know that YOU know the SOL defense, they will very likely look at how to counter that.... and if the attorney is any where near competent, he will consider the moves and dates.

I have yet to hear of a single case of the defendent being sued under the 'venue clause' that JetX mentioned.

*** I agree.... it is possible for a lender agreement to stipulate venue (that is why I mentioned it) but it is not universally common.

 

[Ladynred]

*** I disagree. It is pretty easy for a creditor to learn (know) that you moved as that information is pretty clear. In this case, the application and billing records in the creditor file would show your Michigan address.... and they clearly know you are now no longer in Michigan. I also contend that once they know that YOU know the SOL defense, they will very likely look at how to counter that.... and if the attorney is any where near competent, he will consider the moves and dates.

Ya got a point there, they could figure it out, but I'd bet they're unlikely to know they need to if the SOL defense isn't brought up until the day in court. I'm sure there are plenty of competent lawyers representing creditors out there, but most seem to be either complacent or smug because they don't expect to have to fight to win, then they're caught with their pants down when a defendent does fight them.