Can they really sue?

[mdac]

My wife is being sued by a collection agency (we assume) for a debt from several years back (Discover Card). She does not recall receiving any collection letters from this company that claims to be handling the debt.

She checked her credit report and the debt was charged off in 7/97. Does this agency still have to legal right to sue her for something that was charged off?

In the Statement of Claim she received the plaintiff is demanding a judgement against her, what does this mean? Do you have any advise you can give us?

Thank you

 

[I AM ALWAYS LIABLE]

My response:

We'd like to assist you; however, you apparently didn't see that red writing up at the top of the page. Without your State name, or the name of the State where the problem happened, it would be difficult to assist you. Laws are different everywhere.

Thank you for your cooperation, and we look forward to you editing your post.

IAAL

 

[mdac]

Sorry

I am sorry, we are in the state of Alabama.

 

[I AM ALWAYS LIABLE]

My wife is being sued by a collection agency (we assume) for a debt from several years back (Discover Card). She does not recall receiving any collection letters from this company that claims to be handling the debt.

She checked her credit report and the debt was charged off in 7/97. Does this agency still have to legal right to sue her for something that was charged off?

In the Statement of Claim she received the plaintiff is demanding a judgement against her, what does this mean? Do you have any advise you can give us?

Thank you

My response:

Thanks for your State name. Now I can give you more specific information that you can use.

First, Alabama has a 3 year Statute of Limitations on "Open Accounts" - - Credit cards are generally considered Open Accounts.

Second, it is important that you do two things.

a. Make absolutely sure that 3 or more years has gone by since ANY payment was made on the Discover account. You see, the Statute is measured from that last payment date. Also, check the complaint to see what date they have stated was the last payment date.

b. Now, once you are absolutely sure of the last date of payment, look at the filing date of the complaint. If you have to count months, then do that - - accuracy, down to the day, is crucial in this regard. If 3 or more years has passed, measured from the last date of payment to the date of filing the complaint, the Plaintiff is out of luck. That means if they are even ONE DAY past the Statute of Limitations, they are out of luck. You can then answer the Complaint by offering the Statute of Limitations as a complete defense.

A "charge off" does NOT mean that the debt has disappeared, or that you still don't owe the debt - - IF their collection efforts are within the Statute of Limitations. That's merely a bookkeeping term; that is, there's a difference between the names for an "Active Account" and one that's "Inactive". So, insofar as the term is concerned, it's virtually meaningless for your wife. She would still owe the debt no matter what it's called.

Yes, the Collection Agency has the right to sue directly IF they have purchased the debt from, or if they have been authorized by, the original creditor (Discover Card is financial subsidiary of Sears & Roebuck Company).

A judgment is a court decision, made by a judge, that instructs the parties to a lawsuit concerning who wins, and who loses, a lawsuit. If the plaintiff wins against your wife, the judgment will say the Plaintiff wins, and how much the Defendant owes the "Judgment Creditor".

A judgment rendered in Alabama is good for up to 20 years (yes, that's right, 20 years), and carries a 12% interest rate. So, a money judgment left uncollected, or unpaid by the judgment debtor, can GROW real fast - - and that can be a devastating "monkey on her back".

So, you see, it was very important that you ALWAYS give us your State name because, in your instance, I needed to give you State specific information.

Good luck to you.

IAAL

[Edited by I AM ALWAYS LIABLE on 02-21-2001 at 03:47 PM]

 

[mdac]

Thanks, we think we can get them on the Statute Of Limitations defense. The last payment my wife made, she says, was back in 1994 but on the complaint I think they are trying to say the last payment was 2/27/98 which would put them just in the 3 years. They filed everything on the 12th of this month.

The Complaint Reads:
"Count 1"
The Plaintiff claims of the defendant WIFE's NAME the principle sum of $amount plus interest of $amount due on open account on to-wit: 2/27/98.
Wherefore Plaintiff demands judgment againse the above listed defendant for the sum of $amount plus interest and costs.

Then they have a "Count 2" that reads identical the the first count.

Since it has been MANY years, do you have any advice on how to prove the last payment since it was made in 1994. They are not telling the truth if they are trying to say the last payment was 2/27/98. We have considered calling Discover to see if they can tell when the last payment was made, but what if the company suing made a payment in my wife's name, then what?

She received the court papers today and we have 14 days to respond or they will make a judgement for the Plaintiff.

Thanks Again

 

[I AM ALWAYS LIABLE]

My response:

Okay, it's time to see an attorney. You need that attorney to review all of your papers, to write up a formal response to the complaint, and most important, to serve the Plaintiff with "Discovery requests" to force them into proving the date of the last payment.

Do this first thing tomorrow.

Good luck, and let me know how it turns out.

IAAL