Garnishment with a SOL

[eli4192]

What is the name of your state (only U.S. law)? Indiana

I found out today via my bank that a judgement had been placed against me and that a garnishment set for a cc debt this is over 7 years old. I was never notified of the small claims court case, and now have no access to my money. I was told by the court there is a "hearing" on July 2. What happens at this hearing, and since the cc debt qualifies for SOL, how do I get this resolved?

 

[cosine]

The SOL applies to the date the lawsuit was filed with the court. If they file the day before SOL runs out, you cannot raise SOL as a defense. It appears to be 6 years in Indiana. When was their lawsuit filed?

If the service on the debt was defective (you didn't receive it for a reason other than your own evasion of the service), you could potentially get the judgment dismissed, and perhaps (for now) get your money back. But unless the plaintiff willingly committed fraud in the defective service, they probably will get to re-file the lawsuit and serve the summons, with the SOL defense applying to the original filing date.

If you were properly served, you had the opportunity to argue any defenses in court. Is there any reason you could not have done that, assuming you had a valid defense (if you really owe the money and it was filed within SOL, probably not).

How were you "told" about the July 2 hearing? Did you get a summons for it, or was it just spoken when you inquired with the clerk about what was going on. Are you going to appear?

 

[eli4192]

a year past

The SOL for the credit card would have been sometime around March-April 2008 as the last payment I made was around March or April 2002. I know this because the reason I stopped paying was I was losing my job and needed to start putting money towards getting a place to live as my job provided living quarters for me.

The lawsuit was filed on April 21, 2009 from what I can find out. Like I said I had no clue this issue was going to court. I was aware this collection agency had the account as I would get mailings from them every month or so, and finally I mailed them a letter once the SOL was in effect saying the debt was SOL. I found out about the judgement from my bank, whom gave me the phone number to the lawyers representing the collection agency. I spoke with them and they told me what the judgement amount was and the dates. I confirmed those dates with the small claims court here in Indianapolis.

Had I know of the court case I would have gone because I knew it was SOL. The monies are still at my bank and will be "held" by them until after this "hearing" on the 2nd of July. I just can not get from anyone if anymore monies that go into my account will be removed or what, or what I need to do at this hearing.

How do I prove the SOL is in effect or is up to them to prove it isn't?

 

[eli4192]

Yes

I must defentily am going to the hearing on the 2nd of July, I am just not sure what I need to bring or what to say. I have a copy of my credit report but besides that what else can I do?

 

[latigo]

Unfortunately, you can’t now challenge the judgement on the grounds of the running of the statute of limitations on the claim that it represents.

In other words, the judgment creditor cannot raise defenses to the claim once judgment is entered.

Here you would need to first move to set aside the judgment for lack of service of process and for an order quashing the garnishment.

I suggest you get to the clerk’s office and look in the case file for the RETURN OF SERVICE. Why?

Because before the plaintiff could have received a default judgment it would have been required to submit written, sworn proof to the court (Return of Service) that you were served with the complaint. And unless by publication, the date of service and where you were served.

Now maybe Indian small claims rules permit service by mailing. You will need to ask the clerk. But even then there would have to be proof of mailing in the clerk’s file.

[This is just off the top of my head, but somewhere back I recall that Indiana court rules require that at the time of the filing of the complaint the claimant has to verify that the statute of limitations on its claim has not expired. My memory might be faulty on this. I’ll see if I can run it down.]

No one can help you as to what you will need in court for the hearing, because we don’t know what the hearing is for.

What information is stated in the notice?

I can’t imagine any purpose in the judgment creditor asking for a post judgement hearing unless it is a debtor’s examination.

Get back to us after you have visited the clerk's office.

 

[Bosco]

Even if you can't get the judgment vacated, you still need to look into filing a countersuit for the FDCPA violation of filing suit on an out of statute debt.

Might also consider speaking to an NACA attorney. They'll usually give some free advice and if you got a solid case, they'll usually take it on a contingency.

 

[racer72]

Even if you can't get the judgment vacated, you still need to look into filing a countersuit for the FDCPA violation of filing suit on an out of statute debt.

Might also consider speaking to an NACA attorney. They'll usually give some free advice and if you got a solid case, they'll usually take it on a contingency.

Please point out the section of the FDCPA that says debt collectors cannot file lawsuits to collect debts that have exceeded the SOL. In 49 of the 50 states and the District of Columbia, the SOL is a positive defense to the a lawsuit, it does not mean that one cannot be sued for the debt. The OP does not live in the one state that banned suing for debts that exceed the SOL.

 

[Credithis]

In Most federal courts suing on a time barred debt has been found in violation of the FDCPA, this is a direct violation of Federal appeals court rendered verdicts.

Now, before you ask what case lemme look into my files and give you the case #'s.

Also, as an aside, the court he was sued in would have lacked subject matter jurisdiction because it was barred from court by State law. Appeals Court time!!! Yes, I know you want "cites". Later...

 

[Bosco]

In Most federal courts suing on a time barred debt has been found in violation of the FDCPA, this is a direct violation of Federal appeals court rendered verdicts.

Now, before you ask what case lemme look into my files and give you the case #'s.

Also, as an aside, the court he was sued in would have lacked subject matter jurisdiction because it was barred from court by State law. Appeals Court time!!! Yes, I know you want "cites". Later...

Exactly. We played this game with them before regarding suing on the out of statute debt. Guess the case law I posted then wasn't good enough eh?

 

[eli4625]

Followup question

Okay, I am going on tuesday to my bank to get a copy of the paperwork, will it be any differnt from what the clerks office has? Also, how is SOL proved or disproved? Also, how do I prove I had no knowledge of the first hearing on May 21st? All I want is my day in court to prove that this debt falls under the SOL in Indiana.

 

[cosine]

Okay, I am going on tuesday to my bank to get a copy of the paperwork, will it be any differnt from what the clerks office has? Also, how is SOL proved or disproved? Also, how do I prove I had no knowledge of the first hearing on May 21st? All I want is my day in court to prove that this debt falls under the SOL in Indiana.

Don't forget that SOL begins on the first day the CC company would be allowed to sue, which is the charge off date. Accounting standards requires CC companies to do a charge off not later than 6 months after delinquency. Some do so earlier. And delinquency is the day the account becomes past due (not the day after your last payment). So start with the due date that was MISSED. Then add 6 months (less only if you know the company does charge offs earlier). Then add the SOL period. Now you have the date SOL ends. And even then there are various exceptions that may apply. And even if SOL has run out, they can still sue and if you don't raise the SOL, can get a judgment, making it necessary for you to have the judgment vacated (not simple). To get the judgment vacated you will have to show that you had no opportunity to appear at the original hearing and/or file a response (e.g. faulty service, serious illness, etc).

If you never received the original service, you should see what was entered at the court as evidence of the service. For example, did they send it to the wrong address?

 

[Bosco]

Don't forget that SOL begins on the first day the CC company would be allowed to sue, which is the charge off date. Accounting standards requires CC companies to do a charge off not later than 6 months after delinquency. Some do so earlier. And delinquency is the day the account becomes past due (not the day after your last payment). So start with the due date that was MISSED. Then add 6 months (less only if you know the company does charge offs earlier). Then add the SOL period. Now you have the date SOL ends. And even then there are various exceptions that may apply. And even if SOL has run out, they can still sue and if you don't raise the SOL, can get a judgment, making it necessary for you to have the judgment vacated (not simple). To get the judgment vacated you will have to show that you had no opportunity to appear at the original hearing and/or file a response (e.g. faulty service, serious illness, etc).

Again, you're flat out wrong.

IC 34-11-3

Chapter 3. Accrual of Cause of Action;

Time From Which Limitation Period Runs IC 34-11-3-1

Mutual, open, and current accounts

Sec. 1. In an action brought to recover a balance due upon a mutual, open, and current account between the parties, the cause of action is considered to have accrued from the date of the last item proved in the account on either side.

That means the SOL begins with the last charge or payment on the account.

 

[cosine]

That means the SOL begins with the last charge or payment on the account.

The charge-off is an item on the account.

 

[Bosco]

Okay, I am going on tuesday to my bank to get a copy of the paperwork, will it be any differnt from what the clerks office has?

I'm not 100% sure, but I believe the forms are different. Regardless, no harm in obtaining both just to be sure.

Also, how is SOL proved or disproved?

If you have some kind of proof that the account went delinquent and never had any further charges or payments on it before the SOL expired, there is your proof. If you don't have that proof then you'll have to go after the account records which should be in the possession of the plaintiff.

Also, how do I prove I had no knowledge of the first hearing on May 21st? All I want is my day in court to prove that this debt falls under the SOL in Indiana.

You'll need to see the case file and find out how they claimed they served you. If the service was fraudulent (IE they claimed you were served at home when you were really at work) or their service was not proper under the court's rules of civil procedure then you'll have grounds to vacate the judgment.

 

[Bosco]

The charge-off is an item on the account.

No, it's not.