How can I prove debt outside SOL?

[dlky]

What is the name of your state?KY

I'm being sued for a credit card that was charged-off sometime in 1997. I haven't made any payments towards this debt since 11/96, which was to the original creditor. How can I prove this debt is outside the statutes of limitations? It is so old that it no longer appears on any of the three of my credit reports. What I do have are my old credit card statements, which reflect when I stopped paying and when my card was revoked. I also have two letters from a credit agency that purchased the debt in '97. The people who are now suing are not from this company, have the original amount wrong, and have a date on their complaint during which time my debt had not even been charged off by the original creditor yet. I sent them a debt validation letter, but unfornunately they sent me a request for admissions and so on and my thirty days to respond is up before theirs. I don't know how to answer these questions ("You contracted for and received credit from plaintiff, or an assignor of plaintiff...." etc) without knowing if they even own the debt or who they are. (They never contacted me outside of their attorney prior to wanting to sue me and the "contract" they attached to their Complaint is a fax copy of a Discover cardmember agreement like from the back of an application for a card) Main question, any idea how to prove debt outside SOL without proof of DOLA? Thanks, dlky

 

[seniorjudge]

http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm

I am NOT a creditor-debtor lawyer; from what I've read on this forum, however, folks who try to pull stunts like this get smacked around in the courts.

Get a good debtors' lawyer in your area.

 

[cmorris]

Your statements and letters from previous CA's will prove they are out of statute (5 years for open accounts).

However, it is NOT your job to prove they are out of SOL--it is the CA's job to show how they are IN SOL. You sent the validation letter; did you send it certified mail return receipt? I hope you did b/c this will provide proof that you requested it. You can state you have no knowledge of this account based on what they are stating (i.e., amounts and dates). Definately mention that you sent a DV letter and they have not responded to it.

Since you sent the letter prior to being sued, the judge should most likely make the CA prove it is in SOL and provide proper validation before rendering a decision.

The CA is hoping for a default judgment. Go to creditboards.com or artofcredit.com to learn how about credit and how to defend yourself.

QUESTION:
What court is this in (small claims, state, federal)?

 

[dlky]

Thanks for answering. I can't really afford an attorney. Do you think I will lose if I don't have one? Also, to answer the second reply, it's in district court. I did send the debt validation letter certified w/return receipt, and have proof they received it. I was concerned that since I only have a limited time to answer my Request for Admissions, and they have slightly longer to answer my DV letter they would wait until the last minute to send it, so I don't have it to aid in answering the questions. I also know that I have to specifically admit or deny every question in there, or they can move for a judgement based on that alone if I'm don't or am too vague. And also, they ARE suing me. They tried to get a default judgement in another county (where I don't live) and the motion was denied due to insufficient service. They sent me a Complaint to which I sent them a letter which basically responded "....if there presently exists or ever existed, any or all of the alleged rights, claims, or obligations which the plaintiff(s) seek, each and every cause of actions is barred by the applicable section(s) of the KRS 413.120. In applying the statute of limitations under Kentucky state law, this action is time-barred if not having commenced within five years of accrual of action. Furthermore, defendant does not acknowledge this debt, and is under no obligations to the aforementioned account." blah blah blah. I also sent this certified with return receipt, but they are still sending me documents for their discovery process. There is no court date set or anything, they are just sending me documents through the court. I thought I also read somewhere that generally the burden of proof in on the plaintiff, except in certain cases where an affirmative defense (like mine being outside SOL) is brought up. Any other advice or suggestions.....please? dlky

 

[cmorris]

Thanks for answering. I can't really afford an attorney.

**Many go pro se.

Do you think I will lose if I don't have one?

**Not based on that.

Also, to answer the second reply, it's in district court. I did send the debt validation letter certified w/return receipt, and have proof they received it.

**Fantastic!!

I was concerned that since I only have a limited time to answer my Request for Admissions, and they have slightly longer to answer my DV letter they would wait until the last minute to send it, so I don't have it to aid in answering the questions.

**You don't need their supposed validation--as old as this is, I bet they don't have it.

I also know that I have to specifically admit or deny every question in there, or they can move for a judgement based on that alone if I'm don't or am too vague. And also, they ARE suing me.

**Deny everything based on that you have no knowledge of the alleged debt. You stated the dates and amounts are incorrect. That would make your answer a true statement. That is why you respectfully requested validation. However, instead of the CA responding with the proper documents (to prove it is yours, how they calculated the amount, that they should be one to legally collect, etc) they retaliate by suing. The judge will NOT be happy about this, especially since you have proof!

They tried to get a default judgement in another county (where I don't live) and the motion was denied due to insufficient service. They sent me a Complaint to which I sent them a letter which basically responded "....if there presently exists or ever existed, any or all of the alleged rights, claims, or obligations which the plaintiff(s) seek, each and every cause of actions is barred by the applicable section(s) of the KRS 413.120. In applying the statute of limitations under Kentucky state law, this action is time-barred if not having commenced within five years of accrual of action. Furthermore, defendant does not acknowledge this debt, and is under no obligations to the aforementioned account." blah blah blah. I also sent this certified with return receipt, but they are still sending me documents for their discovery process.

**If you have no knowledge of this account (see above), you can't possibly have anything to send. Send an answer stating you deny based on no knowledge of the alleged debt.

There is no court date set or anything, they are just sending me documents through the court. I thought I also read somewhere that generally the burden of proof in on the plaintiff, except in certain cases where an affirmative defense (like mine being outside SOL) is brought up. Any other advice or suggestions.....please? dlky

You do not have to provide proof. The validation letter is all the proof you need. If you wish, submit a copy of the letter and CMRRR (just a copy!).

Also visit the websites I mentioned above. Creditboards is wonderful and has a wealth of info. Art of Credit tends to be very litigation-focused. I have never been sued, so I cannot help with drafting an answer. No harm in seeking help from multiple boards!

 

[dlky]

cmorris,

Thank you so much for answering. Although, you say you can't help with drafting an answer, you actually have helped me to understand what to include, and more specifically what NOT to. Thanks again, dlky

 

[cmorris]

You are welcome. However, I do encourage you to still visit other boards. Do not take my word on all of this (again, I have never been sued). Perhaps someone here will chime in to confirm or correct my info.

I am sure, based on your posts, you can beat this lawsuit. The question is how. Get others advice and do lots of your own research. Read FTC opinion letters and Fair Debt Collection Practices Act at www.ftc.gov. This will prepare you for your fight. Best of luck!

 

[dlky]

cmorris,
Trust me, ever since these people began "harassing" me, research on the subject is all I HAVE been doing. I've been to the sites mentioned and many more, where I found much useful information. I just couldn't find ANYTHING to help me with the "Admissions" request. I really didn't even know where to begin, but truly, your answer really does make sense. Eventhough, I once did have a credit card charged-off, the people suing me for said card aren't the last known owners, have the wrong amounts, wrong dates, have never tried to contact me except to sue me and aren't exactly forthcoming about providing me with validation. It has occurred to me that these people are just scam artists looking for an easy win by default, but saying it out loud seemed a little too conspiracy theory for me. But, I certainly won't refer to the information about my actual charged-off credit card when answering the complaint and such for whatever this is. However, if anyone out there wants to put their two cents in, I could use all the help I can get. Thanks, dlky

 

[cmorris]

Just another thought:

Go to the courthouse and look up similar cases. It should be able to provide you with a possible outline of how to properly answer. There may even be cases where this CA is the plaintiff. This may be time consuming, but it can give you an inside look into what to expect. The court clerks are sometimes very useful with court procedures (especially if you are going pro se).

On the other boards you have visited, did you search for how to answer a lawsuit or ask someone to help? Sometimes you have to "bump" it a few times until the more knowledgeable people are on.

 

[cmorris]

ANOTHER idea:

This CO is not on your CR's. Get all of your CR's from the individual CRA's (about $9 each). This will prove that there is nothing on your reports to indicate that you owe the debt. When you were notified you sent your DV letter. They answered with a lawsuit. I really think the judge will be unhappy and make them prove it is w/in SOL.

Do any of the papers they sent you state this is for a credit card? You might want to read the Truth in Lending Act, where it defines credit cards as open accounts. Some CA's are arguing they are contracts (15 years). Also get as much case law as you can. Make sure when you go to court to have the FDCPA, FTC opinion letters, Truth in Lending Act, case laws, credit reports, DV letter/CMRRR card/receipt for CMRRR, etc.

 

[dlky]

ANOTHER idea:

This CO is not on your CR's. Get all of your CR's from the individual CRA's (about $9 each). This will prove that there is nothing on your reports to indicate that you owe the debt. When you were notified you sent your DV letter. They answered with a lawsuit. I really think the judge will be unhappy and make them prove it is w/in SOL.

Do any of the papers they sent you state this is for a credit card? You might want to read the Truth in Lending Act, where it defines credit cards as open accounts. Some CA's are arguing they are contracts (15 years). Also get as much case law as you can. Make sure when you go to court to have the FDCPA, FTC opinion letters, Truth in Lending Act, case laws, credit reports, DV letter/CMRRR card/receipt for CMRRR, etc.

ANSWER: Yes, I did get all three of my credit reports, and nada. I wonder if it will ever actually get to a judge, or if the CA will just enjoy sending me documents to respond to for years to come. Wow, before the judge makes them prove it's within the SOL, I hope he/she makes them prove it's my debt, and they are authorized to collect it first. Okay, they never did come right out and say it's a credit card, but their only attached "documentation" that they're using to exert their rights (Exhibit A) is a photocopy of a Discover Cardmember Agreement. I will be sure to take, if it comes to that, copies of everything under the sun that I can possibly come up with that pertains to my rights and their responsibilities under the law. ( I actually had intended to send them copies of these things with my Answer to Request for Admissions. Bad, good? Because I noticed that, as far as, the FDCPA (809(a)) there were certain requirments they have never complied with.) Still researching, too. Yes, it is hard to get an answer sometimes, you just kinda' have to post it until someone who wants to provide an answer and not simply an insult is around. But, again, I thank you. If you have anymore ideas, or anyone else...going once, going twice..... thanks, dlky

 

[cmorris]

If they have violated the FDCPA in anyway that you can prove, file a countersuit. How did they not comply with 809A? Can you prove it? At creditboards, there is a forum that helps you with the Answer and what to include/not include.

 

[dlky]

If they have violated the FDCPA in anyway that you can prove, file a countersuit. How did they not comply with 809A? Can you prove it? At creditboards, there is a forum that helps you with the Answer and what to include/not include.

ANSWER: I should check creditboards again, then. I didn't find anything for Answer to Admissions. As far as 809(a) their initial communication (or any that followed (Complaint, etc.)) did not contain any of the statements in connection with collecting a debt specified under this and since requesting validation pursuant to 809(b) have received no such communication to verify the debt. I suppose I have proof that I requested validation in the form of my CMRRR receipt, but that's about as far as that one goes. Also, I have read over the CCPA and the part that relates to open-ended credit, but I can't find anywhere in the "Cardmember Agreement" they provided where it ever says what type of account it is. And, wondering if anyone knows for sure which Kentucky Revised Statute pertains to an open-ended/credit acct. (regarding statute of limitations and actions to be commenced within five years) In my Answer to Complaint (part of which is in a previous post) I was using 413.120. But, it's so hard to read some of these things clearly. Do either of these apply? (8) An action upon a bill of exchange, check, draft, or order, or any endorsement thereof, or upon a promissory note, placed upon the footing of a bill of exchange. (10) An action upon a merchant's account for goods sold and delivered, or any article charged in such store account. Any info. appreciated....will also check creditboards and others again. Thanks, dlky