I paid in cash now they're suing me???

[mapport]

i live in texas, i was a member of the vol. fire dept. We were able to get text pagers as an "extra" back in 1995 i met my boyfriend (now husband). I had pagers for both of us, we moved so i had to leave the fire dept.(early 1996) Before i could turn in the pagers both of the were stolen out of my car (we knew who, but had no proof)So i contacted the dept. and was informed that if i did not pay for the pagers they would sue me. Being a single mother at the time money was tight, i got my income tax return and was able to give them $300 cash, my mother then wrote 3 hold checks for $50 each (these checks DID clear the bank) to cover the cost of the pagers & remaining bill. Well a month ago i was served with papers at work saying i was being sued for a cell phone & bill. i thought there was a mistake so i showed up in court, and the fire dept. informed the judge that it was not a cell phone, but the pagers (the made a mistake when filling). I explained to the judge that i had paid for the pagers, in fact the treasure of the fire dept. had come to my place of work & picked up the money. they had no record of the 3 checks worth $150 being paid either. I have to go back to court next week.

The man I gave the cash to remembers getting it but does not remeber the amount & says he's not going to help me?
I can have him subpoenaed, but it will cost & if he does not know the $ amount will it help me?
Also we are tying to get copies of the checks from the bank, but do to the fact that it was so long ago we are having trouble.
How far back can they sue & what are my chances of not having to pay again?
Also should i consider a counter suit?
Do to the fact that the bank is charging me for the information, the subpoena fees, lost wages, and the fact that i was sued for something that i had already taken care of?

 

[JETX]

Texas has a 4 year statute, so it is possible that the SOL has expired. You need to compare the date the lawsuit was filed against the LAST date of action on the 'account' (what was the date of last check or payment made). If more than 4 years, they are probably out of luck.

Now, assuming that the SOL is still valid, it sounds to me like you will need to have sufficient proof to show the court that you have in fact paid for the missing property. This can be in several forms.....
1) copies of checks.
2) In person or notarized statement from the 'receiver' of the money. Even though he may not remember the amount, his remembering that you paid 'something' in cash would support your creditibility of payment.

Further, the Fire Dept. will have the burden of proof. That means that they will have to PROVE to "a reasonable and prudent person" that their version of the facts is more than likely true. My questions: can they PROVE that you are liable in the first place? Can they PROVE that you never returned the items?

Further, since it is YOUR defense that the items were paid for, you will have the burden of PROVING that the cash was paid and that the checks were cashed.

Finally, to answer your specific questions:
Q1) "The man I gave the cash to remembers getting it but does not remeber the amount & says he's not going to help me? I can have him subpoenaed, but it will cost & if he does not know the $ amount will it help me?"
A1) Yes. You claim that you paid him the cash. If he can confirm receiving a cash payment, even though he may not remember the amount, it would help your credibility.
Q2) "Also we are tying to get copies of the checks from the bank, but do to the fact that it was so long ago we are having trouble. How far back can they sue"
A2) Four years (see above).
Q3) "& what are my chances of not having to pay again?"
A3) Real good, if you lose.
Q4) "Also should i consider a counter suit? Do to the fact that the bank is charging me for the information, the subpoena fees, lost wages, and the fact that i was sued for something that i had already taken care of?
A4) Depends. If your answer to the original summons included that, upon the event that YOU win, you pray the court to award you with costs, etc. the court will already award the allowed costs. If you didn't answer properly, then you might consider a cross-action or a later suit.

One other thought... have you considered subpoena'ing the Fire Departments records, including all property reports, payments received, bank records, etc. for the time in question?? You have every right to them to defend yourself.
Hit them with a "Subpoena Duces Tecum" asking for all books, records AND PERSONS knowledgable about the issues at hand. ("SUBPOENA DUCAS TECUM: a process commanding a witness who has in his possession or control documents or papers pertinent to the issue of a controversy, to produce them at the trial of the case."). This would kill two birds (papers and person) with one subpoena!!
See: http://sago.tamu.edu/legal/Subpoenas/texsub.htm