Must a Judge / Court honor

[Tink11464]

Hi everyone - this company just served a 2nd suit against me (there were 2 cards). They actually served my daughter (I was at work).

On the notice it says "if you intend to enter a defense to this complaint, you should so notify this office immediately". So I called (which is what I did before - excpet last time I didn't know to enter the SOL defense BEFORE court). So I called to let them know that defense and they said I don't tell them anything and I don't need to fill out anything - unless I'm countersuing, I present the defense at the hearing.

Sooooo, I can still present the SOL defense?? Hopefully??

 

[BoredAtty]

If you're being sued in the district court, it could be that the rules of civil procedure don't all apply.

 

[Tink11464]

It is a district court, so do I'm still hoping that maybe the SOL defense will be okay - - since the last activity is 3/03 on my credit report and they filed after 3/07. I think it may be retaliation for filing complaints with AG office and FTC.

Thank you everyone for all of your advice - - it's really nice to see that there are people out there willing to give this advice.

 

[tranquility]

Rule #1, never follow the legal advice of your opponent.

Other than that, look to BoredAtty's post regarding a new matter.

 

[Tink11464]

Uh oh...

Rule 1030. New Matter.

(a) Except as provided by subdivision (b), all affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading ‘‘New Matter.’’ A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading.

So - with the 2nd case - I should go in and rather than countersue for harrasment, etc... file as a new case (or new matter??). I should have taken some darn law courses!!!!

 

[BoredAtty]

Hi everyone - this company just served a 2nd suit against me (there were 2 cards). They actually served my daughter (I was at work).

On the notice it says "if you intend to enter a defense to this complaint, you should so notify this office immediately". So I called (which is what I did before - excpet last time I didn't know to enter the SOL defense BEFORE court). So I called to let them know that defense and they said I don't tell them anything and I don't need to fill out anything - unless I'm countersuing, I present the defense at the hearing.

Sooooo, I can still present the SOL defense?? Hopefully??

After reading tranquility's post ("never follow the legal advice of your opponent."), I realized I may have misunderstood who you called. Did you call the court, or did you call the company that is suing you?

 

[Tink11464]

I called the court in response to the notice of hearing they sent me.

 

[BoredAtty]

So - with the 2nd case - I should go in and rather than countersue for harrasment, etc... file as a new case (or new matter??). I should have taken some darn law courses!!!!

A "new matter" is not a new case. Apparently it's a reply to another pleading. In your case, it's an answer to a complaint that says "the allegations in the complaint may be true, but...."

Rule 1017. Pleadings Allowed.

(a) Except as provided by Rule 1041.1, the pleadings in an action are limited to

(1) a complaint and an answer thereto,

Official Note

The term ‘‘complaint’’ includes a complaint to join an additional defendant.

(2) a reply if the answer contains new matter a counterclaim or a cross-claim,

(3) a counter-reply if the reply to a counterclaim or cross-claim contains new matter,

(4) a preliminary objection and a response thereto.

 

[GulfBreeze]

From what I could find - - It says "When does my Statute of Limitations start ticking? Use your credit report as a reference. Your credit report will tell you the date of the last activity for your account."

My report says 3/03.

Some judges don't recognize credit reports. However, in their initial complaint to the court (or eventually as submitted as evidence), they will have to attach proof of the debt such as records which will be entered as evidence supporting their claim. This is where you can tell the court that according to their records, the SOL began at a certain point (last activity via payment or charge in most states, or the time the account went delinquent with missed payment in some). Otherwise, without any of these evidence, you could submit your report and hope that the judge will view that date and certainly view it as oral sol without supporting exhibits to back their claim of written...

http://www.courts.state.pa.us/judicial-council/local-rules/index.asp

 

[Tink11464]

I'm hoping that they think I'm an idiot and won't know anything about the SOL and hopefully whatever they have as DOLA will correspond with the credit report. I knowww - - it's a lot of hoping and wishing on my part. Unfortunately - when you can't afford a lwayer - and I'm near the county seat (where their fees are outrageous!), you have to try and do the best that you can.

 

[Tink11464]

Now - when I go in to court - i am assuming that they will present their case and then the judge will ask me how I plead (?), do I state "I am pleading the affirmative defense of the expiration of the statue of Limtiations"?

Thank you - I am just trying to see how I would phrase it...

 

[GulfBreeze]

Now - when I go in to court - i am assuming that they will present their case and then the judge will ask me how I plead (?), do I state "I am pleading the affirmative defense of the expiration of the statue of Limtiations"?

Thank you - I am just trying to see how I would phrase it...

If no evidence is presented to support their claim with records.....
"Your honor, I do not recall having this account, but if it was mine, the SOL has expired...."

otherwise, if they do have evidence.....
"Your honor, based on their claim and evidence, this case has a affirmative defense of expired SOL according to our states statute ##### and ask that it be dismissed"

 

[Tink11464]

GulfBreeze - Thank you very much for all of your help. It's truly appreciated - I will definitely let you know how things turn out