Hello all, first off, this forum is great. For the novices such as myself, this is the absolute best thing -- a community that helps itself to ensure people are protected when it seems there's little to no hope. I'll save the trouble of describing the background, save for the facts. I opened a line of credit at a major retailer back in August of 2002, here in California, where I still live. It was then placed for collections with a CA in Feb of 2005. Note, this wasnt a credit card, but a line of credit specific for that store, on a store "card". I have read that the SOL on credit cards is 4 years in California, and if this counts as a credit card, then shouldn't the SOL have run out? More on that later.... So now, 3 years after being trasnferred to the CA, I've been served by the CA. The summon was processed in court on Dec 3, 2007. I received the summons today (Jan 11th, 08). The summons states that I must respond within 30 calendar days. I do have a couple of witnesses that I was only served today -- in fact, it was left on my door, not actually delivered to me. My neighbor and a worker here in my apt complex saw the server leave it on my door. So here are my questions -- am I in trouble for not having responded within 30 days, even though I haven't been served until now? Does it matter that I was not served personally? The original debt was for something in the area of $500, yet this CA is claiming that the debt is $1491, plus interest at 10% annually since Feb-05. Where do I go from here? Should I contact an attorney, or attempt to deal with the CA personally? Thanks in advance to everyone. You have no idea how grateful I'll be for assistance.
Also, the CA in question is LVNV funding, and I've read that they cannot report the collection amount as a tradeline on my credit report, which it is currently. Should I ask for this to be corrected as well? I have access to my credit reports.
I have also found this: http://www.ripoffreport.com/reports/0/264/RipOff0264653.htm#277645 It seems that there are hundreds of complaints against LVNV with the FTC, as well as their proxy org, the 'Zwicker and Assoc.' law firm, which I recall leaving me a voicemail at one point. Since I received a legitimate summons from court, I'm assuming that my case is legit, according to the court. Is this right?
You have to respond to the Summons. The time for doing so begins to run from the date you received it. Consulting an attorney may not be a bad idea if you have no idea what you're doing. You need to respond by making a general or special appearance which can include filing an Answer, Motion, and Dispositive Motion. Answers are fairly easy to format and can be found herein. If you do not appear, a default will be awarded against you. If you need an attorney, go to NACA.
Ok, I understand I need to respond to the summons. In all honesty though, affording a lawyer is well out of my ability (I'm pretty broke). Something tells me it would probably be cheaper if I could settle with the CA than go to court. Is it too late to settle? And again, since the debt seems to be outside of the SOL, is this still valid debt one way or the other? Thanks again everyone.
Follow up notes -- the summons papers sent did not attach any copies of original agreements or any proof of debt. The summons does list however that the last payment made for this credit was on 1/13/2004 (exactly 4 years ago this Sunday). Does this place me outside the SOL????
File a Motion to Dismiss on the basis that the matter is time barred. If denied, file that in an affirmative defense in an Answer. The fact that they have no proof can be used at trial to strike their allegations within the Complaint.
If I understand you correctly, then it does seem that I'm out of the SOL? Sorry to harp on, just trying to make sure that I'm understanding correctly. It doesn't matter that the summons was filed in court back on Dec 3rd while still within the SOL???
I don't know if the statute of limitations has expired. You would determine if four years has elapsed since the date of last payment. If so, it's time barred. It doesn't matter when the "Complaint" was filed. It matters when you are served with the Summons and subsequently, when the return of service is filed with the clerk of the court. Any other scenario would defy equity and logic. In other words, you cannot be expected to file something until you receive it and thus, you have however many days to file an appearance thereafter your notice is received.
Service Apex may be oversimplifying. I am an attorney, but not in California. There will be a statute defining when the statute of limitations stops running. It may be when the complaint is filed. It may be when the complaint is given to a process server. it may be when you are served, but that is not the law in my jurisdiction. You need to file an answer, and state as an "affirmative defense" that the claim is barred by the statute of limitations. That way you don't waive the defense. If you want to settle, I would still file and answer, and then negotiate. If the CA gets a default and default judgment against, you, they will have far less interest in a settlement.
CA Code of Cvil Procedure 360 No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby, provided that any payment on account of principal or interest due on a promissory note made by the party to be charged shall be deemed a sufficient acknowledgment or promise of a continuing contract to stop, from time to time as any such payment is made, the running of the time within which an action may be commenced upon the principal sum or upon any installment of principal or interest due on such note, and to start the running of a new period of time, but no such payment of itself shall revive a cause of action once barred.
and 360.5 No waiver shall bar a defense to any action that the action was not commenced within the time limited by this title unless the waiver is in writing and signed by the person obligated. No waiver executed prior to the expiration of the time limited for the commencement of the action by this title shall be effective for a period exceeding four years from the date of expiration of the time limited for commencement of the action by this title and no waiver executed after the expiration of such time shall be effective for a period exceeding four years from the date thereof, but any such waiver may be renewed for a further period of not exceeding four years from the expiration of the immediately preceding waiver. Such waivers may be made successively. The provisions of this section shall not be applicable to any acknowledgment, promise or any form of waiver which is in writing and signed by the person obligated and given to any county to secure repayment of indigent aid or the repayment of moneys fraudulently or illegally obtained from the county.
.....so if I get this right, the contract can only be "renewed", so to speak, or continue to be valid unless they have my agreement in writing, and if they dont, then the debt continues from the original creditor. Is this right? If this is right, I plan to proceed to the following: 1) Verify with the clerk that the case number is valid (I received the summons on Friday night after coming home, courts open tomorrow morning). 2) Answer the summons to the CA and the Court with an answer that this is a time barred issue and ask for it to be dismissed. Am I missing something in here? Thanks EVERYONE for all of your help, I went from spazzing out on Friday night (I've never been to court or dealt with court matters EVER), to sensing that I, as a consumer, actually have some power and defense for myself. Thank you everyone! My eternal gratitude to you all!!
You have it now. I will say that you may want to file a Motion to Dismiss instead of an Answer. Essentially, you just claim it's time barred. If it is denied, then file an Answer. You don't have to do it this way but, it is preferrable.
Agreeing with Apex, file a Motion to Dismiss. Call opposing counsel, tell them you have filed a MTD, ask them to give you five days that they can met you in court. Once you gotten their calendar, call the Judges' assistant tell her/him that you want to set a date for Motion to be heard. Once that is done, prepare your Answer, include the expiration of the SOL as an Affirmative Defense and include it as a counter-suit against the CA for FDCPA violations and Calf. specific laws too. Its not good form, but you also may have a cause of action against the CA's attorney for not doing his/her due diligence. The attorney should have closely reviewed the file, determined that the file was past SOL and told his client to eat it.
Awesome guys! Fantastic! I'll set about these things today, thanks again to everyone! I'll update with how it goes.
Sorry guys, a final question for you all now that I've begun preparing my MTD. I would hate to file this thing if I overlooked something that I thought of last night. Here's my rough timeline of events: Jan 2002 - Credit line is established Jan 13 2004 - Date of Last Payment Feb 2005 - Debt referred to CA Dec 3 2007 - Date of motion in court by CA Jan 11 2008 - Date summons served to me Jan 13 2008 - Expiration of SOL on debt to original creditor I may not have been clear about this point in past questions -- It has been just over 4 years since my last payment against this debt (unfortunately). However, the motions filed in court against me were about 5 weeks ago, before the expiration of the SOL. My question is: does the fact that they filed a motion themselves within the 4 years make the SOL irrelevant? I was also served on me 2 days before the SOL expired; does that also make the 4 year timeline irrelevant? Thanks again. I'd just hate to go through with something full force only to be confused on a critical point....
If the suit was filed before the SOL clock ran out, then it's not out of the SOL. However.... I'm not clear...does the SOL "clock" start running on the date of the last payment or when the account goes delinquent (e.g. 30/90 days after last "payment due" date that was never met)? I remember for bankruptcy filing, I couldn't do anything (e.g. pay on an account) for 90 days prior to filing, but does that same time frame apply to SOL? I don't think the SOL clock would be on the date of the last payment unless the last payment did not bring the account current. Sorry to muddy the waters here, but this is something I've not seen a clear explanation of.
