To summarize, I was served a summons in August of 2009 by Mann Bracken for a case involving Arrow Financial. Arrow Financial is claiming I entered into an agreement with them to pay back money owed on an account they bought. I never entered into any type of agreement with them, nor have I ever spoken to them on the phone. I answered the summons as instructed, either denying the statement or stating there wasnâ??t sufficient evidence to support the claim. I have admitted to nothing. I also included in the affirmative defenses that the SOL had expired. In NC the statute is 3 years. My credit report shows the last payment made to the account in question was April 2006 (I believe it was even before then). The summons was filed June 2009. In November 2009, I received a Discovery Request from Mann Bracken. While the discovery still listed Arrow Financial, it listed the name of a HVAC company instead of the credit card company as the company being represented by Arrow. This is a company I have NEVER dealt with or even heard of. To the response of the discovery requests, I listed the answer to each â??I do not now nor have I ever had an account with this companyâ?. Last Friday, I received a letter stating I was being taken to court February 15th. Up until now I have not used a lawyer. I contacted a lawyer last week who informed me he couldn't handle my case because it's not in his jurisdiction. HOWEVER, he informed me that Mann Bracken ceased to exist as of last week because their parent company filed Chapter 7. He recommended I file a motion to dismiss based on the SOL and the fact that Mann Bracken is no longer. My questions are: 1 - Do I mention both the SOL and Mann Bracken ceasing to exist? 2 - Do I need to attach my credit report showing when the last payment was made on the card or not disclose the last payment date at all? 3 - I have news articles about Mann Bracken closing in NC that I will attach. Anything else? Thanks in advance! Thanks!
I wouldn't bother mentioning that Mann Bracken no longer exists. Just concentrate on the SOL defense. Your credit report probably won't be accepted as proof of last payment date. You need cancelled checks or even better yet statements from the original creditor. Get those through discovery if you have to. Why would you do that? Statute of Limitations is an unbeatable defense if you go about it the right way and can prove what you say with something else besides a credit report.
Not to sidetrack, but a procedural question: Would checking account statements from the period in question be worthwhile? I'm sure the other party could argue that "he might have made payments through another source", but I would imagine that the burden of proof is now on them to prove as much.
