Need help with my rights, a friend is being harassed trying to find me

Let me make sure I understand your post: 1 - You live in CA 2 - You last paid 5 years ago 3 - They've been disclosing info to friends & family Right? If I recall correctly, California's statute of limitations on litigating a debt is 4 years. This means that if they file suit more than five years from the date your account went delinquent, then you can raise the statute as an affirmative defense in court. Let's say you made your last payment in November 2005, and your next payment was due in December 2005. After December 2009, you would be able to raise the SOL defense. As for privacy, disclosing private information is a huge no-no. This is covered under the Fair Debt Collection Practices Act. However, even if it's the original creditor trying to collect (in which case the FDCPA would not apply), I would imagine a lawyer would have a field day requesting damages for all sorts of "invasion of privacy" matters. Double-check your dates. It sounds like you have a case worth discussing with a lawyer. In some cases, you can sue not only for damages, but for recovery of legal costs as well, meaning you wouldn't even have to pay. This is something you should definitely take up with an attorney well-versed in credit matters.

 

If you are doing the suing, legal costs can be claimed as damages.

 

Are you saying that they'd simply fabricate a date of last payment? Because that's the sort of thing that a lawyer isn't supposed to involve himself in. The farther away from the true date one gets, the less likely the lawyer could later claim that it was a good faith error or he really thought that the SOL defense didn't apply.

Whether the date is correct or not, the plaintiff will likely provide an affidavit that claims that a certain date of last payment is the actual date of last payment. The court might look at it and then look at your affidavits and decide if there are any material issues left for trial. If you don't have any relevant affidavit, most people provide the court essentially with nothing, it isn't their word against yours, it's their word against you said nothing.

Dumb Bob hopes you can see how JDBs keep winning summary judgments.

 

Now why would you do that? If you can prove your debt is out of stat filing as an affirmative defense is about the last thing I would even dream of doing. I'd far rather use a graduated denial to get my foot in the dorr then immediately file motion to dismiss. or even better a motion to summary judgment. Motion for summary judgment would be a more convoluted pleading but if properly executed might be more effective because the result would force the opposing attorney to show cause why the defendant should not be granted a summary judgment. If counsel for the plaintiff cannot do that then the court has no choice but to grant summary judgment to the defendant.

I wouldn't doubt that what you say here might turn out to be true but I don't think I would want to try to bring invasion of privacy when their violations of FDCPA would be far easier to win on and bringing the invasion of privacy as a secondary cause of action would then be much easier.

Yes, I'd agree with that but before I would hire one I'd want to get a good look at his history for the last couple of years or so first to see how many wins and how many loses the attorney might have in similar cases.

I've often had people tell me about some great attorney I should go see and upon checking them out I found that they were useless or worse.

 

If it's in small claims -- as a $3,000 claim may very well be -- none of that will matter. I can't speak for other states, but around here, small claims courts don't accept motions. You show up, state your claim (or defense) in person, and the judge renders a decision on the spot. One day, one session, that's it.

Now, as far as how exactly you'd want to defend yourself, that's up to you. If I had a solid SOL issue in small claims, my opening line to the judge would be along the lines of "Thank you, your honor. I have many reasons why I believe the plaintiff's claim is invalid. One of those reasons is that even if all other aspects of the plaintiff's claim are true, the statute of limitations on this matter has passed as per (my state's SOL citation)." Call it a condensed graduated denial if you like, but there's no reason to spend valuable time (my time is priceless) going on about failure to state a claim and improper documentation and any of the other suggestions I've seen. Those may all be valid claims, but ultimately, a strong SOL will easily overpower, even if the remaining claims were determined to be in the plaintiff's favor.

For example, I personally have been accused of having a large delinquent credit card debt to a particular company (I'm leaving out details because you never know who reads here). Even though I believe this to be bogus for about five million dozen reasons, I have bank account statements (from myself), account statements from the OC, a history of written documentation from the OC and all subsequent CAs, and a printed stack of CRs from the last few years, all confirming the last date a payment was made to this account. And not only is it out of SOL in my state, but it's even further out of SOL in both the state of the OC and the state set forth under the "choice of law" provision in the agreement (which I also happen to have). The amount of this alleged debt would put me outside of small claims court, but deep down inside, a part of me hopes the CA comes after me in court. Although no case is ever bulletproof, mine -- along with my mountain of evidence -- is about as good as one can hope to be.

As for the "invasion of privacy" thing, I pointed out that such a concern would be addressed when the FDCPA doesn't apply. For example, if we're dealing with the original creditor.