A friend of mine received a lawsuit for a debt that she believes is well beyond the SOL. So, I helped her write her answer. Basically, she doesn't remember having the account or owing the debt so we responded by stating that she lacked sufficient knowledge to confirm or deny therefore she denies. We also stated the affirmative defense of beyond the SOL since it was not reported on any of her credit reports. We figured, since the SOL is 6 years and the credit reports report for 7 years, it must be beyond the SOL. Despite stating such, she was assigned a court date. I suspect this was so because she didn't attach any proof to the answer showing it was beyond the SOL but I thought, it was the Plaintiff's job to show it was NOT vs. her showing it was. Regardless, wouldn't you suggest the next step be a letter to the collection agency, as part of discovery, asking for all original account records showing it is beyond the SOL and then a motion to dismiss before the court date?
-A good post on statute of limitation. -Statute of limitations IS NOT A PREVENTION to a lawsuit, IT IS A DEFENSE to the lawsuit. -You can send a "time barred debt" (out of SOL)letter to the plaintiff before the court date in hopes of getting the court date dismissed. BUT it is much more fun to just show up, AFTER HAVING FILED A COUNTERCLAIM, and telling the judge that THEIR suit is "time barred" AND THEY WERE AWARE OF IT, and seek damages in your counterclaim. -THE COUNTERCLAIM (actually just a suit in itself) is for violation of FDCPA 807 (2)(A) AND (5) http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm#807 "(2) The false representation of -- (A) the character, amount, or legal status of any debt; or " "5) The threat to take any action that cannot legally be taken or that is not intended to be taken."
Ok, hiding; Since you brought up 807(2) in this sense, I wanted to get your opinion on the following... In a validation letter, I requested proof the verbatum 807(2); the debt is definately time-barred (and it turns out was a mass-fraud case, in which the seller of information was prosecutted by the FTC, and shut down for). Now, if we request proof of legal status, and they refuse to state the legal status (time-barred) is that a misrepresentation.
"In a validation letter, I requested proof the verbatum 807(2); the debt is definately time-barred (and it turns out was a mass-fraud case, in which the seller of information was prosecutted by the FTC, and shut down for)." -IF this is fact, it would be public info (meaning its available to the reporting agency and the debt collector. -SO, if you sent a DISPUTE letter to the reporting agency, if it listed currently OR EVER WAS, DISPUTING the legal status, and including the info about the fraud etc, they would HAVE to conduct an investigation. -If they are NOT reporting it, then showing up in court, with the info about the fraud, and stating the time barred debt defense, it would see reasonable the judge would have to rule in your favor -If you are interested in suing the collection agency, then sending them the same info before court, along with summons and complaint, will almost seal their coffin if they still insist on suing "Now, if we request proof of legal status, and they refuse to state the legal status (time-barred) is that a misrepresentation. " -Yes it would, IF THEY WERE REQUIRED TO RESPOND. But it seems the validaiton period is past UNLESS the summons and comaplaint WAS the initial communication.
