Greetings all! I have been a lurker here for quite some time, even before my DH had a summons from a CA's lawyer (it says they are an "assignee", but CR states that debt sold) appear--which leads me to a short story and question. 1) Summons arrived 4/06--tons of holes in the summons, which have been addressed. 2) Answer sent 5/06 3) Calendar call set for 11/06 4) Defendant attended 5) Plaintiff did not attend calendar call---Clerk said plaintiff faxed "something" at the end of court that day and we would be notified. Defendant did not get any correspondence as to why plaintiff wasnt there. Last Thursday 2/07 DH received a Motion for Summary Judgement. In this Motion is a affidavit concerning 2 exhibits. Only one exhibit attached. An old statement dated 12/03. Now, in the plaintiffs complaint they say that the account was charged off in 8/02 and CR also states a charge off, ,but no date. Keep in mind there has been no re-ageing on this account. My question is: Could there possibly be a statement from the OC dated 12/03 if they charged off the account (by the plaintiff's admission) in 8/02?
It is situations like this where it does pay to have a lawyer. Without some of the finer details, it looks like you caould have beaten this one when the plaintiff did not show. To answer your question, it is possible for the OC to have a statement dated 12/03 even if the account was charged off in 8/02. It may be that the OC retained the account (did not sell off the debt) until a later point. The OC can issue a statement as long as they own the account. I don't know how large a sum is involved here, but this is a tricky one. You should look at the Statute of Limitations for your state, and ensure that the legal proceedings were initiated in time (before the SOL ran out). Most likely they hurried to file before the SOL ran out. IF...the SOL did run out, remember it is up to you, the Defendant, to raise this as a defense. The judge does not have to bring this up, you do. I would also look at what the "2nd exhibit" was supposed to be, you may be able to have this Motion thrown out. Again, it is a value call for the cost of a lawyer, versus paying off the debt owed. Remember, you have a right to see and review all documents the Plantiff has entered into the court. This includes the faxes you mentioned. But you do have to request them, the judge is not going to help or coach you in this case. There are a lot of items to research here, does they CA have the right to conduct business in your state? Is the CA have the proper paperwork? I recommend that you consult an attorney, if you can.
Thank you so much for your reply. I appreciate it. Here is some further news and good news at that. I BEGGED DH to call the court clerk this afternoon and ask about the Plaintiff not showing up for the call. Im so glad I did. The clerk was aware of the situation and said the plaintiff never sent anything in regards to why they didn't show (they called and said they would fax--never did) and since the nimrods filed for a motion it was brought again to their attention that they hadn't filed the dismissal the judge signed yet--she said he signed a motion to dismiss on the basis of wanton prosecution. Im not sure why they took this long and had to have a "reminder" to file it--its been since November. So, we are still going to answer the Motion to CYA and hope to have it fully resolved by the beginning of next week. It goes to show--never give up and the majority of these CA's hope you will not answer or show up to proceedings.
I would speak to the Court Clerk again, and ask what you possibly could do to have this case dismissed based upon the actions (or lack of!) by the CA. Often the clerks are a wealth of information, and can tell you exactly what you need to do, and file, etc. It seems like you have the advantage here, I would press it now, before the CA has time to regroup. You may also want to call any legal clinics in your area. I'm sure someone can give you some legal advice without any charge. Good Luck
