My court date is fast approaching.Could someone please tell me if the lawyer will have exactly how much I owe on the old credit card.Do they have to submit records to the judge to prove how much I owe?I have copiesof my credit report that would show the debt beyond sol, but they can say it's not past sol.I know the balance is not what they say it is, but I don't have any records to prove otherwise.Thanks for any advice
What is your specific claim in your lawsuit? If you have copies of your credit reports that show the debt has been re-aged then that is your proof if that is what you are suing for. Is this a CA or OC? If CA, did you request validation? If so they should have provided you the information you requested when you requested it instead of wasting your and the courts time. Is this one of your cliams in your lawsuit? Please be more specific so the board can give specific suggestions/advise.
The court date is for a credit card company being represented by a lwayer.I did file a response because it i over the sol, but the judge in my area does favor settling old debts.Therefore,when I filed my answer I did disagree with the amount,etc.In court will the CA have to prove what I owe,charges,etc?The amount they say I owe is so wrong.I do have my credit report which shows the debt last reported in 6/95,and charged off.(opened in 2/94)What will happen in court?Do they have to bring documentation that I owe it and exactly how much?I can't understand why they are taking me to ourt when all 3 of my credit reports show this debt is past sol.Any input would be greatly appreciated.Thanks
Yes. I would think that they would have to prove the accuracy and validity of this debt. That would include a full accounting of the debt to show how they reached the figure they say you owe. If they cannot provide this then why should you pay. I think at a minimum a judge will require this of them.
I dont know if it is too late to do this, but if it is reported wrong on your bureau, I would have counter sued for violations of the FCRA. Something to bring with you to court anyway.
Here is what happens. They will have to show the judge how they arrived at the balance. But, if you disagree with their accounting the burden then will shift to you to convince the judge that the CA is in error. How did you respond to the summons? Did you raise the SOL issue in the response? If you have solid proof the debt is out of statute, I think I'd hang my hopes on that as opposed to accounting.
Statute of limitations is an affirmative defense. This means you must raise it. Further you must raise it in your initial answer to the complaint or you may waive your right to use it. Here are some special affirmative defenses in regards to debt collection suits. 1. Failure to Comply with Fair Credit Practices 2. Failure to Comply with Fair Credit Reporting Act. 3. Failure to comply with applicable State Banking laws and requirements 4. Failure to comply with applicable Federal Banking law and requirements 5. Denial of personal guarantee by way of insertion of title with signature 6. Denial of intent to accept terms of Plaintiff Bank by marked modification 7. Terms and or rates of interest and payments were not in compliance with either state or federal restrictions. 8. Denial of guarantee by way of notice under New York State Law. 9. Defect in documents upon which the Plaintiff bank relies by law. 10. The Plaintiff failed to mitigate damages by selling out collateral on a timely basis and/or at an appropriate price. 11. The Plaintiff failed to comply with normal and accepted business practices 12. The Plaintiff was not in compliance with the requirements of the commercial code These are in addition to your standard affirmative defenses: 1. Failure to state a cause 2. Insufficiency or defect of service 3. Latches 4. Pari Delicto 5. Unclean Hands 6. Violation of state or federal statute 7. Failure to name all necessary parties 8. Lack of jurisdiction and/or venue 9. Accord and satisfaction 10. Fraud 11. Statute of Limitations and/or other time limitations 12. Failure to comply with applicable state or federal law 13. Estopple or collateral estopple 14. Negligence 15. Omissions 16. Bad Faith Acts 17. Contrary to Public Policy 18. Unenforceable as constitutes an illegal practice 19. The Plaintiff failed to mitigate damages
Thk you for sharing all this fantastic information and advice.I used that the debt was past the sol as my affirmative defense.I filed with the court house nd sent it registered.The last time I was sued for this debt and taken to court,I replied the same way.The lawyer offie and urt stuff went away for about a year.Now the account has been resold and I'm going through itagain.Hopefully,they'll back out of the court date.(doubt it)I was hoping that I could see their evidence before going to court or getting an adjournment until a lawyer reviews it.I was hoping that I would get to look at their evidence and consult with a lawyer,ya know?If they get a judgement would they automatically lien my house or can I bring my monthly bills and have them set up a garnishment of my check?I'd rather not have them lien my house for 4,400.As always,thanks in advance.
If this is higher than small claims court - you can ask for "discovery" (i.e. what documents they have). If no one answers before I get home from work - I will look up a website that has sample pleadings. I would suggest going to CreditCourt.com and going to the forum. There are some links there - and I think the one I want to send you is there. You have a right to see what they have for evidence before the court date IF it's not small claims court. If it IS small claims court - I'd write and ask for validation of the debt by certified, return mail immediately. I'm sure others will have something to stay on here. Mommy2cats
Thanks Mommy!I'm still trying to figure out which link I need.If you think of it could you put a link.Thanks!This is definitely a Supreme Court case in my county.I called the court house, but they wouldn't tell me anything, so I drove their and there is nothing new in my file.The only thing in there is the summons and my answer.Is that a usual practice?
A Supreme Court Case? What do you mean by that? I see a TON of violations here. Using the legal system to badger a post SOL debtor. Continued collection activity. Unfair & deceptive debt collection practices. This may be a great case for damages. KEEP VERY ACCURATE NOTES.
It was filed in my county's Supreme court.The amount I owe is too big for small claims.I also did get sued by the same lawyer for another collection agency for this same debt.I sent them my response-SOL and heard nothing for months.Recently,the same debt,same lawyer with new collection agency sued me again.Summons was on the door.I sent my defense again and then was sent a paper that I would be scheduled for a tentative court date.I also find it interesting that on my credit report it was last rported in 95, but it's showing that I'm currently 90 days late as of 2/2001 with the original creditor.This account has been sold at least three times since default.Isn't that against the law too?Thanks again for any input!
Did everyone miss this??? CHARGEDOFF IN 6/95....let's add 7 years...that brings us to 6/02, last time I checked it was 9/02 almost 10/02. Is this a recent report or dated before 6/02???? Do you have a recent report? Is it still on there? OC AND CA(s)?? I'd call an attorney. Anyway to ammend your original response? Can that even be done?
You have a number of issues going on here. I think you should go see an atty. for about half an hour, and take all your paper work. There are, in most counties, provisions made for those with limited resources. Or even if it cost $50 for a consult I'd do it. And I'd do it too Roadrash. You may have one heck of a lawsuit here. If you're sure this is post SOL, (meaning NO activity for the statutory period) then there's no way they can collect, so DON'T WORRY ABOUT YOUR HOUSE. Not only that but it sounds like this debt has already been adjudicated. They simply cannot RE-SUE you for something for which they lost a year and a half ago. Sounds like a clear cut case of the old CA selling the account to an unsuspecting newer CA, which is now trying to collect. CA2 may have no idea this case has already been litigated. Would they do that? YOU BET THEY WOULD. They'd sell a NON-performing acct (one frozen by val demand, or lost lawsuit, etc.) in a heartbeat to an another nitwit CA without telling them the truth of the acct. They would do that just to make a few dollars on an acct. for which they know is worthless. That's the kind of people we are dealing with. Might as well get SOMETHING out of it, - kinda thing. See? But then you say it's the same atty. Shew (headspinning) - Go see a lawyer. There may well be some money in this one for you. Keep us posted.
I think you have to mean Superior Court - not Supreme. Supreme Court doesn't hear individual cases - it's case law they usually deal with - or appealled cases that have laready been heard in lower courts. I'll go see if I can find that link. Mommy2cats
