I need advice please. I am going to court in two weeks and I really could use all the help I can get. I am starting to get nervous about the whole thing when at first I was fine with this and felt confident that the case would be dismissed in court. This case has been filed in small claims court. My DH is being sued by a credit union for a mastercard that was charged off for the amount of $996.00. The account was recently turned over to their attorney. When I received the Complaint, I requested validation from their attorney (thought I'd try to see if they would respond). I then filed my Answer using sol as an affirmative defense. I know a payment hasn't been made since at least 1999. I felt confident that we would have no trouble having the case dismissed. Today I received this response from the attorney: Dear Mr. xxxx Please find enclosed the Plaintiff's Response to the Defendant's Original Answer. We agree that the Statute of Limitations in this case is four (4) years which is why the petition filed against you was filed within that time frame. However, I believe you may be using the incorrect dates to calculate the Statute of Limitations. According to the O'Conner's Civil Practice & Remedies Code, Code CPRC section 16.004(c) on an open or stated account, the limitations is four (4) years from the date the cause accrues which is the day the dealings in which the parties were interested together cease. Although the original loan date is November 30, 1994 you defaulted in paying on the loan on November 8, 2000. The Statute of Limitations begins to run on the date of default and the Plaintiff's Original Petition was filed October 21, 2004, which is within the four (4) years Statute of Limitation. For the above reasons we will not be dismissing this case as we have filed within the allowed time of four (4) years. If you should have any questions regarding this account, or wish to discuss other option, please do not hesitate to contact our office at xxx-xxx-xxxx. They enclosed a Master Card Agreement, a computer printout of part of the account and an affidavit from an employee of the credit union They claim that the loan defaulted Nov. 2000. In this letter they sent me a printout of this account (Exhibit #1) This tells me nothing. The date on this summary of account is 3/26/01. This tells me nothing. Does not show account activity or last payment. It only shows the date of original loan, amount of original loan and what the monthly payment is. What can I do? What do I say in court? One of my credit reports lists that this account was charged off in Nov. 2000 but that is not the date of last activity. Thank you in advance for any and all advice you all have. This board is a great support! I truly appreciate you guys.
It looks like they are trying to use the charge-off date as the date of default. Since they have provided no statement showing your last payment, they have provided no documentation in support of their claimed date of default. In particular, they have not provided a statement claiming to show your last payment. What documentation do you have showing your last payment? Do you have your last statements showing payments? Have you specifically requested that they provide a copy of the last statement showing a payment? If you actually defaulted in Nov. 2000, they should be able to provide an Oct. 2000 statement showing a payment.
Unfortunately I no longer have any statements that far back. I did request the entire payment history and contract in the validation letter. They only sent me a partial printout. I don't think the atty. will give me anymore information until court. which is in two weeks. I did contact the credit union to see if they would tell me the last payment date.(thought i'd give it a shot) They told me to contact their attorney.
Then go to court and tell the judge you believe that their information is wrong. Tell him the last payment you made was in 1999, which makes it past the statute of limitations. Tell him you asked for a complete history but that they were unable to provide it. You should say that if they are correct that you defaulted in 2000, they must have proof that you made a payment then. Your position is that they haven't proved you made a payment in the last four years. They're trying to convince you to fold.
I agree with Hedwig. You might also want to look at WhyChat's outline: http://whychat.5u.com/answer.html
Thanks guys. I know they are wrong and trying to get me to back down because they have already passed the SOL. Thanks again. Your information has been very helpful. I can't wait until this is behind us. Oh, one quick question please. Am I allowed to speak on behalf of my DH in court? He knows nothing about SOL, DOLA, credit law or anything.
If you have a credit report, or other information from a CRA, showing the original date of delinquency, which creditors are required to supply to the CRA within 90 days, you might provide that, along with the applicable section of the FCRA that requires the creditor to report it, as your documentation of the original delinquency date. Request the statement showing your last payment, CRRR, and if the creditor will not, or cannot, provide it, make clear to the judge that the creditor has provided no documentation to substantiate their claimed delinquency date, and that the credit report delinquency date is based on the information they were legally required to report under FCRA.
