...I'm real confused. I got a summons for court from an attoney representing Midfirst bank who was assigned the original debt from BoA. I went to a lawyer who told me how to prepare an answer for the court. I disputed the amount of the debt 5200.00. Now their lawyer has sent me all this paper work where I have to show proof that is not the right amount. According to my experian report the account went bad 11/96 for 4400.00. Isn't the statute in fla out on this? They filed suit 12/01. I'm afraid to pay for the advice of another attorney ...This one told me how to file an answer and I answered the court that I did at on time have a BoA account. Now can I still get this validated by the attorney? Am I real screwed? I know I'm nervous...should I just pay if he will delete and drop suit?
If the SOL is up then you stated that in your answer right? I would also find out if you should be filing a motion to dismiss or if you actually have to appear and the judge dismisses it then. At the very least I think you should talk to the atty who helped you file the answer before sending anything to the other attorney. He can best guide you on what or what not to send, you really want to protect yourself, like you said you are nervous, so if your not sure about something call him and ask, or at least ask the court clerk he/she can be very helpful. I was reading a legal forum awhile back and remember someone posting the following: "If you think this lawsuit is entirely vexatious, say that on your answer and request treble attorneys fees for filing a vexatious complaint. That can be written in a one liner on the Answer. "Defendant contends that this lawsuit is entirely without merit, brought about to vex and annoy defendant and defendant asks for treble times attorneys fees necessary to defend this frivolous lawsuit." That goes in the body of the answer. Then at the end , where the prayer is and you are asking for what you want add: Defendant prays for treble damages for forcing defendant to hire an attorney to defend a frivolous lawsuit." You have to get this in at the very first when you file the answer or you may not have a chance to ask for this again." If the atty is suing you knowing the SOL is up this may work for you, since he knows he cannot win if you raise the SOL defense. Again, I would call the atty who helped you file the answer and ask, maybe he would be willing to take the case if treble damages will be awarded. Then again maybe the other atty will drop the suit if he knows you can prove it is time barred. I wish you luck! Tuit
The SOL is your only defense besides asking for your contractual obligation to pay a red cent... Since the Sol is up, I would stick with an answer along those lines. The SOL is an absolute defense in your situation and most be used right away.
Thanks for everybodys help. I guess I need to see another lawyer, the one I went to basically wanted me to pay up. When he insturcted me on how to file the answer I feel I was lead down the trail...How do you know the date of actual last activity? from your credit report or what?
The date of last activity should appear on one of your CRA reports. The date of last activity states when the account actually had some type of transaction, payment, charged off, etc. The date the account was charged off and sent to collection may be the date the courts will go buy. I suggest that you read the FDCPA and the FCRA if you really want to understand all of this stuff. www.ftc.gov/consumer here is the link to the FTC site, click on credit. There you will find all of the FTC rulings in text format and PDF..
If you have not received an actual service to appear for a judgement hearing, then the lawyer has illegally sent you a request for information (FDCPA states fraudulent "appearance of legal action") You are beyond the SOL and you do not need to respond EXCEPT to the court,if you are served. If so, all you have to do is send a letter to the court stating you dispute the debt. If the lawyer (if he is in Fl. I bet I know who he is) doesn't have the records, he has NO way of doing anything.
Good point, Also make sure that they dont get a default judgment on you if this is the case. I had someone slip one past, without proper service. THey got it in the end...l
The only court papers I received was a summons from civil court. I did "answer" the court disputing the amount. I was unaware of the sol defense. The Lawyer was sneaky and filed right at Christmas, I'm sure hoping that I would not answer and get an automatic Judgement. I filed on time and then started looking on the net for help, and found this site.Along with the summons was a computer print out from his office that states date of last activity as 2/98 but the date of last activity on my cr with the original creditor says 11/96. Do I need to send their lawyer a letter of validation? From what I have read they can't even file suit if the debt has not been validated, right? Does anyone know a good source for legal Info that is interactive? I think I need to file a motion with the court now to dismiss or something and get some information from their side. I don't understand why I would have to prove my stance and they haven't even shown me the debt is actually mine.
I think I would just go to court and take my old credit report with me to show the judge the DOLA. I would want to see the lawyer's face when the judge dismisses the case That way you won't have to mess with all the requests for information.
can you do that? not respond to their request for information...it says you only have 30 days to come up with all the old receipts and stuff. By the way how do they notify you when the actual court date will be? since I filed my answer I haven't heard anything expect Their request for discovery.
You have disputed the claim.The lawyer is trying to get YOU to provide HIM with the information he needs to pursue the case.Send a letter to THE COURT protesting the lawyer's actions as a violation of the FDCPA,state that your records show the last activity date on the subject UNVERIFIED account was (XX XX XX) State it is X years beyond the SOL,that you have been in constant occupancy in the State,and have NO TOLLING. Request an immediate dismissal. Send a copy to the lawyer and state if he doesn't comply you will seek appropriate legal action against him.
I don't know a lot about state courts in other states. I would never have sent in the answer you sent, but I know the statute of limitations is up, and apparently you didn't. There are some lawyers and others with law experience on here perhaps one of them could tell you how to phrase a motion for dismissal on the grounds that the SOL is up. Perhaps you could answer them with that.
Obvisouly I don't now much about state courts either or I wouldn't have filed that kind of an answer. That was why I paid a lawyer for his advice guess I got what I paid for...I now will begin work to file the motin that will be along the lines that Why Chat has suggested. Anybody know where to go to get an example of a motion for the court?
When you are all finished with this, send that lawyer a copy of the order for dismissal, and a letter saying, very politely, of course, that you feel you did not get your money's worth when it came to his advice. And that you got better legal advice off a public message board on the internet
okay, here we go.... just to get you up to speed Them vs. me Compalint: Plaintiff sues Defendant and alleges: 1. Action for damages in the amount of $5K 2. Pursuant to Defendant's request for credit card, Plaintiff's predecessor in intrest established a credit account for defendant's use and benefit, and issued defendant one or more credit cards. 3. defendant made or authorized certain purchases using the credit card(s), which where chaarged to the credit account. 4. Plaintiff subsequently obtained ownership of the credit account by assignment for value. 5. Defenant has not paid the balance due on the credit account, which is now deliquent. 6. Defendant owes the plaintiff $5k which is due with interest as the balance due on the account, as reflected on Exhibit A. (his computer printout) Wherfore, Plaintiff demands Judgement against the defendant in the sum of $5k together with costs, interest, and such other relief as the court must deem just and Proper. This is a communication from a debt collector. Here was my Answer on the advice of lawyer #1 (prioir to knowledge fo SOL) Response to preliminary allegations 1. Defendants are without sufficient information to admit the amount of $5k and therefore deny the allegation. 2. Defendants agree 3. Defendants agree 4. Deefndants agree 5. Defendants are without sufficient information to admit the amount of $5k and therefore deny the allegation. 6. Defendants are without sufficient information to admit the amount of $5k and therefore deny the allegation. Wherfore defendants request judgement as follows: That the court order further reasonable relief Then I get Their: Motion for summary Judgement Comes now the Plaintiff by and through counsel grounds would state that there is no genuine issue as to an material fact and plaintiff is entitled to judgement as a matter of law, as appears from the pleading and affidavits Plaintiff requests court enter final summary judgement against defendant. And Their Request for Admissions to Defendant 1. I applied for card 2. that first creditor established account 3. That I bought stuff 4. That I did not pay 5. Given copy card agreement 6. His Exhibit is true and correct 7. That I owe the amount sought Then he has his Request for Production of Documents Produce copies of the following to his office with in 30 days for inspection fla law rule 1.350 civil procedure 1. alll correspondence from me to Them or first creditor. 2. Copies all my payments to Them or predecessor since last zero balance 3. all sales receipts for my purchases since last zero balance 4. all statements sent to me from them or their predecessor since last zero balance. 5. any and all documents I will use for my defense. And finally........................... Interrogatories to defendant 1. Identify self 2. list all purchses since last zero balance 3. List current location of all purched items from #2 4. List all payments since last zero balance. 5. State amount if any I admit owing 6. State date I notified them or their predecessor of any discrepancies on the account since last zero balance and the method of notification. 7. List vendor and amount all charges I am disputing. Thats where we stand as of today and his clock in has less than two full weeks I you use the date of his letter not the day it arrived Thanks for looking
It is,in my opinion,not neccessary for you to give him ANY information.If you have a "show cause" or evidence hearing,he is expected to furnish proof of his claim, and you to show proof of why he has no claim. Why give him even a shred of evidence to use against you?
Okay, I used your outline for the request to dismiss and will file monday. then I will call and request a hearing for about 30 days out...Now why am I requesting a hearing 30 days out? What about requesting validation from him I haven't done that step yet or do I need to? when I mail my I object responses and the certificate of service do they have to be crrr?
