This is unbelievable. Today, the sheriff served me for a suit being filed in the circuit court for a credit card account that was charged off in January 1997 and the last payment was in August of 1996. I originally opened the account while living in Pennsylvania, and I now live in Missouri. Correct me if I'm wrong, but don't I have an absolute defense since the statute of limitations has expired in both states for this "open ended account"? This really irks me, because I sent them a validation letter not even a week ago, in response to the first letter from the law firm. They attached the signed contract and a couple of computer printouts to the summons. It appears they did validate, so my only option at this point is the SOL. Last time I checked the SOL for open ended accounts was 5 years in MO and 4 years in PA so I should be safe. Am I correct here?
Go to court and raise SOL as a "affirmative defense". If you don't go to court, they get a default judgement and you have to pay. Most CA's will sue you and bet that you don't know your rights. YOU lucked out, because you found creditnet before you got sued. Good Luck
The SOL site I use says open-ended accounts in PA are 6 years. Open-ended in MO are 5. Now this site may be not be 100% correct. I took the info from: http://www.creditinfocenter.com/rebuild/statuteLimitations.shtml You may want to consult with an attorney on this and get the absolute SOL for PA. Hopefully, the SOL in PA is 5 like you said.
"Correct me if I'm wrong, but don't I have an absolute defense since the statute of limitations has expired in both states for this "open ended account"?" Yup. But doesn't mean that they can't sue you. You can sue anyone for anything. I once got sued in small claims court because a customer wanted a cash refund on something where the sales slip said "No Refund, No Exchange, No Nothing". The customer basically got laughed out of court. "Last time I checked the SOL for open ended accounts was 5 years in MO and 4 years in PA so I should be safe. Am I correct here?" When was the last time you made a payment or make a promise of payment? Unless you have done either in the last 5 years before the lawsuit was filed, you should be okay. Toml
About this whole "promise to pay" renewal thing. I know that a promise to pay or a payment would renew the statute. However, what constitutes a "promise to pay"? The last payment made (this is according to the creditor) was August 6, 1996 and I haven't made a payment since. It was also my understanding that the renewal of the statute of limitations by payment or promise to pay only applies to accounts that have already expired SOL's. If the SOL period has not expired, than a payment or promise to pay does not renew the statute. As far as the SOL in PA, I know there is a website that lists it at 6 years, but many I have talked to have told me this is an error. It is actually 4 years for open ended accounts. If anyone has a definitive opinion that it is 6 years (backed by some kind of legal information that is current) I would LOVE to know now so I can determine how to handle this. Otherwise, I am taking the SOL defense. Do I have to answer this suit? Or do I just show up in court on the day specified?
By the way, would a settlement offer in exchange for deletion of the account on the credit report constitute a "promise to pay?" I've heard that it doesn't. I didn't do this, so it doesn't really matter, but I am curious. That term can be vague.
i use this site to check sol's in each state.. http://www.edebtnetwork.com/content/collection_laws.asp
I'd consult a lawyer before I did this but, if the SOL is your defense, respond to the summons by requesting a summary judgement. In other words, you're telling the judge it doesn't matter what evidence the plantiff has, it's not good enough. I have a matter of state law on my side that will force you to rule in my favor.
Lizardking, I am being sued in the "Circuit Court of Platte County, Missouri". I am assuming that it is small claims court. The amount they are seeking is 1,845.60 plus court costs and interest. This seems to be inline with a small claims case.
You must respond to the suit within the time given you by the court or they will get a default. It is not enough to just show up in court. You must raise the SOL as a defense in your answer or you waive that defense. It is usually raised as an affirmative defense.
I don't think this is small claims court. This site should be helpful: http://www.nwjustice.org/docs/205.html PS: credit goes to Why Chat for pointing out this site
Breeze, Thanks for the information. I already have that site bookmarked and have read through it quite extensively. I am having a problem finding an attorney in the Kansas City area who represents consumers in this situation. I have called three offices and they either don't handle these cases or they aren't familiar with the laws pertaining to debt collection. I called one lady and she didn't even know about the statute of limitations for collecting debts! That is not a good sign..
Some info from google: http://www.kclawyers.org/consumer-protection/index.html from findlaw.com http://longanlaw.wld.com/ Also try getting a referral from you local bar association. Keep trying, don't give up.
Thank you breeze, that helps a lot! I just got off the phone with another attorney. He was a little more cooperative, but was still relatively unfamiliar with the statute of limitations and if that was a defense to this type of suit. He also asked me if I wanted to settle the suit. I said "not if the statute has run on it, that would be stupid". I quoted him the laws and some background on collection procedures and the FDCPA and he was astonished. He asked me if I had gone to law school. I can thank this website and everyone here for helping to educate consumers like myself in the ins and outs of credit law. At this point, I think I know more than the attorneys I have been talking to.
Lizardking, Do you have a good answer pleading for a SOL affirmative defense? Or does anyone else have one? My main concern in representing myself is not my defense, it is the court procedures. I need to make sure that I file my answer timely, serve it on the plaintiff correctly, etc. I am worried that I will forget something or not format my documents correctly and lose based on some kind of technicality. That is the primary reason I am seeking out legal representation.
That would be extremely helpful. I would appreciate it. I think I am definitely going to go pro se on this one. I have checked and double checked that the statute of limitations for open accounts in Missouri is 5 years. It has been more than five years since any payment has been made on this account. Would I file a motion to dismiss this case based on the statute of limitations? Would this be filed at the same time as my answer pleading?
The SOL in Missouri for credit cards is 5 years. The confusion on "re-aging" the SOL has NOTHING to do with being sued, it relates only to the CRA's. The statutes for Mo's SOL are in it's UCC codes. I will get it for you. The site that Breeze posted has a very good guideline for your response, and you will do much better than any "no-nothing about debt" lawyer.E-mail me and I will respond with what you need.
Thanks for the assistance. I am clear on the difference between the SOL for collection and the time period for reporting debts to the CRA's. I just wanted to ENSURE that the SOL for Missouri had run for this debt before stating the affirmative defense in my answer. I'm typing up the answer right now as a matter of fact. I will email it to you once I have completed it so you can review and it suggest any changes. Thanks again to everyone for the assistance.
