I was served today in person at my house. The suit was brought by a company who must have purchased my old OC CC debt. First, the suit was filed in ###th District Court of Texas that happens to be in the county next to the one for which I reside. Based on my search, this district court does not cover my county. I'll have to do more research on this. I guess if find they should have filed in my county, I guess I can get the this first suit dropped. I have 20 days to respond to the court. A little history: Acct opened: 5/94 Amount charged by me to account: $3353 (through 5/95) Amount paid by me on account: $4425 (last payment 11/01). SOL in TX is 4 yrs. Debt according to suit is ~$4500. This is a few hundred more than my last stmt from OC. Rec'd letter from attny for new debt owner in early August. It included the miranda warnings. Stupidly, I did not respond. I am at least slightly familiar with the FDCPA rules and how to handle debt collectors (though I didn't handle this one right). But, I'm not sure what do now that I have been served. I'm not aware of any FDCPA violations. Can someone recommend a course of action? I must file a "written answer" to the court. What kind of answer are they looking for? Is it to late to request validation? Thanks.
If I am correct in that they have filed in the wrong court and must refile in the correct court, the new filing will be after the SOL. Wouldn't I be able to use the SOL as my defense at that point. I mean, it's not my fault the idiot lawyers filed in the wrong district.
A couple of items here: 1) The collector may be able to file in the other county if they "conduct business" there, make sure to read all the laws. 2) They are at the limit of SOL on the debt, try to research to make sure your payment histories are right. 3) You can still demand "validation" of the debt, it is not too late to make the demand in writing. 4) Remember, YOU must bring up the defense of debt being past SOL, the judge does not have to know it, or bring it up. The responsibility is upon you to use it as a defense.
The SOL is in question. According to my interpretation Why Chat's site, the SOL is based on the last payment of an OPEN account. So, how do you define "open"? I was on a 6-mo payment plan that ended 11/01. The plan was through the internal collections dept of the OC. At this time, the account was closed in the sense I couldn't charge anything. But, I have CR from 11/01 that shows the account as "Open/Current", but contains note "Paying under a partial payment agreement". My last payment prior to the payment plan was 11/00. I have a EQ CR from 7/03 that states the DOLA as 12/00. So unless the JDB actually has business records from the OC, I could provide this EQ CR stating the DOLA. Even though TX is based on last payment, the JDB would have to prove I actually made a payment after 12/00. Obviously, if I use the 12/00 DOLA, I am past the SOL period. If I go buy last payment, they filed just before the SOL expired. Which brings me to my next idea. After reviewing TX code, they should have filed in my county of residence (the JDB or lawyer do not have business in the county filed). But, the statute allows for me to request a change of venue. I don't want a change of venue because (I think) this will allow them to continue there original complaint. I want the court to dismiss the case, thus forcing the JDB to file in my county. By then, the last payment SOL period would have expired too.
Is there a "Charge Off" date for this item? That may be the issue here. As for the filing and venue issue, it may be worth a consultation with an attorney on strategy. It may be worth your while to show up at the hearing, and state that the filing was improper, and let the judge decide at that point. Make sure you do your homework though, this is just an idea.
