I am being sued by a credit company for $1073.62. I have been ordered to personally appear in court on a specific date in July 2009. This was presented to me not by a sheriff, but some person off the street. It says that the hearing is regarding "showing cause why sanctions should not be issued against the Plaintiff for Failure to file Default Judgement..." But other documents inside say that I am being sued for the debt of this other collection agency (again not the original creditor) plus ten per cent interest per year from 2005 and they are claiming that they are in the SOL. I live in California and the SOL is four years, for this type of account. Ok, Questions.. Plaintiff failed to attach any type of contract to the complaint. Is that grounds for dismissal? Also, I am pretty sure the last activity on this account was 2003... how do I prove that? Also Plaintiff does not mention anywhere on the document the original creditor, which was JCPennys btw. and when it went to collections, no less than six collection agencies snatched it up, in rapid succession. Helpin CA. What do I do now?
The case was likely filed some time back and because there are standards for diligence in getting it served on the defendant in a timely way, an order to show cause was issued (probably in July 08) saying "hey, we're going to dismiss it next year unless you get it served". Well, they just got it served ... and they apparently included that order, which was probably extraneous junk in the scheme of things and should not have been attached to the papers you received since it just confused you. Other states require service within, say, 120 days. You need to file an answer if necessary, appear, defend, and take your shot at triumphing. If the case was filed before SOL ran out though, you won't be able to use the SOL defense. You need to determine that file date. Also in CA you need to pay a fee to answer, unless you can get the court to waive it on account of indigence. The person off the street was a private process server. Tag! Youre IT!
You are right! They filed it July 28,2008. Now how do I figure out when the SOL expired on it? We had a series of unfortunate events in 2001 (husband had massive heart attack) and 2005 (I had stage 3 breast cancer) that caused some bills to go defunct. The only records that I could find were a 1) bill showing last purchase made.(2003) 2) credit statement showing that payment had not been received for five months (5-05). I am pretty sure that payment was never made after that last purchase in 2003 and no further action occured on my part. How do I prove that? Can I expect the original company (Penneys) to tell me when the last payment was made? And to give me a printout of activity on the account? Thanks... for previous answer. I think you were right on about what was happening.
You need to dig into old bank statements, canceled checks and what-have-you. Also, you can pull your own credit reports from the big 3 and look carefully at the little bubbles for payments made and payments not made. But the ideal place to get information (unless such information turns out to be fraudulent, as in "phantom payments") is the plaintiff themselves in the pre-trial process called "discovery". You just ask 'em (in a formal, court-paper sort of way). They have to tell you. Unless this is small claims. There's no discovery in small claims. But if you raise the SOL defense, you need to be prepared to meet the burden of proof. And while the burden of proof is on you, the burden of having non-hearsay, admissible records of a claim that's still inside the SOL is on them, provided you properly invoke it. So if it is truly SOL, either they won't have what they need to prove their case, or they will prove your defense out of their own mouths ... or potentially they will cross the line into fraud by claiming a phantom payment. The last situation is a little rare with the larger JDBs. Most lawyers won't risk their licenses, most large JDBs won't risk it getting around the courthouse that they've been caught doing that.
I took your advise and got my free credit report on line. What I found out was that the original debt was charged off as a bad debt. I guess it was bought in January of 2005, by another collection account known as LVNV Funding LLC. Now, I have not signed paperwork with them....Where does SOL fit in?
The sale of the debt to a JDB does not toll or restart the SOL clock. The new buyer stands in the shoes of the old, with all of the strengths and vulnerabilities of the old owner's case just as though the debt had not changed hands. With one key exception. The new owner lacks anyone within their own organization who can competently testify as to the accuracy of the old owner's records. For that they need at least an affidavit from a records custodian of the old owner, and at most they would need to make that person available to be cross examined on the witness stand or the old records would be hearsay and inadmissible. Courts may not be too keen to see your rights upheld in this regard, however. They know how the game is played.
I received an answer to my question in the mail today. I told them that I didn't not know who they were or who they represented. I was correct in the name of the company. However, isn't it a statute of limitations issue if I haven't made a payment or a purchase since 2003? I am thinking it has already expired. It has just bounced around from creditor to creditor.
If you have the affirmative defense of SOL (you would need to check which SOL in your state applies to this particular debt) you will need to properly assert it in court in a timely way or it will be foregone ... lost ... worthless to you.
Rotpada: "Bump then lurk" is forum slang ... Bump means to post to a thread with no real content in that post for the sole purpose of bringing that thread to the top of the current stack, in the hope that it will get more replies. Lurk is someone who reads through the posts, bu doesn't necessarily post themselves. In this case, Lihualee is possibly watching this topic as (s)he has a similar situation and wants to see the outcome or an answer that (s)he could use in his/her own circumstances, hence bump then lurk. Hope that helps
