I was just served a summons and need some quick advice. I had a MBNA account that went into default in October 2001. The balance at that time was $880. The account was eventually assigned / sold ( I'm not sure which ) to FAN Distributing LLC in NY. I am in South Carolina and the SOL is 3 Years. I have had NO contact with MBNA or Fan Distributing. I believe Fan Distributing may have sent a collection notice in the past but I can't find that at the moment. Last week I received a notice from a law firm attempting to collect the debt. Today, I was served with a summons to appear in common pleas court. The summons was prepared by that same law firm. They filed the summons on June 29th. I was hoping to lay low so to speak until the SOL had past but that obviously didn't work here. Anyone have any suggestions as to what my next move or basic strategy should be? Any help would be most appreciated. I guess I could try to settle and ask for removal or something but it doesn't seem like the CA would go for that. I don't really have any violations on the CA so I doubt I can countersue or anything. The attorney is at least 3 hours away from my county so I wonder how hard he might try to pursue this. Anyway, just wanted to check and see if anyone had any thoughts.
You need to file an answer and a notice of appearance. If you can't find a lawyer to help you, go to my website and look for the link ( under special letters) How To Answer A Lawsuit. You say you believe you are within SOL? When was the last time you were able to USE the account? They need to prove ALL their claim, not only that it is yor account, with a copy of your signed application, but the records of the interest and fees charged and when EXACTLY your last payment or charge was on the account BEFORE it was "past due" or "suspended" or had the credit amount cut to at or below what you owed.It is THAT date that you should use in your SOL defense. You should deny knowldge of their claim, and use a SOL defense, as this will force them to provide all the correct account records to refute your defense.
Here's a few more details...I was mistaken about a few things. I'm started to catch on though ( I think). I was actually only served with the complaint. There was no summons with the complaint. I checked with the clerk of court ( this is filed in our version of small claims ) and there is a summons in the case file but no record that it was served to me. I need to check back with the clerk to see why I wasn't properly served. The complaint includes a generic credit card agreement. There is no reference to me anywhere in the agreement. They also included a list of the alleged debt total, and affidavits that the debt is mine. The affidavits include nothing more than their head collection person saying that it's mine. There is NO signed contract or anything from the OC detailing this is my account. I would think the first thing I need to find out is why I wasn't served with the summons. Are they deliberately trying to have me default? Yeah, probably. Next, if they haven't attempted to serve the summons, I guess I don't need to file an answer until they do. If I do receive the summons and need to file my answer, a few things seem to jump out at me: In the credit card agreement they provided in the complaint, there is a section that basically says any disputes regarding the account must be handled via arbitration even if the account is assigned, transferred or sold. This would seem like a possible grounds for dismisal to me. Second, they seem to have failed to show any proof that this my account. There is absolutely nothing from the OC. Thanks for the help.....
