Well... I was served. Pre-trial is set for 7/21/04. Now, I am pretty sure I am outside the SOL. PLEASE anyone who can help me on this, please do so! I incurred the debt in Arizona and this is where the debt went bad in 1999. Since then I have moved to Florida (in 8 of 2003). To my knowledge it is outside of the SOL. Now, in FL, they have a clause stating that the SOL is suspended any time the person leaves FL....but what if I never lived here until now? I can't possibly believe that they would be able to start the SOL in FL after the SOL has already expired in AZ purely because I never lived in FL before. PLEASE.... I need some serious help. I am scared to death!!! I am afraid of showing up in court and being bamboozled by this other guy's attorney because he is more knowledgable than I am. I try reading the laws and I have been to Whychat's very informative site...but I still feel so scared and confused. Should I hire an attorney? The only one I called scared the hell out of me because he told me it wasn't outside of the SOL because it has continued to accrue interest. I have read-and re-read and that doesn't seem to be true. Please...anyone that can help. I am seriously begging here. Thanks! ~WOK
I incurred the debt in Arizona and this is where the debt went bad in 1999. Since then I have moved to Florida (in 8 of 2003). To my knowledge it is outside of the SOL. We need some more details here. First of all, the idiot lawyer you talked to doesn't know what he is talking about. Additional interest charges have no bearing. Was this a debt solely in Arizona? Where are they suing you? When exactly was the last time you paid on the debt. Is it a credit card debt or something else? (you may have said that elsewhere but I forget) If the debt was incurred solely in Arizona, you'll need to do research on SOL there, and to see if moving out of state does anything to the SOL.
The account is a CC account and the DLA was in 1999. I stopped paying in 1999. The attorney I spoke with also argued that the CC was a "written contract". I lived in AZ until 2003. The SOL in AZ is 3 years for credit cards. It was out of the Statute of limitations in AZ before we ever even moved here. From the way I read it... FL upholds the SOL of all other states. I am just concerned that I have all of my ducks in a row before going into court and trying to get a SOL dismissal. I will be mailing out an SOL letter via CRRR tomorrow to try to make sure it gets there well before the hearing. As to the copy of the terms & conditions I cannot seem to get them because MBNA says that it has been turned over to collection and they don't have them on file. So...should I then do a validation?? How do I defend myself if I don't have a copy of the terms and conditions?? Do I need an attorney? Try as I might I can't seem to find anything on this site of anyone who has actually gone to court on a SOL! I have tried the search function and am still wading through it. But I am really really afraid here. My husband told me that if I get a judgement, he'll get a "paper divorce" to protect his assets and that scares the hell out of me. ~WOK PS~ They are suing me in FL and all of the debt took place in AZ. I cannot change venues because AZ has a "long arm" law. Which is fine since FL law states that it haold up all other SOLs if incurred in a previous state.
Get copies of the Arizona law that shows the SOL. Also, if you have something that proves you still lived in AZ when the SOL expired, bring it. Just tell the judge it is past the SOL, here's the AZ law, here's proof that I was in AZ when the SOL expired. Tell him you've mailed them a letter stating these facts, and they have continued to pursue you, and you don't understand why this case has even been filed.
What you will need to do is to file a written answer to the court which will consist of a general denial of all allegations in the complaint except those allegations you cannot deny such as you name, address, things like that. Then you will need to specifically deny each and every allegation separately. You will need to file a copy of your answer with the court and you will need to send a copy to the attorney of record. You will also have to prepare a certificate of mailing and file that as well. Then you also want to file a motion to dismiss plaintiff's motion for summary judgment with prejudice for failure to state a claim upon which relief can be granted. In that motion you will need to specifically state why the plaintiff's motion fails to state a claim upon which relief can be granted. The reason that you will claim in that motion is that the court has no authority to grant summary judgment on a claim that has been outlawed by Florida Statute and you will need to quote that statute and section which specifically outlaws their claim. Then you should prepare another certificate of mailing and a petition for a hearing date on your motion. You would also file one copy with the court and send a copy to the plaintiff's attorney and a copy of all of the above for your records. You would take a copy of your motion to dismiss and your petition to set a hearing on your motion to the judge's office and hand it to the judge's secretary who will then set a hearing date on your motion. Or the secretary may tell you that you won't need to file petition to set a hearing date because your motion will dismiss the case. How they would want to handle that would be up to the judge's discretion and local court rules. If the court sets a separate hearing on your motion (which I doubt they will) you will have to go to that hearing as well but their case should get dismissed whether it is at the regularly scheduled hearing date or at a special hearing which you get set. I would guess that he will not allow a separate hearing on your motion but rather will just rule on your motion at the regularly scheduled hearing date. It may not even be worth trying to set a separate hearing on your motion. Just file it and let the wheels roll may very well be the best way to handle it. Your motion to dismiss should win the day if it is properly filed and pled and you are correct in your assesment of the facts as to when the statute of limitations started and whether it has run out on them or not. If it has you should win easily. No matter how good you think it is you need to go to court, identify yourself when the case is called and let the judge make his decision.
What's happened on this? Have you already filed the Answer to the court, so they don't get a default judgment on you without the opportunity for you to even bring up the SOL defense?
