Back in 2001 my wife (we didnt get married until 2002) got into financial problems and could not pay a credit card. She owed $1,500 at the time. Over the course of 2001 & 2002 we received letters from collection agencies and we flat out didnt have the money to pay it at the time. I telephoned the collection agency and I attempted to settle for a lower amount but they wouldnt take it...and as such we never paid it. There have been no payments or activity on this account for at least 5 yrs since. Now fast forward to June 2006 and she just received a summons that she is being sued for the $1500 plus interest from someplace called MRC Receivables Corp. based out of california. We live in Ohio and based on information I've researched here and also at http://whychat.5u.com/ the SOL for credit cards in Ohio is 4yrs. and this is clearly past the last date of activity. So I pulled her credit reports and here is where things get interesting. Her credit reports do not even show the original creditor - ASSOCIATES - on her report. However, it does show this new collection agency - MIDLAND CREDTI MGMT INC as having an Open Account in Collection Status for the $1500 she's being sued for. According to the credit report it has the date placed for collection as 11/2004 and the date updated as 05/2006 And something else all of the accounts on her credit report all have a Date Opened, but on this collection account the Date Opened is 'N/A' or simply not displayed depending on which report is being viewed. Shouldnt it have an opening date? Or shouldnt the original creditor's opening date or last date of activity be displayed? So my main question is, what should be our next step in replying to the summons? Any help is greatly appreciated as we dont have the money to pay for this and I'm afraid paying for a lawyer to fight for us would cost even more!
You want to answer the summons, or you will lose by default. Your defense is that the debt is past the statute of limitations. Are there any legal clinics in your area, perhaps associated with a local law school? Alternatively, you may want to at least talk to a couple of lawyers with a background in consumer debt collection law in Ohio. There may be violations of OH consumer protection law if they are knowingly suing on an out of statute debt. Just dropping any information on the original date might be a clue. See naca.net.
Yes I understand I need to reply to the summons to avoid a default judgement... My main question is how I should reply to the summons. Anyone out there with specific knowledge of Ohio state law and how I should reply? I was hoping I could simply print off the latest credit report showing the last date of activity being older than 4 yrs and include it with the reply to the summons claiming the acct is past SOL. However, the credit report doesnt even have the original creditor listed anymore, and the current credit reporting agency - Midland Management - has N/A for the opening date (hows that even possible?) so I cant even use that as a date to prove its past SOL. Just by the mere fact the original creditor is not on her credit report leads me to believe they have nothing to go off of, but then again I really know nothing about this and just now starting to try to learn and do some research. Any help would be extremely appreciated!!!!!!
1. If you deny liability to them they must prove that they have lawfully aquired a valid debt. If they bring those documents to trial sufficient to prove the original debt they will probably serve to prove your SOL defense. 2. You may have a counterclaim for FDCPA or FCRA violations. That will stick in their craw. Consult an attorney.
I went back through my filed paperwork and I actually have a letter from a completely different creditor by the name of Creditors Interchange dated 02-07-02 attempting to recover the money for the exact same account. Now, this summons was just issued and from what I've been reading Ohio has is a 4yr SOL for credit card debt. So would this collection letter from Febuary of 2002 be enough evidence/justification that the SOL has clearly passed?
I am needing to reply to this summons within the next 4-5 days and I need to get started asap. Here are the points listed in the summons - --------------------------- 1. Plaintiff acquired, for a valuable consideration, all right, title and interest in and to the claim set forth below originally owed by defendants to ASSOCIATES As a result of the assignment, Plaintiff became and is now, the owner of account number XXXXXXXXXXXX. 2. There is due the plaintiff from the defendant upon an assigned credit card account debt, the sum of $1551.89, that sum being the balance due on the charge card. 3. Attached hereto as Exhibit "A" is an affidavit attesting to the amount owed the plaintiff. The account records are not attached hereto because, upon information and belief : (a) Plaintiff is not the original creditor and does not have possession, custody, or control of said records; (b) copies were sent monthly to the defendant, and are or were in defendants possession or control (c) said account records may be voluminous. 4. Plaintiff notified defendant(s) of the assignment and demanded that defendant pay the balance due on the account, but no part of the forgoing balance has been paid. 5. Defendant is in default on this repayment obligation. ------------------- Does anyone have any advice how I should reply to those 5 points above? Again, as I stated earlier I have a collection letter from another agency attempting to collect on this debt in Feb 2002 and Ohio is 4 yr SOL and this summons was not filed unto June 2006. Should I even mention that in my reply to the summons?
"3. Attached hereto as Exhibit "A" is an affidavit attesting to the amount owed the plaintiff. The account records are not attached hereto because, upon information and belief : (a) Plaintiff is not the original creditor and does not have possession, custody, or control of said records; (b) copies were sent monthly to the defendant, and are or were in defendants possession or control (c) said account records may be voluminous." They are hoping you roll over and give them a default judgement. Who is attesting to the debt? The plaintiff just said they are not the original creditor, and don't have, and never had, the original records. Even under FDCPA validation, they would have to GET copies of the records from the original creditor, yet they want YOU to believe they shouldn't be burdened with even that. They may even have bought the debt with the requirement that they would not have access to the records, a common practice for old debt. How can they attest to anything? Or is it someone from Associates? They merged with Citi several years ago, after a predatory lending scandal that Citi had to pay fines on. Is it someone from Citi? If they can attest, then they could produce the records, or else they are attesting beyond their actual knowledge. You might lose $1500, and possibly their attorney's fees as well, if you handle this wrong. If you handle it right, you might get some FDCPA penalties and your attorney's fees for suing on an out of statute debt, and make this go away permanently. Regarding mentioning SOL, if you don't claim it as a defense, you lose it. You would be wise to contact several attorneys specializing in consumer debt collection defense. Move quickly.
According to the affidavit, the person attesting to the debt - "is an employee of Midland Credit Manangement, servicer of this account on behalf of MRC Receivables Corp. (CRG)" The affidavit also states - "I have personal knowledge of all relevant financial information concering Midland Credit Management's account number XXXXXXX which includes the following information: the defendant did fail to make payments on the account and the demand has been made for defendant to make payment of the balance owing on the account described above more than 30 days prior to making this affidavit; that the attourneys representing plaintiff MRC Receiveables - were retained on behalf of me or persons reporting to me for purpose of collecting debt due - the sum of $1551.89 Now, Ohio's SOL laws on credit card debt are confusing and most sites claim 6yrs, however Whychat's site - whychat.5u.com - claims its only 4 yrs in Ohio due to certain wording in the Ohio Revised Code...so its not even a clearcut case of being past the SOL. So my questions are - 1) Do you not think its wise for me to handle this myself and respond to the summons without a lawyer? I'd prefer not to have to pay a retainer fee and lawyer fees as it could quickly reach higher than the $1500 she is being sued for. 2) Say eventually it goes to court and my wife loses and has a judgement against her - the worst they can do is try to garnish her wages, freeze bank accounts, or claim assets right? Only reason I ask is before we got married in 2002 I was aware of her credit problems and NOTHING has been put into her name since then. She does not have a bank account, her name is not on the mortgage, she has no assets to her name whatsoever other than a 403(b) savings account. The only other thing in her name are a couple of credit cards she uses. Also, she is pregnant and will be quiting her job soon so she will have no wages to garnish. Given these circumstances, even if they won in court they cant really collect on the debt if she has no assets correct? And they cannot come after me, correct? I checked and Ohio is not a Community Property state and we have no joint accounts either except a few credit cards...but NO joint bank accounts or assets. Those are ONLY in my name.
No opening date, and they don't happen to have the records. How convenient. Yet she swears she has personal knowledge of all relevant financial information on the account? What about the date of last payment? An affidavit about their own records says nothing about the original creditor's records. As an employee of the CA, who has already stated in their summons they don't have the original creditor's records, she has no first hand knowledge to swear anything about whether you actually owe the debt. If this is a CC debt, state law should clearly say what SOL is, and an attorney should know this. If it is SOL, your attorney's fees could be a lot less than losing. Find an attorney. The right one will be able to tell you whether you are past SOL, and if so, how to get this behind you.
What about this question - "Say eventually it goes to court and my wife loses and has a judgement against her - the worst they can do is try to garnish her wages, freeze bank accounts, or claim assets right? Only reason I ask is before we got married in 2002 I was aware of her credit problems and NOTHING has been put into her name since then. She does not have a bank account, her name is not on the mortgage, she has no assets to her name whatsoever other than a 403(b) savings account. The only other thing in her name are a couple of credit cards she uses. Also, she is pregnant and will be quiting her job soon so she will have no wages to garnish. Given these circumstances, even if they won in court they cant really collect on the debt if she has no assets correct? And they cannot come after me, correct? I checked and Ohio is not a Community Property state and we have no joint accounts either except a few credit cards...but NO joint bank accounts or assets. Those are ONLY in my name." Anyone have any advice on this if she decides to just not pay the judgement? Only reason I ask now is this has alot to do with whether we hire a lawyer or fight this ourselves..I'm thinking of just fighting ourselves and worse case scenario is she loses in which case they cant collect anything anyways...
You are assuming there are no consequences to losing. How long do judgements last? How long do you want her financial options tied up? What about other ongoing costs, such as higher insurance rates, possible costs if you want to refinance or move, or consequences if you became unemployed? They are practically telling you they think you are a stupid consumer who will lose by default. Do you really think they have the rest of the data on the debt, but they don't know the date of last payment? Why do you think they went to the trouble of including a lame affidavit implying to the unsophisticated consumer that they can prove the debt and win in court, while it literally says they have no documentation, and can't get any, but that there was a lot of it, and implying it is your fault if you don't already have it? They could try to collect anything from you, or anyone else with your name, with a straight face, and if you don't call their bluff, you pay it. If this is past SOL, the cheapest time to deal with this is now, since if you win on SOL, all the rest of the docs don't matter. It should be cheap, and final. It is not a substitute for responding to their summons, but did they ever send you a first letter notifying you of the debt and including your right to dispute and request validation within 30 days? Have you sent them a request for validation already? If so, filing suit without sending validation might be an additional FDCPA violation, primarily useful in getting your attorney paid for defending you.
Ohio's credit card SOL is a toss-up...some say 6yrs and whychat argues its 4yrs. Whychat provides proof on his site citing Ohio Revised Code(s) to back up his claim that credit cards in Ohio are only 4 yrs. I am going to use his advice and claim this is past SOL. (its been approximately 5 yrs so with whychats explanation its past SOL but if the 6yr holds true, then its before SOL) She did receive a letter notifying her of the debt but we did not send a request for validation..next thing we knew she was served the summons.. Here is my initial reply to the summons. Please critique this offer any updates/suggesstions. The original summons complaints which I am answering are listed above... ------------------------------------------- I. ANSWER 1. The allegations of Paragraph #1 are denied for lack of knowledge about the truth and sufficient information to justify a reasonable belief therein. 2. The allegations of Paragraph #2 are denied for a lack of sufficient information to justify a reasonable belief therein. Defendant calls for strict proof of contested allegations. 3. In response to Paragraph #3, Defendant admits that Exhibit â??Aâ? is attached. The allegations are denied for insufficient knowledge to form a belief as to the truth of the statements; therefore Defendant denies the statements and leaves the Plaintiff to provide strict proof of contested allegations. 4. The allegations of Paragraph #4 are denied for a lack of sufficient information to justify a reasonable belief therein. Defendant received no notification. Defendant calls for strict proof of contested allegations. II. AFFIRMATIVE DEFENSES 1. These ALLEGED debts, $1,551.89 from plaintiffs complaint, are time-barred under Ohio statute § 2305.09 (attached exhibit # A) 2. These alleged accounts do not fall under the Ohio Statutes for written contracts and are excluded for the following reasons : a) They are excluded under Ohio Loan agreements with Financial Institutions Definitions Statute § 1335.02 (attached exhibit # B.) and supporting statutes § 1109.18 (attached exhibit #C), § 1317.01 (attached exhibit #D) b) They are excluded under the Federal Truth In Lending Act Title 15 § 103 (attached exhibit #E) III. COUNTERCLAIMS 1. Plaintiff and/or Plaintiffâ??s attorney violated § 809 (a) of the Fair Debt Collection Practices Act. 2. Due to the above violations plaintiff owe defendant $1000.00. Defendant requests that this lawsuit be dismissed and that a judgment be entered against the plaintiff(s) for any counterclaims, costs, and attorney fees. DATED this 23rd day of June, 2006. ---------------------------------------------------
Not bad for a pro se defendant in small claims court. That response ought to make their attorney soil himself. If it ever goes to trial, make damned sure they don't admit that affidavit against you - demand the right to cross-examine the records custodian, and if they don't appear, get the records thrown out. Unless Ohio small claims procedure is unusually wacky, they'll need to bring a real live person to testify as to the debt, and if all that person can say is "that's what was on my computer screen," you should be able to get that thrown out.
I actually changed the Affirmative Defenses with a more detailed explanation why the claim falls under Ohio's 4yr statue and not the 6yr contract statue. And I updated the counterClaims after further research and investigation. Can someone please critique this? I am hoping for some feedback and constructive criticism... I need to get this mailed ASAP. I. ANSWER 1. The allegations of Paragraph #1 are denied for lack of knowledge about the truth and sufficient information to justify a reasonable belief therein. 2. The allegations of Paragraph #2 are denied for a lack of sufficient information to justify a reasonable belief therein. Defendant calls for strict proof of contested allegations. 3. In response to Paragraph #3, Defendant admits that Exhibit “A” is attached. The allegations are denied for insufficient knowledge to form a belief as to the truth of the statements; therefore Defendant denies the statements and leaves the Plaintiff to provide strict proof of contested allegations. 4. The allegations of Paragraph #4 are denied for a lack of sufficient information to justify a reasonable belief therein. Defendant calls for strict proof of contested allegations. II. AFFIRMATIVE DEFENSES 1. These ALLEGED debts, $1,551.89 from plaintiffs complaint, are time-barred and beyond the statue of limitations under Ohio statute § 2305.09 (attached exhibit # A) 2. These alleged accounts do not fall under the Ohio Statutes for written contracts and are excluded for the following reasons : a) Under the Federal Truth In Lending Act Title 15 § 103 (attached exhibit #E) a credit card account is legally defined as an “open” account. b) Credit cards and retail revolving accounts are excluded under Ohio Loan agreements with Financial Institutions Definitions Statute § 1335.02 (attached exhibit # B.) and supporting statutes § 1109.18 (attached exhibit #C), § 1317.01 (attached exhibit #D). They are not defined any differently than the Truth In Lending Act (TILA) or specifically as a type of contract, for purposes for state Statue of Limitations (SOL) the Federal Truth In Lending Act “open end agreements” Federal Statutes prevails. c) As such the accounts are “open end agreements” not contracts, based on definition under TILA and the exclusion of these contracts under Ohio Loan agreements with Financial Institutions Definitions Statute § 1335.02 the referenced accounts by way of exclusion are time-barred and beyond the statue of limitations under Ohio statute § 2305.09 (attached exhibit # A) III. COUNTERCLAIMS 1. Plaintiff violated FDCPA 15 U.S.C. § 1692e(2)(A) by reporting false and harmful information to Equifax, a consumer reporting agency as defined by 15 U.S.C. § 1681a(F). 2. Plaintiff violated FDCPA 15 U.S.C. § 1692e(2)(A) by reporting false and harmful information to Experian, a consumer reporting agency as defined by 15 U.S.C. § 1681a(F). 3. Plaintiff violated FDCPA 15 U.S.C. § 1692e(2)(A) by reporting false and harmful information to TransUnion, a consumer reporting agency as defined by 15 U.S.C. § 1681a(F). 4. Plaintiff violated FDCPA 15 U.S.C. § 1692e(10) by using any false representation or deceptive means to collect or attempt to collect any debt by not reporting a “Date Opened” to Equifax, a consumer reporting agency as defined by 15 U.S.C. § 1681a(F). 5. Plaintiff violated FDCPA 15 U.S.C. § 1692e(10) by using any false representation or deceptive means to collect or attempt to collect any debt by not reporting a “Date Opened” to Experian a consumer reporting agency as defined by 15 U.S.C. § 1681a(F). 6. Plaintiff violated FDCPA 15 U.S.C. § 1692e(10) by using any false representation or deceptive means to collect or attempt to collect any debt by not reporting a “Date Opened” to Transunion, a consumer reporting agency as defined by 15 U.S.C. § 1681a(F). 7. Plaintiff violated FDCPA 15 U.S.C. § 1692e(2)(A) by falsely characterizing the account status as "Open” to Equifax, a consumer reporting agency as defined by 15 U.S.C. § 1681a(F). 8. Plaintiff violated FDCPA 15 U.S.C. § 1692e(2)(A) by falsely characterizing the account status as "Open” to Experian, a consumer reporting agency as defined by 15 U.S.C. § 1681a(F). 9. Plaintiff violated FDCPA 15 U.S.C. § 1692e(2)(A) by falsely characterizing the account status as "Open” to Transunion, a consumer reporting agency as defined by 15 U.S.C. § 1681a(F). 10. Due to the above violations plaintiff owe defendant $9,000.00.
Dear Hayesb2, any more news on this? How was this resolved? Has the issue come up that this may not fall under your Ohio jurisdiction and SOL, but the state jurisdiction of the Creditor? Just curious, as I am fighting my own battle..
Basically the judge was against us from the getgo. He denied every motion we filed, he dismissed our countersuit, in the pretrial he was heavily favoring the plaintiff's attourney and they didnt even have 1 piece of evidence! Long story short, I made them an offer to settle for 1/2 of the amount. I was pretty sure we were going to lose anyways..If I have any advice, next time around I'd hire an attourney from the getgo and not do pro-se again.
What bull. These credit card companies are getting away with way to much and when it goes into collections they just sell it to numerous collections until one gets you to pay by harassing you enough. Im in PA and my hubby had a truck repoed 5 years ago by a bank in Ohio who sold it at auction for $9000 they never bothered us after that for any money. I just paid off my other vehicle loan I had with them last month and now they sold the bad loan to a collection agency who is demanding we pay $15000 for the truck loan and they have called me 2 times already. I hope they don't try to sue us because for that amount I will get an attorney. The bank figured we have money now because we paid off the other car. I think it's a joke how these companies can get away with this. If were forced to pay then I want a vehicle in return.
