Sign in to follow this  
MikeyC23

In in court now, being sued for old debt - SOL not working!!

Recommended Posts

Here's my situation:

--I charged off a old credit card debt in 1998.

--I received a summons in 11/03' to appear in small claims court on 12/03'

--Appeared in court and my defense was SOL is 4 years in FL

--Judge was not sure if debt was 4 years and to re-set trial in 5 weeks so scumbag lawyer can prove debt is within SOL

--Now, in 2/04' - case continues and dumbass lawyer has no prove

--Again, I tell the judge that the SOL has expired BUT defense now claims Date of Last Payment on old charge off was 10/99' and not in 1998.

--SO, judge again re-sets trial for 3/04'

NOW - the judge in the meantime asks ME to goto my bank and pull up all my checks I wrote in 1999 and to bring them back to court and in the meantime the scumbag lawyer has to bring proof that I made a payment on the old charge off in 10/99' which is within the 4 years(SOL). So, I have to wait about a week or two for my bank to do some research and pull up all the checks I wrote in 1999.

Please help me! This judge is making this more difficult than it already is..... The Collection Agency that is sueing me in court is NOT licensed and bonded in my state.(But I did not tell the judge because I forgot).

Originally in 11/03' when I received the summons, I sent the scumbag lawyer/Collection Agency a ceritified/rr letter disputing the summons and demand to validate the DEBT within 30 days according to the FDCPA and they still have not done so.... The scumbag lawyer never said they received it but I had proof BUT the judge did not care......

My pre-trial date is re-scheduled for the 3rd time in 3/04' BUT I did received a letter yesterday saying "ORDER INVOKING RULES OF CIVIL PROCEDURE. Pursuant to Rule 7 Blah Bllah, this case shall proceed under the FL rules of Civil Procedure".

DOES THIS MEAN THAT MY COURT DATE IN 3/04' IS NOW GOING TO TRIAL????

PLEASE HELP? Any advice would be greatly appreciated!! Thanks! = )

Share this post


Link to post
Share on other sites
Here's my situation:

--I charged off a old credit card debt in 1998.

--I received a summons in 11/03' to appear in small claims court on 12/03'

--Appeared in court and my defense was SOL is 4 years in FL

--Judge was not sure if debt was 4 years and to re-set trial in 5 weeks so scumbag lawyer can prove debt is within SOL

--Now, in 2/04' - case continues and dumbass lawyer has no prove

--Again, I tell the judge that the SOL has expired BUT defense now claims Date of Last Payment on old charge off was 10/99' and not in 1998.

--SO, judge again re-sets trial for 3/04'

NOW - the judge in the meantime asks ME to goto my bank and pull up all my checks I wrote in 1999 and to bring them back to court and in the meantime the scumbag lawyer has to bring proof that I made a payment on the old charge off in 10/99' which is within the 4 years(SOL). So, I have to wait about a week or two for my bank to do some research and pull up all the checks I wrote in 1999.

Please help me! This judge is making this more difficult than it already is..... The Collection Agency that is sueing me in court is NOT licensed and bonded in my state.(But I did not tell the judge because I forgot).

Originally in 11/03' when I received the summons, I sent the scumbag lawyer/Collection Agency a ceritified/rr letter disputing the summons and demand to validate the DEBT within 30 days according to the FDCPA and they still have not done so.... The scumbag lawyer never said they received it but I had proof BUT the judge did not care......

My pre-trial date is re-scheduled for the 3rd time in 3/04' BUT I did received a letter yesterday saying "ORDER INVOKING RULES OF CIVIL PROCEDURE. Pursuant to Rule 7 Blah Bllah, this case shall proceed under the FL rules of Civil Procedure".

DOES THIS MEAN THAT MY COURT DATE IN 3/04' IS NOW GOING TO TRIAL????

PLEASE HELP? Any advice would be greatly appreciated!! Thanks! = )

When a consumer intends to use the SOL as a defense, the consumer must provide the court with proof that the SOL has in fact run out. You should have already had all of the documentation in order before you showed up in court. Just get copies of all of the checks you wrote in 1999 like the judge has asked you to do. If you are correct, that should be the end of it.

And BTW, there is nothing in the FDCPA which requires a CA to validate a debt within 30 days.

Share this post


Link to post
Share on other sites
I did received a letter yesterday saying "ORDER INVOKING RULES OF CIVIL PROCEDURE. Pursuant to Rule 7 Blah Bllah, this case shall proceed under the FL rules of Civil Procedure".

DOES THIS MEAN THAT MY COURT DATE IN 3/04' IS NOW GOING TO TRIAL????

Small claims procedure is fast & loose. Your case appears complex enough to the court that the court wishes to go with the more formal set of rules, and those rules allow for things like interrogatories, depositions, requests for admissions, offers of (and demands for) judgment, etc. Get a lawyer, or read up yourself (try Trawick's) and take advantage before you have advantage taken of you. You'll also need to get forms ... see if you can get some help at a local law school that has a program to help you, or just its library.

A request for production for the entire payment history on the account, and/or some interrogatories to the same issue would probably provide you the proof of the date of last payment out of the plaintiff's own mouth ... nonetheless you should have your banking history ready.

Share this post


Link to post
Share on other sites
The Collection Agency that is sueing me in court is NOT licensed and bonded in my state.(But I did not tell the judge because I forgot).
It wouldn't hurt to get a letter to that effect from the Dept. of Financial services. http://www.dbf.state.fl.us/ It might help convince the judge to stop the case.

Also, if no validation, Brennan v. Spears might help you.

http://www.creditinfocenter.com/rebuild/debt_validation.shtml

Share this post


Link to post
Share on other sites

P.S. - SOL is working, or you'd have been slapped with a judgment by now. You just have a plaintiff's lawyer who refuses to lay down and die, and a judge willing to give them the benefit of the doubt.

The Judge has asked you both for proof. The burden of proof is theoretically on you (which is why you're being asked for checking account records--be sure you bring your statements as well as your checks), but in reality the proof is available from the plaintiff ... you should request the proof from them ASAP by request for production, interrogatories, and request for admission(s) to tie that date down. If you don't find any payments later than about 30 days before four years prior to the date the lawsuit was filed, you should be able to request admission from the other side that SOL has run, and then move for (and get) summary judgment in your favor on the basis of the plaintiff's admission.

Share this post


Link to post
Share on other sites

The plantiff claims I made a payment on 10/2/1999. So, the judge asked that I get a copy of all my checks from 8/99' to 10/99'. I called my bank and it will cost about $175 bucks since my online records only go back to 2000. So, I only have to pull up 3 months of checks instead of 12 months. So, when I get these statements and show the judge AND the plantiff does not show his proof (because he doesn't have any), I should be ok. Right?

Plus, I found my old credit cards slips and have proof that my last payment was on 7/1998 and in my 9/1998 statement, I was 60 days past due with a late charge and over the limit charge and so forth. Could I use that as well to show that was my last payment on the old credit card? The 9/1998 statement is the last statement I kept since I didn't pay the credit card anymore.......

Thanks! = )

Share this post


Link to post
Share on other sites

This is my take on the issue.

1) I don't see how providing checks from 1999 will prove

you did not make payment. You could have sent in a

money order or even cash in the mail or paid by many

other methods.

2) I bet my wife cancelled many checks (voided) and these

would be missing from bank copies. Thus leaving an opening

for the Judge to think one of these was a payment to them.

Most banks also have statements that list the numbers of checks

processed. I would have it also to show all checks processed are

accounted for! (missing 598 but no bank record of processing 598)

I would be great to have a copy of all their invoices and have it

reflect no payments since that date! Maybe via discovery you

could obtain this?

Share this post


Link to post
Share on other sites

I can't get too deep into this matter, but my suggestion as a practical matter would be that if you have yet to order the checks, you call and tell the plaintiff's attorney what it will cost to get the checks and offer the plaintiff $150 to dismiss the case and delete it from your credit reports on that basis.

The Plaintiff's attorney may want out of this as badly as you do, and may jump at the chance to collect a pittance.

But if you have to get the checks, get 'em.

Share this post


Link to post
Share on other sites

The old charge off is OFF my credit report already. The collection agency is OFF my credit report. I have NO derog on my credit file.

The Collection Agency/Lawyer that is sueing me is 4 hours away and they did not show up at the pre-trial dates BUT hired a scumbag lawyer who lives in the area to take the case. He doesn't know anything about it until he opens up his little case file on it. Should I call the Collection Agency/Lawyer personally or avoid them as I have been told by everyone on this site? The collection agency & law firm that are sueing me(that live 4 hours away) are at the same address.

I know for a fact that he cannot prove I made a payment on 10/1999 and they just gave the judge a bogus payment date. Even if I get a copy of all my checks for the 3 months, what will that prove? But I do have a copy of my credit card statements for 1998 showing last payment and 2 months later - showing the account 60 days past due... but don't have a statement after that.......

AHHHHH!!!!!!!!!!!!!!!!!!!!!!!!!!!

Share this post


Link to post
Share on other sites

I would not put it past them to provide proof

you made payment! Any document can be made showing

this.

How hard would it be for them to show a document (ledger)

that showed payment? Not hard at all. I don't believe the

judge will take the time to verify it as accurate.

You need to show you did not make this payment, or at least

tip the scale your way showing why it is unlikely you did.

Those (2) statements will help, but if you had the rest showing

no payments,,, What about you Credit reports? Do you have

copies of that time frame showing the balance stayed the same

or went up with interest?

I believe (ask attorney) you can add the extras costs to a

counterclaim if you have not already.

Share this post


Link to post
Share on other sites

On my credit report in 11/02' - the Date of Last Activity for the collection agency/lawyer was 3/99' - Which is over 4 years!!! As of 11/03' - the collection agency/laywer has been removed! SO - this account they are sueing me for is not even on my bureau anymore!!!

I told the judge this but he didn't want to hear it! = )

Share this post


Link to post
Share on other sites

Your honor, although it's very difficult to prove that no payment was made in October, 1999, the weight of the evidence is as follows: my canceled checks from the period you asked me to pull do not reflect any payment to the plaintiff. My bank statements are consistent that no other checks were posted to the account. Additionally I have credit card statements that suggest the delinquency began in August, 1998 and a credit report indicating a Date of Last Activity for that account in March, 1999. The DOLA is significant because according to the Fair Credit Reporting Act it must be shown as 180 days after the beginning of the ultimate delinquency on the account. The credit report was pulled in November, 2002. While the DOLA should not be updated in the event a payment is made that does not cure delinquency, common practice in the industry is to update DOLA regardless of that restriction on any occasion when a payment is made. The reason for the practice is that it extends the time that a tradeline may be shown on a credit report, essentially impermissably extending the time that a derogatory item appears. Finally, there is my own sworn statement that I did not pay this creditor after July of 1998. It's not something I'm proud of, and were circumstances different you would not be seeing me in this courtroom. However, since I have been haled before the court at this late date, I am forced to muster what records and recollections I can, which is exactly why the legislature created the Statute of Limitations as a statute of repose, to allow people to live their lives without being surprised by creditors bringing stale claims.

Plaintiff would have you believe <whatever piece of thin evidence they have> as a reason to reset the statute of limitations in this case. I would submit that if the creditor did indeed post a payment to the account, they did so in error; however given the industry practice to reset DOLA whenever the opportunity arises, I believe it is much more likely that the posted item is a recent fabrication.

Share this post


Link to post
Share on other sites

All good stuff. Besides, this CA isn't even licensed to collect in your state!! This HAS to mean something to the judge. I hear a lot of judges come down hard on CAs that aren't obeying state lic rules.

If you can, get some documentation of this! You might already have read this and gotten it all sorted out, but here's the link about lic laws and such. If nothing else, this should kick them in the butt. (Just don't forget again!) :wink:

http://www.debt-consolidation-credit-repair-service.com/phpBB2/viewtopic.php?t=12017&highlight=

Share this post


Link to post
Share on other sites

THANK YOU!! THANK YOU!! AND THANK YOU!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

= )))))))))))))))) You guys have made me feel better already!!

Share this post


Link to post
Share on other sites

In light of the court's decision to shift to the full rules of civil procedure, this might be occasion to ask for a continuance so that discovery can be undertaken. Otherwise, certain items that you have (checks, bank statements, credit reports, etc.) might be excluded as hearsay ... you need to look into whether this change could screw you. Evidence like that needs a foundation ... someone from the bank or the CRA to come to court and say it's accurate (the only evidence you can really lay your own foundation [without another witness] for are the copies of your checks--you can introduce the checks as yours and say they're all the checks you wrote in those months). Plaintiff will likely bring someone to court to vouch for their records. The court might not be generous with your third-party records--but there may be exceptions to the hearsay rule that get them in over the plaintiff's objections, or the plaintiff may simply fail to object, or the judge may simply overrule the defendant's objections knowing full well the items shouldn't come in, but simply feeling them more probative than prejudicial. and letting them in regardless. Judges have a lot of power in their own courtrooms, and they know that most of what they do won't ever be tested on appeal.

A key question in unraveling what's happening here would be to see whether the Plaintiff asked for the rules of civil procedure to be invoked. If so, the Plaintiff is clearly up to something. Did the plaintiff ask for the rules orally in the last hearing, or file any paper asking for the rules?

If they judge did it on his own, this is a tactic to push for settlement. In essence, he's telling both sides this case is going to get bigger than it's worth. Unless you can find a NACA attorney right quick, you might want to try telling the plaintiffs that even if they win this case on fabricated evidence, you'll be going after them on fraud, and you'll be contacting the Florida Bar to go after the licenses of any attorney who's been involved in helping them defraud the court. However, you'd be willin to settle for this pittance...

Also, this situation gives you the opportunity to have a court reporter present at the trial ... how is that 03/04 hearing identified in the document that sets it? Pretrial? Final Hearing? Trial?

If it's a "final hearing", pretrial or trial, you want to move for a continuance so that you can conduct your discovery ahead of even the pretrial.

Share this post


Link to post
Share on other sites

All of the above arguments could work, or you could get the judge pissed off, which you absolutely do not want to have happen. I would get the judge what he asks for, the bank records (copies of checks). If he finds in your favor, he can award you costs. If you don't do what he wants, he can rule against you just because you ticked him off. If the CA bought the debt, the licensing issue may not be a defense, since they would now be the creditor.

Share this post


Link to post
Share on other sites
All of the above arguments could work, or you could get the judge pissed off, which you absolutely do not want to have happen.
Actually, you do ... just not at you! :twisted:

The judge seems to have identified this case as a battle between the defendant's canceled checks and the plaintiff's payment records. That would be fine and dandy if the judge were hewing to small claims rules. Shifting to civil procedure is what should give folks pause that something else is going on, and that defendant needs to put things together better than if it were staying under small claims rules.

Share this post


Link to post
Share on other sites

Judges have an incredible amount of leeway when it comes to rules of civil procedure. I would just do what he wants. If you have proof, but the CA doesn't, he will most likely award in your favor.

Share this post


Link to post
Share on other sites

This discussion is very interesting and lends credence to the saying old debts never die. It also shows the incompetence of small claims courts where judges often have little more credentials than an Associates Degree! Sometimes not even any college at all! The judge here should merely have requested the Plantiff produce evidence of payment and that should have ended the matter. Going through old check registers will not adequately prove payment was never made by the defendant, so IMO this so-called judge was cuckoo! (like in the clock!)

Be aware that lawyers DO LIE under oath in court. I am aware of cases in Delaware Court of Common Pleas, NCC where creditor lawyers have received interrogatories on time, yet claimed otherwise in court because the items were not sent Certified Mail! The creditor wins by default. Discover Card wins tons of defaults this way and judges tend to just let it slip by.

In addition, does it REALLY matter if so and so is licensed or not? The reality is if the defendant hasn't hired counsel or isn't in court to defend himself in a legal proceeding, it's usually all in vain.

Share this post


Link to post
Share on other sites
Thank you all for your input
Your welcome. One last thought: learn what constitutes a foundation for the plaintiff's records, and be ready to object to the judge taking any cognizance of them in the event the foundation is incomplete or totally absent. Typically, a records custodian will need to be called as a witness. In a full-blown court case, the defendant's attorney would ask questions on cross-examination to validate or debunk the records custodian's knowledge as to the keeping of those records and their accuracy.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.
Sign in to follow this