I just got served a summons

[CalypsoBlue]

I am in California I just got served a summons on an old credit card debt. Unfortunately it shows that I made three $25.00 payments Jan, Feb. and March of 2000. I actually don't remember who I was making these payments too, but then I was so gorked out on morphine at the time (work injury) that a CA took advantage of my heavily medicated state. These payments were withdrawn from my account via ATM so they have no written records of me making these payments or agreeing to the payments. All the credit reports showed date of last activity as of Sept 1997. So this debt has dropped off all of the CRA reports. The attorney filed the lawsuit in April but just served me today (go figure). So am I “officially” past the SOL? Is the SOL tied to the original debt and does a subsequent payment by itself without affirming the debt in writing reset the SOL clock?

How do I respond and do I use copies of my credit report showing date of last activity and the fact that this debt has dropped of all CRA reports.

FYI I am 100% disabled and collect SSDI a workers comp settlement and disability retirement. My house is homesteaded and is worth exactly what the $150,000.00 homestead allows. (Not counting the $50,000 I owe the bank). So do these guys think they call squeeze blood from a stone?

[anti-something]

its not so much they think they can get blood from a stone, its that if they get a judgement it will be around for a whole lot longer time than if they didnt get one.

i believe there is a sticky in the 'is there a lawyer in the house' section that deals with cali law, go read it, its got a ton of info in it, it should give you a clear answer on the SOL question.

[DocPC]

SOL in CA is 4 years and it is a felony to try to collect on a time-barred debt.

[CalypsoBlue]

Oh look what I found

http://www.mpbf.com/meeart6.htm

ANSWERS TO COLLECTION QUESTIONS FROM MEMBERS OF THE AMERICAN COLLECTOR'S ASSOCIATION

I am the current ACA/MAP Compliance Chairman for the State of California. As such, I am available to answer questions from members with respect to various issues. Often, I receive questions which are outside of the traditional areas I write about in my Tales From The Frontline articles, which are in the areas of collection agency defense under the FDCPA and state laws.

Recently, we received an inquiry from an ACA member, to whom we have provided a written response. Because I believe the answers to these questions would be of general interest to the CAC membership, I am publishing the questions and answers here. Either I, or one of my staff of attorneys who work with me in Sacramento, are available to answer questions from CAC members. These attorneys include June Coleman, and William Muñoz; and, of course, you always have an excellent resource in Ron Sargis, CAC's general counsel.

Question: If an account is barred by the statute of limitations (over four years old) and we receive a payment on it, will the payment activity bring the account back into statute?

Answer: Generally, no.

A debt or obligation barred by the running of the statute of limitations is unenforceable, but the discharge or satisfaction of the “moral obligation” which remains is viewed as sufficient new consideration for a new promise to pay, giving rise to a new, enforceable promise to pay, distinct from the old unenforceable obligation. General Credit Corp. v. Pichel (1975) 44 Cal.App.3d 844, 848; 1 Witkin, Summary of California Law: Contracts (9th ed. 2001), p. 246, §242. Thus, absent some writing signed by the party to be charged thereby, payment, in and of itself, will not revive a cause of action which is time barred. Civil Code § 360; Clunin v. First Federal Trust Co. (1922) 189 Cal. 248, 249; see also Witkin, supra, at 246, § 242.

However, if the obligation sued upon constitutes an open book account, the statute of limitations begins to run from the date of the last entry on the account. Code of Civil Procedure § 337(2). But an open book account becomes closed, and the statute of limitations begins to run, once the account creditor ceases to extend credit on the account and there is no further activity on the account other than payment being made. RNC, Inc. v. Tsegeletos (1991) 231 Cal.App.3d 967, 972.