past 30 day validation, SOL & sm claims court

[Vermont Girl]

Hi guys! I'm new to the site although I have been reading and gaining knowledge here. Cap. One has sent a law firm/CA after me. They 1st contacted me in June of this yr so I responded w/ a letter requesting validation. They finally responded in NOV. I was going to ask advise but put on back burner & figured they missed the 30-day response time. Well today I got a small claims court notice. My 1st ques. - they took 4 mos to get back to me - I thought they only had 30 days to respond - so what does that mean? 2nd ques - the SOL in VT is 4 yrs - does SOL start after the last payment made on the acct or is it the last charge to the acct? My last pymnt was made in Sept 2000 that would put me in the clear, but they kept chrging my acct late/over limit fees until may 2001, that would mean I still have 5 mos. I have to ackowlwdge the notice to the court by Jan 9 and then I have 20 days after that to answer the ackowledgement as to how I want to proceed. Any advise would be greatly appreciated as I have no money for a lawyer. Legla Aid in VT is only offered if I kill someone and I don't want it to go that far!!!!!

[willingtocope]

Welcome! Hope we can help.

First, no, as long as they put "in dispute" on your credit report, they can take as long as they like to respond to a DV (okay, maybe within a year).

Was what they sent actual validation? Do a search to make sure.

Second, be sure to respond to the court papers. Basically, you want to only admit name and address, and reply "Lacks sufficient knowledge to affirm or deny" to everything else.

And, basically, SOL begins on the date of the billing statement in which the account went delingquent (give or take a month). Doesn't matter if the creditor kept charging you.

[Vermont Girl]

Thanks so much for responding so quickly. Yes, the validation was extremely thorough - they sent copies of every statement issued on acct! Since it has been 4 yrs. since the acct went delinquent and that meets the SOL for VT, doesn't that mean they can't sue me so they can't take me to small claims court? Isn't the summons and complaint for sm cl crt irrelevant?

[Gryffindor]

Thanks so much for responding so quickly. Yes, the validation was extremely thorough - they sent copies of every statement issued on acct! Since it has been 4 yrs. since the acct went delinquent and that meets the SOL for VT, doesn't that mean they can't sue me so they can't take me to small claims court? Isn't the summons and complaint for sm cl crt irrelevant?

Nope, you must answer the complaint! The SOL just gives you a defense. It does not prevent the creditor from trying to sue you.

[Vermont Girl]

I'm definitely going to respond to the court papers - I had an incident in the past where I was given ill advise about how to respond so forgive me for asking so many questions. When I send the answer back do I mark the "I dispute this claim and request a court hearing"? They request a reason for dispute - should I write the "SOL has expired" or should I write what Willingtocope suggested and write "lacks sufficient knowledge to affirm or deny" in that section????? Also, does anyone know where I can get a lawyer or someone to help represent me in court for a nominal fee. I've never been to court before and don't feel confident enough to go through it alone. Ignorance isn't bliss - it can be very dangerous in certain situations. Thanks again you guys for your help!!!

[willingtocope]

No...I was wrong...the "lacks knowledge" thing is for when they haven't sent you validation. Sounds like they've done most of that correctly.

So...yes, if you can afford it, get a lawyer to represent you. I can't put my finger on it right now, but there is a reference here somewhere to something like the National Association of Consumer Advocates that lists lawyers who deal with consumer rights. Do a search to see if you can find that...

You might also do a search on RecoveringAttorney's posts...I know he's given advice on responding to these things...

[admin]

Here's something that should help.....

Responses to Interrogatories

The response to an interrogatory is called an answer. The Answer is your written response to the statements in the Complaint. You MUST respond to a lawsuit within the specified time. If you don't, you may automatically lose. At the very least, you keep your right to argue about this matter in court, and to be notified of further proceedings. If you do not file an Answer, you may lose your chance to say how much you think you should pay. However, you should know that filing an Answer may increase the court costs and attorney fees that you may owe if you lose the case.

In your Answer, you do not have to tell the entire story or make legal arguments. As a matter of fact, don't tell your side of the story in your answer. You may unknowingly give away information that is not to your advantage. You do need to state whether you agree or disagree with each statement in the complaint. Your answer should be typed, but if you cannot have it typed, you can neatly hand write it, using print (not cursive writing). Your answer also must be on 8 1/2 by 11 inch paper (the size of this page).

Your Answer (response to Interrogatory) should include:

1. At the top, the name of the court, the name of the plaintiff and defendant and the court number, if there is one. (All of this information will be found on the Complaint.)

2. A statement saying what you agree with and what you disagree with in the Complaint.

For example, "I admit statement one in the Complaint; I deny statement two in the

Complaint." If you do not agree with any part of a paragraph, deny the paragraph, then explain which parts you disagree with and why.

3. If you think the plaintiff owes you money, explain why (this is called a "Counterclaim").

4. Your signature, address, telephone number and the date.

5. You must deliver a copy of your Answer to the plaintiff's lawyer, or the plaintiff if s/he does not have a lawyer, within 20 days after the summons and complaint are delivered to you. If you do not, you will be in "default" and plaintiff can win without any further notice to you. If you deliver the Answer in person, you should get a stamped "received"

In some cases, you may find that you can't answer, feel that a question is an invasion of privacy, or don't know the answer the question. In addition, you may feel that you need more time to answer a question. There are a number of responses to interrogatories that are appropriate, and provide a good defense in such cases. Just remember, though, that if you file and answer and you give a different one in court, your testimony will become suspect. Remember to add a line above your signature that says, "Defendant reserves the right to amend these answers as circumstances require," so you can do so if the facts change.

Answers to discovery questions if you don't know or don't feel you should answer as true:

1. DENIED - defendant does not have information sufficient to admit or deny the matter at this time

2. DENIED - this request calls for a conclusion of law and is improper.

3. DENIED - this request calls for admission of matter defendant has denied in her answer and thus it is improper.

4. Defendant ADMITS receiving the validation letter at XXXXXXXX but DENIES the remainder of Question # 12 as it calls for a conclusion of law.

Affirmative defenses for debt collection:

These are legal responses to a Plaintiff's claim, that even if his complaint is true, it acts to bar his legal right to bring the action. Generally failure to include an affirmative defense in ones answer to a complaint is a waiver of the right to that legal defense. An affirmative defense can be used to dismiss an action on legal grounds even if the complaint of the Plaintiff is true.

1. Failure to Comply with Fair Credit Practices.

2. Failure to Comply with Fair Credit Reporting Act.

3. Failure to comply with applicable State Banking laws and requirements

4. Failure to comply with applicable Federal Banking law and requirements

5. Denial of personal guarantee by way of insertion of title with signature

6. Denial of intent to accept terms of Plaintiff Bank by marked modification

7. Terms and or rates of interest and payments were not in compliance with either state or federal restrictions.

8. Denial of guarantee by way of notice under State Law.

9. Defect in documents upon which the Plaintiff bank relies by law.

10. The Plaintiff failed to mitigate damages by selling out collateral on a timely basis and/or at an appropriate price.

11. The Plaintiff failed to comply with normal and accepted business practices

12. The Plaintiff was not in compliance with the requirements of the commercial code.

That should get you going.