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How do I prove SOL expired?


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OK, I know everyone says look at the CR. It is not listed anywhere in the CR, I have already been sued but had no time to put together anything. I've already had a the judgement set against me, I received some paperwork from the opposing lawyers asking me to list assets. (It's funny too, I never received a summons for a court date or anything. How did that happen?) Anyways, before I lost, I tried DV'ing the lawyers but they sent me a letter back saying "30 days is expired, however, this is what we have" and had a letter showing that the account was charged off in july of 1999. OK, I think I can get rid of this by pushing a motion to vacate based on lawyers being outside of SOL and having no right to sue. Could I contact the OC and ask for original contract? Could I ask OC for last payment received? If that doesn't work, is there law governing when a company can charge off a delinquent account? If so, I have paperwork provided by the lawyers showing charge off in July of 1999. That would be cool, say that state law dictates they can't charge off until nine mths after delinquency, etc...that would put them way outside SOL. Somebody hook me up.

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OK, I know everyone says look at the CR. It is not listed anywhere in the CR, I have already been sued but had no time to put together anything. I've already had a the judgement set against me, I received some paperwork from the opposing lawyers asking me to list assets. (It's funny too, I never received a summons for a court date or anything. How did that happen?) Anyways, before I lost, I tried DV'ing the lawyers but they sent me a letter back saying "30 days is expired, however, this is what we have" and had a letter showing that the account was charged off in july of 1999. OK, I think I can get rid of this by pushing a motion to vacate based on lawyers being outside of SOL and having no right to sue. Could I contact the OC and ask for original contract? Could I ask OC for last payment received? If that doesn't work, is there law governing when a company can charge off a delinquent account? If so, I have paperwork provided by the lawyers showing charge off in July of 1999. That would be cool, say that state law dictates they can't charge off until nine mths after delinquency, etc...that would put them way outside SOL. Somebody hook me up.

Unless you're in Wisconsin, it doesn't matter that it was past SOL...they can sue anytime. It's up to the Defendant to show up and use that affirmative defense.

However...you CAN get it vacated based on the fact that you were never served.

After that, you can start asking for all the documentation you want. And, I think the general rule is they can't charge off until 180 days after delinquency (6 months).

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That doesn't make sense to me, they can sue anytime? So if I show up and show that the SOL is up the judge throws it out...can the lawyers come back later and sue again then? That's confusing. Anyway, I was served but I received no notice of a court date. I still haven't found out if there ever was a hearing or what, if there was, I never knew about it. If the judgement was placed against me, could I put in a motion to vacate based on the SOL?

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Since you were served, you should have had to file an answer or an entry of appearance or something. That's when you could have/should have raised the issue of SOL. Your summons should have said at least something about some kind of date or timeline or something.

Dive is right...you can't raise the issue afterward. You have to raise the issue at the beginning.

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Well then, I'm screwed. I'm still going to call the courts today though and see if I can send in an appeal or protest on the courts steps. I fished up a document that the lawyer actually sent me showing a charge-off by the OC in July of 99. They sued in December of 04 so I think it would be fairly easy now to prove it was outside the SOL. I just couldn't put together a defense when it all went down; quite honestly it was for my wife (she was the one being sued), I'm in the Air Force and just don't have as much time as most people do and she, well, uh, didn't do anything...I don't think she cares. I'm telling you though, I'm going to fight this crap tooth and nail. I am so sick of these a$$holes screwing with me and all I'm trying to do is make a damn living. I appreciate the help of those that replied and I'll come back to this post and let you know how the situation develops. My credit has improved tremendously since I found this site though. I think there is room for improvement; I think that a lot of the stuff on the website is beginners stuff, we should build a portion of the site where there is a lot of case law and a links to firmly back up our assertions. Anyway, I'm babbling, talk at you later.

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C M Chase or divemedic...I was able to find some more paperwork and I called the OC. It was a written contract to use Bally's fitness centers for a year; the account was opened on 10-23-1998, they say a $40 payment was made on 12-23-1998, then no more. Now when did the SOL officially expire? Was it 12-232004? It looks like the lawyers filed their paperwork on 1 Nov 2004...so did they just make it in time? The paperwork they sent with the complaint only listed the date of charge-off and the date of last payment was blank...I don't think they know when the date was obviously. Help me out dudes.

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As I said before, if you were properly served I don't think you have a leg to stand on. As long as procedure was followed, you can't go back and rewrite history. If you knew about the case and chose to ignore it, you cannot go back and get a do-over.

Sorry, I don't like giving bad news, but I just don't think it is possible.

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I did send in an answer to the complaint, then I received the paperwork back from the courts requesting more info and a check (oops). I sent it all in and sat and waited. Last week I received a letter from the plaintiffs attorneys saying that I lost the case and they wanted my wife's financial info...fortunately everything is in my name and she has no job nor checking account nor anything for that matter. We sent them her stuff and then I got pissed because I never received a date for court or a hearing. I called the courts this morning and they said something fishy is going on. They're supposed to call me back so I am waiting on that right now. Just in case the judge hasn't ruled yet, I want to be able to present this info. I might go in and just say it is time barred and that the account was open on such date and they couldn't sue anymore. The lawyers don't have payment info and wouldn't be able to provide prove unless we convened for a later time. That's all I have right now.

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OK, I just got off the phone with the courts...they said that my check was never received by the courts and that the court entered a default judgment. The clerk is sending me a motion to vacate kit and said that even though I can prove I sent in the check and that it was cashed, all that does for me is waive my next filing fee requirement. I gave them the check number and told them that I could show it was cashed. They said that's great, but that I still have to file a motion to vacate again ASAP. So that really sucks, but at least I still have another chance. I have more info too. I sent a letter of validation to the lawyers and they sent me this back, "Dear XXX, I represent the plaintiff Financial Credit LLC in this matter. I received your December 23, 2004 letter requesting validation. I note that you were sent an initial collection notice on August 9, 2001 (I don't have that BTW). That notice required you to request validation within 30 days of the date of the notice. You did not make such a request within 30 days. Thus your recent request for validation is out of time. However I will treat you letter as a Request for Production of Documents. Enclosed please find a computer printout of information provided to us by the previous creditor. I look forward to working wit you toward a resolution of this matter." So they didn't validate but they did provide this paper showing the charge-off and amounts owed. People, please help me get my butt in gear!

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Oooooooh, what turds. That is NOT a Request for Production of Documents. Once you get this vacated, if they come after you again, you can ask for a REAL Request.

There are MANY more things you can ask for and make them give you. A computer printout doesn't cut it. If it were me, I would write them back and tell them that your request for validation was NOT part of Discovery and that you will propound that when the time comes and that you are still disputing the account in question.

Good job getting it to the vacate position...this will give you everything you need if it's granted. :D

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My bad ladies and gentlemen. What happened is after I sent in my answer to the original complaint, the courts sent back that I forgot the check for filing. I sent them the check and figured all was well because the check was cashed. Well, I don't know what the courts did but the check was never applied to my case docket! So a default judgement was entered against me! However, I contacted the courts to see what the hell was going on and they told me that the check was cashed but for some reason they didn't know it was from me!?!! So the courts have now sent me a motion to vacate packet. That is why I am trying to determine if the lawyers were time barred. If the last payment for the account was made on 12-23-1998 for a written contract, then when would be the last date for them to file suit? I've got to go to work now but I'll try to answer any questions you might shoot at me. Thanks for the help.

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The last day to be within SOL in NJ would be 6 years and one day from the cause of action. So, if a payment were due 12-23-98, they would be time barred from 12-24-04.

First, get it vacated. If you filed a timely defense and the court screwed it up, that should be enough to be vacated. Why did you have to write a check to answer a summons? You have to pay to defend yourself in NJ? That sounds odd.

Also, once the judgement is vacated, bury them in discovery. I am betting that they won't have the required paperwork.

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They want a $15 check for a filing fee when you answer the complaint. I don't know how I can swing this getting vacated. Here is what I want to do. I already contacted the OC and they said the account was opened 10-23-1998, they claim a payment of $40 was made on 12-23-1998, I'm thinking about requesting a fax of when the account was opened and making that "exhibit A." I'll take the "validation" paperwork the lawyer sent me with no payment ever made and claim the company was time-barred due to SOL. What do you think of that? Here is one more question. If I use the 10-23-1998 date as the ticking date for the SOL, then that means 10-24-2004 was the last day to sue right? Now is that that last day to file suit; i.e., the very last day to file suit in court or is that a different day.

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OK, that sucks. It looks like they filed within a couple days of the SOL expiring then...not really sure what to do now. I was served and the SOL wasn't busted...no foot to stand on in a counterclaim...the amount they sued for is way more than what it should have been though. Could I take that route in court?

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