Just got sued today for debt 72 days over 4 years old

[Sued-in-Texas]

I'm majorly broke and cannot afford the advice of an attorney, but used to be a legal secretary and can type if I know what words to use for my Answer.

This is the deal. Near the end of 2000 I went kind of crazy, thinking it was the end of the world and make a lot of purchases I couldn't afford. I kept paying for a couple of months before it was just impossible to continue paying.

My last payment was made, to Discover card, on 2/12/2001. I am being sued by an attorney in Georgia, who is the counsel for Stewart & Associates, P.C.

The original petition says that the Original Creditor assigned all rights in and to the account to First Select; then First Select assigned to account to a third party which appears to be Stewart & Associates.

I have been told that the statute of limitations for Texas, the state I am in, is 4 years. My last payment was made roughly 4 years and 72 days ago.

There is nothing in any attachment to the petition showing my signature. Also, the account number for the original debt has one less digit on all my bank statements than what is being shown in the petition but is otherwise the same. Should I check to see if the attorney in Georgia is licensed to practice in Texas? If so, how do I do that?

Or can I ask to have the petition denied due to it being over 4 years? Or, what should I do? Are there any wordings I can find on the Net to put in my Answer? I have less than $100 to my name and expenses will keep me in that state for at least the next month so I am going to have to wing this by myself -- with the hope that I can find the information I need on the Net.

I really hoped to pay all my debts by now and tried different moneymaking ideas but nothing ever panned out. I really wish I could have paid it -- and wish this wasn't coming to a head, because I still hope to one day make enough money that I could pay it, but that would still be years into the future.

Thanks in advance for any help you can give me!!

Michele

[Sued-in-Texas]

$19,287.61 plus all court fees, interest, atty fees, etc., etc.

[nimrod]

typically, a company that is not in your area will have to hire a local law firm to sue you. you may want to check this out:

http://budhibbs.com/debtcollectorpages/stewart_associates.htm

it may be just a bluff, but you might want to post additional info detailing just what you received from them.

Edited to add:

As I was saying b-4 my pc locked up...

do you have an actual case #?

an actual court date?

how were you presented with whatever papers you have?

and, yes, it wouldn't hurt to see if the att'y is licensed in TX - I'd bet that he is not - based on the above link...

as I was saying - it is probably a bluff - but don't treat it as such.

[devil21]

Ah, you are being sued by Credigy. The attorney might be Jason K. Green? If you want help with them, PM me. They fold quickly.

[Sued-in-Texas]

do you have an actual case #? Yes, the cover sheet of the papers I received by certified mail from a Constable in my county and signed by a Deputy District Clerk also includes a Cause number and states that the original petition was filed on April 11, 2005.

an actual court date? I don't think court dates are ever set before the defendant has a chance to answer, but there is an actual day by which I have to answer or risk having a default judgment against me.

how were you presented with whatever papers you have? Certified Mail, Return Receipt Requested (which is allowable in the State of Texas for serving papers)

and, yes, it wouldn't hurt to see if the att'y is licensed in TX - I'd bet that he is not - based on the above link... I can't really tell since the petition does not give the name of a law firm but rather just the name of a specific attorney -- but that attorney DOES list a Texas State Bar number under his Georgia address on the petition.

[Sued-in-Texas]

No, it's not Green. The only strange thing to me about this is that no law firm name is given, just "of Counsel to Stewart & Associates, Inc."

[Sued-in-Texas]

I didn't see it until now, but on the actual header part of the citation and Original Petition it says "Credigy Receivables, Inc. vs. [my name and p.o. box address]"

[Sued-in-Texas]

If a hearing date is set, I have to show up or default. Is the same true for the plaintiff? To come here all the way from Georgia would definitely got them more than they would be able to eek out of me, for I am truly a proverbial turnip in re money and/or assets.

Or do they not have to appear in person in court? I suppose they could hire some lawyer here to show up for them.

[codename_fortyseven]

The debt is past the SOL. Put that in your answer and file a motion to dismiss.

You could go the DV route as well.

I'd file some counterclaims for good measure as well.

All in all, relax. You are judgement proof from what it sounds like. They can't garnish your wages, because you are in Tx.

They are just trolling for defaults and hope you are a stupid consumer and stick your head in the sand.

I'd make them pay and report them to the Bar Association.

[KentWA]

I did not see it in your responses, did they sue you in the right court? They can only sue you in the county you live in.

You are going to want to assert SOL as an affirmative defense but you want more than just that as well, deny the debt and make them prove it. Any counterclaims you can come up with as well.

codename is right, most likely they are hoping to just get a default and will fold and go away when you fight it. If you have counters then you can likely collect from them.

[Sued-in-Texas]

Should my Answer be called "Answer" or "Motion to Dismiss" -- or do I have to file the two separately?

Which kind of counterclaims should I file? Would that be a part of my "Answer" and would that make it be called "Answer and Counterclaims"?

I'm not really interested in filing counterclaims, but if I need that in order to effectively have this thrown out of court........

[Sued-in-Texas]

Forgot to answer one of your questions. Yes, they sued me in the county in which I live.

[KentWA]

You need to file answers/defenses/counterclaims as one form and the motion to dismiss as a seperate one.

The reason for including counterclaims is first to make it obvious to plaintiff that it is not going to be a simple default and they may end up owing money to you if they proceed. Second is to ensure that if they do proceed you protect your position.

Most of the time they will settle out of court, the more work they have to do and the more risk they see to a case the more likely they are going to want to settle.

[Sued-in-Texas]

Are there any attorneys here that I could send you a copy of my drafts once I get them put together so you could see if I did it right?

[chava2002]

You might want to see if you can make them pay for filing a lawsuit outside of the SOL. I was able to find a lawyer in Texas that works on contingency.

[Sued-in-Texas]

How did you go about finding such a lawyer?

[DocDon]

Your State Bar referral program may be able to start you in the right direction...

[JoeDirtPharmD]

Maybe I read this wrong - did they FILE after the 4 year mark, or did you get SERVED after the 4 year mark? Big difference there...

[LadynRed]

JoeDirt, they FILED AFTER the expiration of the SOL - they missed the boat !!

[Sued-in-Texas]

And one of my credit reports (Experian) shows my first date of default as 3-2001. (They filed 4/11/2005 and I received the citation 4/26.)

Someone posted somewhere a place where I could find templates of legal briefs. You all know where I could find something to help me file a Motion to Dismiss, the Order for the Judge to sign to dismiss the case, and better yet an Original Answer of a Defendant in Texas? It would help me immensely in drafting these up.

I'll feel so good to finally get my Answer filed...!

Ladynred, I want to thank you again for being so responsive from the very beginning. I can't tell you how much the moral support has meant to me. THANKS.......!!!!!!!!!!!!!

Michele

[Sued-in-Texas]

Whew, it sure it hard to file pro se. There doesn't seem to be much online for help with templates or samples to give someone an idea how to go about drafting Answer, Motion to Dismiss and Order.

I'm also a little concerned about the fact that in some states a partial payment extends the SOL -- but have not seen any indication that Texas is one of those states.

I am having so much trouble finding out how to draft up the Answer, Motion to Dismiss and Order that drafting up counterclaims is the least of my concerns right now (though Maybe it should be, I don't know)...

I was hoping to get my Answer filed tomorrow (Friday May 6). If anyone has a sample you could even fax to me would you please PM me and I'll give you my fax number?!

[ms6073]

Michelle,

Have you seen Whychats "Guide To Answering A Lawsuit For Credit Card Debt- HOW TO ANSWER A TIME-BARRED LAWSUIT" http://whychat.5u.com/answer.html

Also, if you currently reside in Austin, I suggest that you make a trip to the Tarlton Law Library at the UT School of Law (http://tarlton.law.utexas.edu/):

Jamail Center for Legal Research

The University of Texas School of Law

727 East Dean Keeton Street

Austin, Texas 78705-3224

Phone: (512) 471-7726

The librarians at the library will be able to point you in the right direction to finding the data/books from which you can make copies of the reference materials.

[Sued-in-Texas]

Yes, I am in Austin -- thanks so much for the helpful information!

[Avenger against scumbags]

what ever happened to this thread? How did you end up with the lawsuit? Did you win? Did they (I assume it was Kyle Doviken) ever show up? Did you find a good attorney? Let us know!!! (I hope you chose to have an email when this gets answered!)

[Sued-in-Texas]

Well, I fought the case pro se (i.e. by myself) for a while, but then they sent me about 5 different new legal briefs that I would have to answer and it was getting ridiculous to try to do this without an attorney. I talked to one attorney friend who said that the fact that I was even fighting the case made them think I had some money (HA, fooled THEM, LOL).

Fighting them back did do me good in that it stalled for time -- the time I needed to figure out what in the heck to do. What I ended up doing was going Bankrupt, Chapter 7 -- again, pro se. It was hard but not impossible. The forms and instructions for the forms are online. It was about as much fun as doing income tax without help -- i.e., NOT -- and took me about 30 hours to figure out and fill out the answers. Some of the questions in bankruptcy required me to list applicable laws. That was the hardest part. I Googled around and found the information I needed. Never did enter a law library.

Once I filed bankruptcy both I (by letter) and the court (by letter) informed the plaintiff and all my creditors that they could not sue me while bankruptcy was pending. Then once the bankruptcy was official (which took a few months), they were all ordered to leave me alone.

I went bankrupt before the laws for bankruptcy changed Oct. 17 -- "thanks" to the plaintiff. If I had not made it in by the time I would STILL go bankrupt pro so, but it would have taken a little longer, been a little harder and cost a little more.

Re the court papers I filed: I attempted a Motion to Dismiss (based on being outside the statute of limitations) but that doesn't work in state court, just federal court -- at least not in Texas. What I really needed was a Motion for Summary Judgment. I actually did have an attorney friend willing to draft up a Motion for Summary Judgment for me, but he was in such ill health that was easier said than done. Plus, I realized that if I did not go bankrupt I might find others suing me in the near future -- so that the bankruptcy seemed the most rational route to take.

I hope that answers your questions!