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Served Yesterday; What Next?


rlbarth
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1. Who is suing you? MBNA America Bank via Korn Law Firm

2. For how much? $5,900 + costs, etc.

3. Who is the original creditor? MBNA

4. How do you know you are being sued? Was served yesterday

5. How were you served? Were you served? Process server came to my door.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? NONE!

7. Where do you live? South Carolina

8. When is the last time you paid on this account? May or June 2001

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or B) looking it up online (many states have this information posted daily). According to the cort website, it's "pending" The papers I have are stamped with the clerk of court stamp and a case number.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Many times; always comes back verified.

11. Did you request debt validation before the suit was filed? No

12. Did you receive an interrogatory (questionnaire) regarding the lawsuit? No

Last payment on this account was May or June 2001. Went through Arbitration in November 2001 (that's attached to the paperwork too).

Is it just me or is this WAYYYYY beyond SOL? I found a template for an answer on the SC court website After the appropriate heading, I chose "I deny I am responsible at all" and entered the following as an explanation:

Pursuant to South Carolina Code of Laws, Title 15, Chapter 3, Article 5, Section 15-3-530, an action upon a contract, obligation, or liability, express or implied, adheres to a three year statute of limitations. This summons, filed with the court by the plantiff on November 29, 2005 in the County of Greenville, State of South Carolina, does not meet the prescribed requirements set forth in above said statute of limitations code.

Is that sufficient? Should I put something else in there?

Thanks for your help!

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Sounds good. I think you should be OK with that. Did you get a copy of all the documents with the filing? Is there a copy of the arbitration award and all bills attached to the complaint? That is, are you sure you are beyond SOL?

If so, can you counter sue for misrepresenting the status? Does anyone know what SC law says on this?

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The only documents were a civil action coversheet, some rules about ADR, the actual summons, the actual complaint, a copy of the National Arbitration Forum decision, and an affadavit in support of Judgment signed by an MBNA person (and notorized).

There were NO bills or statements attached.

The paperwork is actually all in my maiden name. I've been married for over 4 years. I quit using this card before getting married.

I've read that SOL in SC for open agreements is 3 years. (Even found the statement in the code of laws)

Looks to me like I'm beyond SOL . . . And they are SOL for going after me on this one 8-)

Honestly, I'm not worried about countersuing for misrepresenting status. I just want this to go away.

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All looks SOL.

Real concern is this arbitration crap. What EXACTLY did you agree to/admit in the documentation?

This is why you ALWAYS say NO to arbitration, even if the contract/CC agreement had a clause in it, FDCPA overides any arbitration clauses in consumer debt agreements, so you dont HAVE to enter into any arbitration ever.

You need to DV them right away. The summons is fiurst contact, so by al means DV them. Yes MBNA is an OC, but you still can DV them, they just aren't barred by the "no collection activity until validation" clause. Important issue is to get them to send you debt collection letters in the MAIL... aka use of Interstate Commerce means in the collection of a debt, so the lawfirm is officially a DEBT COLLECTOR for FDCPA purposes.

Get your CR's and as part of your DV request state you DISPUTE all claims regarding this alledged debt. They must then report to the CRA's the TL as "diputed". If they DONT, you have them on FCRA violations as well.

This is your violation collection period. Which you can then use once prepared and documented to either countersue or file seperate Federal suit for FDCPA/FCRA violations.

Example: the lawfirm, on the summons, if they simply list a "lump sum" then they have violated FDCPA for "false/misleading" statement regarding the status/character of a debt. The reasons being that a "least sophisticated consumer" might be lead to believe they had $X in charges to be paid, etc. Since a "lumpsum" doesn't include a thorough breakdown of the elements of the claim... interest, fee's, charges, payments... it's possible YOU or say your "bill payer husband" might mistakenly think this was an invoice for $X.

Caselaw is out there on this, and it can be used to directly attack the lawfirm.

If there end up being healthy FCRA violations with MBNA, the best thing in your suit is to concentrate on FDCPA violations toward the lawfirm as countersuit fodder, and save FCRA violations with MBNA for a direct Federal suit against them.

If you bring MBNA violations at all into the thier civil case, you may be required to being ALL MBNA violations in or be barred from pursuing in Fed court later if you dont. Complex reasons in law behind this, just make sure you get up to speed and understand all aspects of the case. Alot of reading ahead for you.

________

PERCOCET REHAB FORUM

Edited by uwackme
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This sounds like they are suing to confirm the arbitration. The SOL won't help you there, unless the arb was brought after the SOL expired. But even then, if you ignored the arb, well....

There is a lot of info on the web, but you don't have time or the luxury of leverage. Get thee to a lawyer so you can get some cogent advice on where you are and what you should do.

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