CarolinaBlueEyes Posted August 1, 2006 Report Share Posted August 1, 2006 Okay.I went to court with my friend last month for an LVNV account (and yes this was a friend.. lol) she never DVed them.. she didnt know about you guys!!Anyway the first time they went to court.. the judge was kind of rude to her.. (he hates it when people have no lawyers and told her that)Asked if the debt was hers and she said she had no proof of that since it could have been her exes in the divorce . This was the judge who said to her "do you owe these FINE people (referring to LVNV) or not??So back to court she goes, I was not with her the second time... but the papers had clearly been filed outside the SOL (three years in NC for both oral and written) by a good six months... the judge told her if she owed it the SOL did not matter.. They still didnt have enough to prove the case though so she goes back in two months.My question.. I thought the SOL was cut and dried as long as it was brought up.. she did not admit to the account.. since it could be from her ex.. what the heck am I missing here.. I told her that it should have been a slam dunk!..any suggestions for her Sept court date.. I could have sworn the SOL defense would have been the end of it Link to comment Share on other sites More sharing options...
shaithis714 Posted August 1, 2006 Report Share Posted August 1, 2006 Well, I guess he could be right on a technicality, granted she may owe the debt, but they can't sue for it at that point. I mean they can always try to collect, but the SOL bars them from any further court action on it. Link to comment Share on other sites More sharing options...
Aerovette Posted August 1, 2006 Report Share Posted August 1, 2006 Owing and actually collecting are two different things. The judge seems to be letting her know she is still responsible whether there is a suit or not. I would guess that the court could PROVE the debt is hers, which would allow collection to continue, but due to SOL, they can't force a payment.Just my .02 worth. Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted August 1, 2006 Author Report Share Posted August 1, 2006 so can the judge grant a judgement.. because that is where he seemed to be heading... his comment was how does she know its out of SOL if she doesnt know if this is her debt.. I admit its a catch 22. Her response was that she had paid nothing on the joint debts after the divorce (she couldn't afford it)..and as I said they filed six months after the SOLand the thing is they ARE sueing.. she is heading back to court for a third time on this.. if its a "slam dunk" then why the third court date... Link to comment Share on other sites More sharing options...
mikey Posted August 1, 2006 Report Share Posted August 1, 2006 again, i would tell the judge "if the debt were mine, not sure, it appears to be expired sol"...and if push came to shove, then say YES..its mine and? the judge has NO authority to make her pay by a judgement. he can rule the debt is valid but can NOT give the plaintiff any money judgement...if he does, an appeal is definitely in line and let a REAL judge handle it. bottom line, they cant get a dime if its outside the sol unless she wants to pay on it. does she really owe it..yes...just as i owe mine....but if i dont have to pay this debt i can not afford, then i wont. sorry if that sounds bad but i can not afford it and apparently they didnt need it either waiting all these yrs. also if the court felt you owed it, then there would not be the protection of a statute such as sol. Link to comment Share on other sites More sharing options...
E. Normis Debtor Posted August 1, 2006 Report Share Posted August 1, 2006 Couple of things.The divoce is not a factor. If the obligation was hers before the divorce, a divorce decree does not alter her obligation to the creditor. The creditor was not a party to the divorce therefore their rights cannot be affected by the divorce courts decision in allocating responsiblity for the debt. The creditors recourse is still against her, her recourse is against her ex by virtue of the decree.The judge is wrong declaring that if the debt is hers the SOL is not a factor. It is, and is an absolute bar to their claim. Their filing the action alone on a time-barred debt violates federal law.That being said, and speaking in general terms as I'm not familiar with the case or the states ROCP, consider this.Her SOL defense could fail as a matter of procedure. And, some a**-hole judges are sticklers on procedure for pro se litigants.If she failed to prevent the litigation from moving forward by not filing the necessary motions, she could very well have waived her SOL defense. Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted August 1, 2006 Author Report Share Posted August 1, 2006 Well the problem is we are in a town the size of a postage stamp. She got the summons.. answered it in a timely manner.. we went to court .. threre were five people there, including the judge.He was annoyed she didnt have a lawyer (this was for 1000.00) and frankly its hard to find one that does this in our area and she can't afford one. She explained that this could be her ex husbands.. she was not sure... she claimed she didnt pay on anything after the divorce.. which is when he gave her the "these fine people speech" and told her to come back.. she did, now a third court date... she brought in a credit report but he said that was NOT admissible she says she has no idea how else to prove it... frankly I am stumped as well Link to comment Share on other sites More sharing options...
E. Normis Debtor Posted August 1, 2006 Report Share Posted August 1, 2006 The credit report is not competent evidence. Hearsay at best. Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted August 1, 2006 Author Report Share Posted August 1, 2006 so then how do you prove you are out of the SOL?? A last payment makes no difference since its your word that it is a "last payment" how does ONE prove this to a judge Link to comment Share on other sites More sharing options...
hinky Posted August 1, 2006 Report Share Posted August 1, 2006 It's too soon to get too worried. If this idiot orders a judgment she absolutely needs to appeal. They cannot sue her past SOL, period. I can't stand jackass judges. Let us know what happens, please! Link to comment Share on other sites More sharing options...
mikey Posted August 1, 2006 Report Share Posted August 1, 2006 so then how do you prove you are out of the SOL?? A last payment makes no difference since its your word that it is a "last payment" how does ONE prove this to a judgeI always thought it was the PLAINTIFF who had to prove his case. He would have to be the one supply the proof in which case might help us both in our cases. Why should I be the one who supplies it, its not my case, just mine to defend. You see, in mine (not hijacking, just using it as an example) they will try to prove its a written contract and must have the papers to back it up. I will just have case laws and definitions to strike that. The dates will have to be included on the contract and as far as SOL. Well, part of the papers they filed is a copy of the last statement with the date on it. Legal minds, correct me if I am wrong, usually I need some correctioning....lolthe case law says that a terms and condition alone isnt enough to prove written contract. I believe they need the terms and so many months of statements with itemize charges and signed slips. Will they have all this, I hope not and I am guess not. But in Carolinas case, she is clearly past the SOL even on written. I wish mine was as easy as hers. Mine I will have to do some convincing. Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted August 1, 2006 Author Report Share Posted August 1, 2006 Hinky.. thanks.. I will let you know... I was annoyed that he gave her a hard time for not having a lawyer in small claims.. she simply cant afford one at 100 per hour.. its a simple case.. they seem to have no info and its out of SOL.. but then again I am still not over the fact he referred to a JDB as "these fine people"... go figure Link to comment Share on other sites More sharing options...
Aerovette Posted August 1, 2006 Report Share Posted August 1, 2006 Hinky.. thanks.. I will let you know... I was annoyed that he gave her a hard time for not having a lawyer in small claims.. she simply cant afford one at 100 per hour.. its a simple case.. they seem to have no info and its out of SOL.. but then again I am still not over the fact he referred to a JDB as "these fine people"... go figureI worked many years ago with a small claims lawyer on a suit concerning damage to a car. I could SWEAR she told me that in small claims you cannot have representation. You can have an advisor, but all the talking is done by the two parties involved once you enter the court room. Has this changed or is it state by state? As for not affording one, that is why I hang out here so I don't spend $300.00 asking $50.00 worth of questions to an attorney. This site helps me build my list so I can make the most of my time with them. It rocks. Link to comment Share on other sites More sharing options...
CarolinaBlueEyes Posted August 2, 2006 Author Report Share Posted August 2, 2006 you can have one here.. in fact the judge had no patience with the fact she was not represented.. she is a single mom and what gets me is that in my state NC.. they cant garnish... she is on disability and social security so that money can't be touched and the house would be an exemption since she has two mortgages on it.. (the car... in her dads name) also an exemption.... so what is they are even hoping to accomplish here for under 1000. I admit it amazed me they went forward with this. Link to comment Share on other sites More sharing options...
Recommended Posts