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Need advice - going to trial in a couple weeks


maryv
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I went to small claims court becuase lawyer is suing me for old credit card debt. I live in Illinois and the debt is 4 years old (SOL in Illinois is 5 years) so I went to court 4 times and trial is set for next month. Plaintiff sends me copies of cc statments (only first and last statement) in the mail and says if I want to avoid trial to call him to discuss possible settlement.

My credit report showed the debt was paid, but because it's 4 years old I don't have a copy of check or money order. Can I still win in court? I don't think Plaintiff has copies of signed receipts or cc agreement because if he did, he would have sent them to me.

Are copies of cc statements valid as evidence even though they are copies and not originals?

Anyone, please help. Advice?

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Thanks admin. It's a shame when they can bring copies of cc statments but when I bring in my origianl credit report that shows the debt was paid in full that isn't good enough. I don't want to get stuck with this as I already paid it otherwise the CC company would not have said it was paid on my credit report.

It's not fair.

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Copies are okay if they can be authenticated. Even in a small claims court, this means the lawyer just can't offer them himself, as he has no personal knowledge. He needs to have someone from the plaintiff show up to authenticate the statements and testify that they were sent and you received them. If he tries to do that with an affidavit by an out of court , out of state witness, object to it 1) as hearsay and 2) inadmissible unless there is a certificate of conformity.

Of course, if your defense is that you paid the account, it is incumbent on you to provide proof that you did. You might ask the court to subpoena the plaintiff's rcords to see what payments they received.

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The only proof I have that I paid the card is the original creditor put on my credit report that I paid it in 9/02 and my CR shows a $0 balance. The card was opened in 7/02. I didn't keep a copy of the money order as I didn't think I would be getting sued as it's 4 years old. Who keeps copies of checks/money orders after 4 years? Unfortunately, not me.

The plaintiff sent me a letter saying "here's the first and last month cc statements and if I want to avoid trial to call him to discuss a possible settlement." A part of me doesn't want to settle because I paid this bill as the original creditor said so on my credit report. True, sometimes credit reports are wrong, but I have NEVER seen or heard anyone say "I didn't pay a bill but the creditor reported on my credit report that I did." Usually, it's the other way around.

Recovering Attorney, if you think I have no chance of winning or it's too risky I will offer the plaintiff $500 to avoid having a judgement on my CR and having to pay $1,500 plus atty fees and court costs. I don't want to have to pay this bill again, becuase I believe I paid it already.

Please let me know what you would do if you were in my shoes.

Thank you.

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Rule number one for ALL WHO LISTEN. You keep your checks FOREVER.

That's who.... EVERYONE. Checks, all important papers, tax returns, etc. Yeah, 60 years from now it'll be alot of paper... get a bigger filing cabinet.

Meantime, prepare and file a subpeona for the CRA that the credit report you wish to use is from. Subpeona the ENTIRE communications record for the OC on your Credit file. This will have the entire account reporting history, including the PAID in full and $0 balance report. As this is ordered by the court, it IS admissable as evidence in your defense. It is proof the debt is paid in full, period.

Its also proof of the FDCPA violations the collector is guilty of in dragging you into court suing over a false debt. Should be good for $1K free money if you do your homework.

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Rule number one for ALL WHO LISTEN. You keep your checks FOREVER.

That's who.... EVERYONE. Checks, all important papers, tax returns, etc. Yeah, 60 years from now it'll be alot of paper... get a bigger filing cabinet.

Meantime, prepare and file a subpeona for the CRA that the credit report you wish to use is from. Subpeona the ENTIRE communications record for the OC on your Credit file. This will have the entire account reporting history, including the PAID in full and $0 balance report. As this is ordered by the court, it IS admissable as evidence in your defense. It is proof the debt is paid in full, period.

Its also proof of the FDCPA violations the collector is guilty of in dragging you into court suing over a false debt. Should be good for $1K free money if you do your homework.

i am not so sure everyone NEEDS to keep EVERY bit of paperwork for 60 years. That is CRAZY. No one has (even business) kept records that long. There is SOL on everything and soon or later, they become obsolete.

I would be interested in knowing if they had a written instrument with your signature, submitted it to the courts and showed chain of custody...all with proof that they are authenicated and not just copies along with reciepts themselves. If not, I would fight it as they have not provide all that is needed to win the suit and you could move to have judgment found in your favor for lack of proper proof. They are required to attach a copy of the written document to prove its a written contract or it is considered oral even with the statements they submitted. But even so, according to the Fernadez case law in FL, these documents alone are NOT enough to prove a written contract. What is your state's sol on oral?

Don't let the attorney on the other side intimidate you with this. That is their job. They do this even when they know they don't have a case in hopes of scaring you into a easy win.

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What I got when I was served was the summons and attached was the contract that the PLAINTIFF (lawyer who bought debt from cc company) printed off the internet in 2004 (I apparently opened card in 2002). This contract plaintiff printed has NO SIGNATURE on it. He only sent me copies of cc statments (first and last statement only). Nothing with my signature on it. NADA.

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What I got when I was served was the summons and attached was the contract that the PLAINTIFF (lawyer who bought debt from cc company) printed off the internet in 2004 (I apparently opened card in 2002). This contract plaintiff printed has NO SIGNATURE on it. He only sent me copies of cc statments (first and last statement only). Nothing with my signature on it. NADA.

that is common...they dont have the actual contract (terms and agreement) so they give whatever they can find. i would fight it in court and let the judge know that it isnt the terms (actual) you entered into and that they are grabbing straws out of a hat. it maybe be viewed by the judge at that and everything afterwards as heresay. anyone nowdays can print out stuff. does that make it binding? i dont think so. if so, than just print something out yourself on your printer saying paid in full...and see how it plays than....lol

no sig and no actual terms...no written contract and even so, the court could reject it as not enough to prove written contract thus seeing it as oral at best...

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If they have statements from the OC, you can try and get it thrown out as heresay since the Lawyer has no personal knowledge of the debt, but this will gto some was in establishing your ownership of the debt.

The next thing to try and get them on is how they calculated the final debt. How do you know the "last" statement was the last.

A request for discovery or production of documents could make them either look good or bad - but then you would know for sure.

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  • 4 weeks later...
My credit report showed the debt was paid, but because it's 4 years old I don't have a copy of check or money order. Can I still win in court?
Unfortunately (and sometimes fortunately), just because a creditor places something on your reports doesn't mean it's true. I have an OC TL on one of my reports that was closed by the OC and even though I paid it in full, it first went to their internal collections department before I was able to pay. The TL has never reported as anything but open, active, never late. Now that's perfectly fine with me, mind you, but it's not accurate. Most of our efforts on this board are directed to disputing incorrect information furnished to the CRAs; however, there are instances where the incorrect information results in a positive TL, which may be the situation in your case. (As uwackme stated in another thread, it's always good to keep cc and other payment records for at least as long as your state's SOL, preferably longer.)

You mentioned in another thread that your court date tomorrow will be your fifth trip to court as the plaintiff has requested four continuances. While you can't do anything about it now, you should have filed a motion to put an end to that nonsense after the second plaintiff no-show. Definitely try to work it into your argument tomorrow. Plaintiff was definitely taking advantage and you're right...they were hoping you'd eventually be a no-show so they could get their quick and easy default judgment. Good for you for hanging in there and not letting them get away with that.

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Thanks Breathing easier, but the Plaintiff did show up for each court date, they just NEVER had any evidence and the judge would automatically continue it, which I thought was ridiculous. Hopefully today, they still won't have evidence and it will get dismissed with prejudice...hopefully.

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