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I wish I would have found this site sooner!!!


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Need help.

Being sued by attorney's office (CA) for a credit card (LVNV Funding, LLC, Assignee of Metris Direct Merchants Bank). Account was sold as we had gotten letters from Capital Management & Alegis Group LP before Nathan & Nathan. They say they are attorney's for the LVNV Funding etc etc. Account DLA is 1/03. Delinquency actaully started 6/01. Lawsuit was filed 6/12/06. Total amount being sued for $14,249.38. Complaint (plaintiff claims of Defendant(s) the sum of $11,299.55 by virtue of contract, open account and account stated plus interest pursuant to the terms of the contract (which currently totals $1,092.18), plus attorney fees of $1,857.65, less remittitur for any payments made (less$.00) with waiver of exemptions if the contract you signed so provides.

Collection letter from Alegis Group back in 2003 is for $13,379.51.

Collection letter from Capital Management is for $17,124.49

1st collection letter from Nathan & Nathan is for (5/20/06) $12,090.83

2nd from Nathan & Nathan (6/2/06) $14,259.38

3rd letter (7/21/06) $14,487.88 offering settlement of $12,314.69

4th letter (8/7/06) $14,673.62

5th letter (8/11/06) $14,681.05

Was set up for court in Alabama on January 10. We showed up and was going to try to fight the SOL. The other attorney faxed the judge a motion to continue as "Local appearance counsel for the plaintiff has a conflict in federal court which was previously scheduled and can not be continued." We received the notice several days later, after the court date.

Was set up for Feb. 28. I filed a motion to dismiss mentioning the Fair debt collections practice SOL for Alabama is 3 years from date of delinquency. Attached a copy of our credit report showing DLA & Actual delinquency date. Showed up for court Feb 28. Their attorney once again filed the exact same thing they did at the first court, for the exact same reason. They faxed it to the court and we NEVER received a copy of it in the mail like we were supposed to. Told the judge that was the second time they did that, and he set up a date for us to come to court not for their suit, but for our Motion to Dismiss. We have to go to court on March, 20. My problem is now we will have to argue with their attorney if he shows up, why it should be dismissed. I need help with an argument. Anything else I could bring up? I am due to go out of town tomorrow, and will not be back in town until the day before court. I wish I would have found this site sooner. I am afraid they are going to try to say they are just representing the credit card company. But the other companies had tried to collect. What can I do????

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Others will pop in here, I'm sure...but...if I understand what you're asking about....the SOL applies to the debt...period. Its measured from when it went delinquent with the OC...and gives you an absolute defense against anyone who might buy it later.

(I'm guessing that's why the attorney isn't showing up...he knows its SOL. If you wouldn't have shown up, it would've got his default judgement)

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Statute of limitations begins from date of last payment made on the account, not date of first delinquency (which is for credit reporting).

Your statement to the judge should be something like this:

"Motion to dismiss, your honor. I have an affirmative defense that the statute of limitations has run out and the plaintiff has forfeited their right to pursue this matter in court by their lack of timely action. The last payment on this account was xx/xx/xxxx which establishes the beginning of the Statutory 3 year limitation to bring action under Alabama law.

I ask that the court dismiss with predjudice because this is plaintiff's second attempt to file suit on this uncollectable account and not granting dismissal with predjudice would permit plaintiff to continue to harass me with repeated frivolous court proceedings with this court's unspoken blessing."

That should about do it.

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Thank you so very much. I hope this works. When it was wrote off, we only owed 8000. It has gone up and up and up. We are self employed and had some really rough years, and was paying this company 200 a month, but they were charging us over 300 with interest, penalities etc.... wouldn't work with us.... We tried... honestly... to pay, but how do you pay when they charge you more than what you pay??? Just in interest??? Anyway, I thank you for your time and I will be reading more on this site. Just found it today and will definitely pass it on to others. Thank you so much.

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Um, you didn't mention you were paying the collector before. That changes everything. The SoL begins on the date of the last payment made on the debt. If you made payments to the collector, the SoL begins with the date of the last pament made to the collector, not the original creditor.

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Methuss. a poster on another thread (lovesdogs thread) quoted the FTC website as saying that partial pmnts which never bring the acct current do not restart the SOL. Now I'm confused. I very much respect your expertise and I just want to make sure there is not conflicting or erroneous info floating around here.

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actually Carolina I wasn't asking for myself, I was musing on behalf of the OP, but..thanks for the info. Boy this stuff is like peeling an onion, lots of layers! So there are nuances in the re-setting of an SOL which are state specific huh? The more you learn ,the more you learn you have more to learn! BTW, don;t know where you are in NC but we love boating and jetskiing on the Albemarle!

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No, we did not pay the collectors.. we tried to pay through the credit card itself... years ago... that was when we quit paying. My concern is that the lawyers office is saying they are an assignee of Metris. That is what is worrying me. The only thing is two other collection companies had it before them, and they all said assignee too. Is that gonna matter???? the DLA on the credit report ia 1/03. We didn't pay any collectors after that. We go to court tomorrow on the dismissal. Hoping the lawyer will not show up.

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No, we did not pay the collectors.. we tried to pay through the credit card itself... years ago... that was when we quit paying. My concern is that the lawyers office is saying they are an assignee of Metris. That is what is worrying me. The only thing is two other collection companies had it before them, and they all said assignee too. Is that gonna matter???? the DLA on the credit report ia 1/03. We didn't pay any collectors after that. We go to court tomorrow on the dismissal. Hoping the lawyer will not show up.

"Assignee" is one of those weasal lawyer words that has different meanings depending on how its used. In your original contract, it will say something like "...the OC can bestow all rights on its assigns..." which is lawyese for "...if we sell this debt, whoever we sell it to gets the same rights we have...".

However, while the OC still owns the debt, they can "assign" a collector to do the collecting for them...as in "contracted with".

Don't attach to much importance to the words at this point...

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Ok, went to court this morning... had to wait the whole morning hearing motions from lawyers about all sorts of things, and when it got close to lunch time, we were the only two people left (my husband & I). No other lawyers or anything. We went up, talked to the judge, showed him the papers, and he granted our dismissal. Their attorney did not show. He then told us to check with the clerks office to make sure they did not file anything else, which we did, and they did not file. WHOOPPEE... So... I hope this will be the end of this lawsuit. Thank you all for your help!!!

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