Received Summons...opinions please?!

[sharbear1978]

I received a Civil Action Hearing Notice from the District Court today. I'm thinking the SOL has expired, I am in need of some help from you folks.

1. Who is suing you? Commonwealth Financial Systems, Inc.

2. For how much? $3,233.46 plus Costs

3. Who is the original creditor? First USA Bank (bought out by Chase). Shows as Chase on my CR.

4. How do you know you are being sued? I received a complaint (certified letter) from the District Court saying when and where the hearing will be (8/30/07).

5. How were you served? Certified Letter

6. What was your correspondence (if any) with the people suing you before you think you were being sued? They have called on numerous occasions and left me messages. I called them once and asked for validation of this debt and they were VERY rude...would not give me any proof unless I made a payment. They have also sent numerous letters asking for payment. Finally, I received a letter stating that if I did not pay within 10 days - they were commencing legal action.

7. Where do you live? Pennsylvania

8. When is the last time you paid on this account? The last time this account has been paid on was in January of 2003, according to my CR. February was 30 days, March 60 days...so on and so forth.

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). Hearing is scheduled with District Court on 8/30/07. (Two weeks prior to my due date, by the way)

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes, that the account has been re-aged by the Collection Agency. I have not yet received a response.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. Not in writing, but over the phone, yes. Nothing was sent because they wanted a payment first.

12. Does your summons require a response? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I did not receive a questionnaire, just the hearing notice. It says that if I intend to defend to notify the District Court office immediately at the above phone number.

Complaint states: The amount of $3,233.46 (File No. 1585902) are due and owed for a revolving Credit Card issued by First USA Bank where the balance is in default as of 8/31/2003. Commonwealth Financial Systems, Inc. purchased these accounts on 9/18/2004 and is entitled to all rights, assignments, and judgments. The Plaintiff respectfully requests that this court grant judgment in favor of Plaintiff and against Defendant in the amount of $3,233.46 plus court costs.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? They did not send anything with the letter.

14. What is the SOL on the debt? To find out: As far as I can see it is 4 years.

http://www.creditinfocenter.com/rebu...itations.shtml

Please help. What should I do? How should I respond? Should I just throw in the towel or should I try to attempt to fight? Thanks for any help

[shinyrims]

you need to go to the court house and deny the accusations in other words just tell the clerk of courts that you disagree with what they are stating what you owe, the clerk will have you fill out a form and sign it, you must state why you disagree(defense) i did it last month, it stoppped that crap quick. that all i know im new to this but thats wht the forums will tell you to do.

[IHateCAs]

I opine two things.

1) It may not be a coincidence that they are claiming the default date just happens to barely place this debt inside SOL. IOW I think they are lying about the default date so they can pursue this in court. If they are, you have your first counterclaim.

2) Fight it. Since you're new here it would take a lot of catching up to get you ready to defend pro se. If you do nothing else, file a general denial and appear. They might dismiss just based on that, but its no guarantee. I wish I had a good consumer lawyer in PA that I could recommend but I don't. You can try www.pennlawyer.com though. He claims to be a consumer advocate, but I never looked into any of his filings. You can try naca.net also to find one in your area.

[willingtocope]

You might also keep in mind that if the card was in default when Chase bought it, that makes Chase a junk debt buyer. One of the things that needs to be established is who CFS actually bought it from. It says First USA on the complaint, but CHASE on your reports.

[sharbear1978]

How do I prove all of this? If my CR says Chase, but they are stating it is from First USA Bank, which it originally was...what do I need exactly to prove that it is the same account. The CR does not list the whole account number, although most of it is there (with the last 4 or so number x'd out).

The card was in default when Chase bought it...what can I do with that information?

Thank you all so much. If I get my ducks in a row...I don't see how they can actually win. Problem is, I don't know if I can do just that.

This is the last thing I need right now...the baby coming very soon is enough stress!!!

[willingtocope]

Like IHateCAs says...try www.pennlawyer.com or www.naca.net and see if you can get someone to help...

[Amerikaner83]

a pregnant lady coming to court to defend herself against a JDB seems like an interesting visualization.......dirty rotten scumbag JDB attorneys

[bigjohnstud4200]

If you stopped making payments in January, then you're probably outside the SOL. If you bring time-barred as a defense, the plaintiff must prove when the account went default. That on top of them lying about the default date (if they can't prove it) should be able to get you off the hook, but you really need to speak to an attorney.

[sharbear1978]

I think I am outside the SOL as well. When does the SOL clock start ticking? Is it the last time I made a payment on the account? This is what I am lead to believe by most postings. I just want to make sure that it is not started when the account is bought out by a JDB or when the account is charged off by the original creditor. There was another debt buyer that owned this debt first between First USA Bank(Chase) and Commonwealth Financial.

This is such a mess...all because of a divorce!

[sharbear1978]

Could some kind person help me out with a defense response to this hearing?

[bigjohnstud4200]

SOL begins on the DOFD (date of first delinquency). What that means is this. Say your payment is due on the first of every month and you don't pay your Jan 1 payment or your Feb 1 payment. Your DOFD is usually, Feb 1, 30 days after you first payment was missed. Say you continue to not pay for 90 more days, but then make a partial payment. Your DOFD does not restart unless your payment was large enough to bring the account out of default.

[sharbear1978]

That's what I thought...if that is the case I KNOW the SOL has expired.

[Sport59]

Definitely defend this action. Notify the District Justice that you intend to defend. The DJ may reschedule the hearing date because some DJ's don't expect defendants to show up and will just enter judgment by default. So if you notify them that you intend to defend, they may have to reschedule to give the DJ enough time to conduct a hearing. What part of PA are you in? There are a rash of these cases being filed in PA, JDB's must be making a killing on filing with the DJs and getting default judgments. Am I correct in assuming that the last payment you made on this account was more than 4 years ago? Did you reaffirm the debt at anytime thereafter? If it has been 4 years then this claim should be barred based on SOL. You may also want to consider filing a counterclaim for damages. A time barred claim may constitute a violation of the FDCPA [state] and the Unfair Trade Practices Act. In addition, it may amount to misuse of legal process if they just did this hoping that you wouldn't show and that they would get a judgment by default. Definitely defend and see what happens. The worse is that you will lose but still have the right to an appeal. If the hearing goes against you and you feel the DJ was not fair to you or the Plaintiff did not prove its claim, file the appeal and get a lawyer.

[Sport59]

Sharbear1978, I posted this in another part of the forum regarding a Pennsylvania Superior Court case that held time barred collection suits violate the Pennsylvania Unfair Trade Practices Act. This case was appealed to the PA Supreme Court which denied the appeal. Thought it might be useful for your case. Good luck.

COMMONWEALTH OF PENNSYLVANIA BY ATTORNEY GENERAL D. MICHAEL FISHER

v.

RICHARD A. COLE, M.D., INC., RICHARD A. COLE, M.D.,

Appellant

No. 2174 C.D. 1997

SUBMITTED: December 19, 1997

FILED: March 23, 1998

BEFORE:

HONORABLE DAN PELLEGRINI, Judge

HONORABLE JAMES R. KELLEY, Judge

HONORABLE EMIL E. NARICK, Senior Judge

OPINION BY

SENIOR JUDGE NARICK

The issue before this Court is whether an attempt to collect a debt barred by the statute of limitations is a violation of the Unfair Trade Practices and Consumer Protection Law (Law), Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§201-1-201-9.2.

Richard A. Cole, M.D., appeals from the order of the Court of Common Pleas of Erie County that granted the Commonwealth of Pennsylvania, Acting by Attorney General D. Michael Fisher's (Commonwealth) request for a preliminary injunction. We affirm.

The Commonwealth filed a complaint in equity against Dr. Cole and petitioned for permanent injunction and civil penalties, and a motion for preliminary injunction.1 The Commonwealth alleged in its complaint that Dr. Cole, while engaged in a large-scale effort to collect monies allegedly owed by former patients2 violated the Law, as well as the Debt Collection Trade Practices,3 by ignoring the applicable four-year statute of limitations.4 The Commonwealth also filed a brief in support of its motion, which included eleven affidavits from former patients or their attorneys, and three local Erie County Court of Common Pleas decisions, finding the four-year statute of limitation applicable to Dr. Cole's collection efforts.5

*****

The Commonwealth further argued before the trial court that Dr. Cole's continued efforts in prosecuting and bringing time-barred cases violated the Law. In support of its position, the Commonwealth cited Kimber v. Federal Financial Corp., 668 F.Supp. 1480 (M.D. Ala. 1987), which involved violations of Sections 1692(e) and (f) of the Federal Debt Collection Practices Act, 15 U.S.C. §§1692-1692o, the federal version of Pennsylvania's Law.11

In Kimber, the defendant debt collector brought actions against approximately 200 consumers in an effort to collect debts clearly barred by the applicable statute of limitation. The court found that the defendant had violated the federal act in attempting to collect debts obviously time-barred. The court stated that:

These statutes [of limitations] ... 'afford[] plaintiffs what the legislature deems a reasonable time to present their claims,' while at the same time 'protect[ing] defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.'

Id. at 1487, citing United States v. Kubrick, 444 U.S. 111, 117 (1979).

Here, the trial court, stated that the legal pronouncement in Kimber was sound and adopted the federal court's reasoning. We agree with the trial court's finding that Dr. Cole had violated the Law by filing and prosecuting actions barred by the four-year statute of limitation and by continuing to prosecute the actions after being made aware of the applicable statute of limitations.

*****

Therefore, we hold that based on the evidence presented and the applicable Law that the trial court correctly granted the Commonwealth's request for preliminary injunction.

Accordingly, we affirm.

Emil E. Narick, Senior Judge

[sharbear1978]

I have notified the DJ of my intent to defend this case. I have a couple more questions and need some more opinions...I have contacted, through email, a naca.net attorney, Clayton S. Morrow. He has told me that I have a claim against Commonwealth Financial for violating the FCDPA. Do you all think I should have him come to the DJ hearing and just get it over with (he told me I wouldn't have to be there) or should I try to defend myself at this hearing? If I lose I could then hire an attorney for an appeal. If I defend myself am I going to need to know all of the laws or is it enough if I just state that the SOL has expired?

Sport59 - yes the last payment I made on this account is more than 4 years ago. After disputing this on my credit report - this collection account now shows that it will be reported until May 2010. So that means that in May 2003 (120 days late) is when the SOL clock started ticking, correct? I am in Elk County PA

[IHateCAs]

Hire him. Have him explain everything to you so you understand the process. Read all his filings.

Next time, try doing it alone.

Better to get it right the first time, then be worrying about appeals.

[Sport59]

sharbear1978: the attorney you contacted is in the Pittsburgh area? Seems like a long way to travel to attend a hearing in Elk County. I practice in central PA near Harrisburg, so am too far to offer my assistance. You definitely want to appear, whether or not you are represented by counsel. Do you know any attorneys practicing in Elk County. The S/L defense is pretty simple and I think that any competent attorney in your neck of the woods could assist you at the DJ hearing level and defend on the basis that the debt is time barred. Or you can defend yourself -- one of the policies behind establishing small claims court is to allow the "average joe" to pursue or defend a claim without having to hire an attorney. Rules of procedure are not strictly adhered to and the DJ, who is an elected official, will oftentimes go out of his or her way to make sure that you have a fair and impartial hearing. Of course, if you prevail you can still hire counsel to pursue your separate claims [whether in federal or state court] for violations of the FDCPA etc. Let me know if I can be of further assistance.

[sharbear1978]

I do know attorneys that practice in Elk County. But, do I need one that specializes in Debt Collections or would a general practice attorney work. I'm comfortable defending myself at the DJ as long as I don't need to know all of the legal talk. If I were to go in there and say something along the lines of: 1) I verbally asked for verification on this debt and I was told they wouldn't give it to me unless I made a payment and 2) The verification does not even matter at this point because this debt is time barred and the plaintiff is illegally pursuing legal action after the 4 year statute of limitations has expired, would that work good enough? Also, the fact that it states right on my credit report that that debt will be reported until May 2010 - is that enough proof to show that the statute of limitations has expired in May 2007:?: ? Add to that the fact that the two credit reports I have show that the last payment on the original account was in January 2003.

I don't really understand why they say this will be reported through Commonwealth Financial until May 2010...do they usually make the default date when it becomes 120 days late?

Thank you all so much for everything!!! You guys are great!

[sharbear1978]

Does anyone have some advice on the previous post, please?