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How to beat an old Credit Card debit


EdwinRamos
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This was taken from the Debt Collection Lawyer site found here...

http://debtcollectionlawyer.blogspot.com/

How To Beat An Old Credit Card Debt: Part One

What is the best weapon to beat an old credit card debt? The answer is time or said in fancy legalese, the Statute of Limitations. The Statute of Limitations is a deadline you have to sue someone. The Statute of Limitations is different for every type of lawsuit and varies from state to state. For example, in the state of Tennessee the Statute of Limitations for an open account or contract is six years. That means that a company has six years to file a lawsuit against from the day you default on your agreement. One day beyond that six years, and their lawsuit is barred by the Statute of Limitations. So the questions are; what Statute of Limitations applies and When did default occur. The most applicable Statute of Limitations will likely either be one for contract (may be for breach of contract) or for open account. An open account is essentially a line of revolving credit. You can find your state's appropriate Statute of Limitation from a link on the right side of this blog entitled "Debt Law for All 50 States". Once you know how long the right Statute of Limitations is for your state, then you need to determine when did default occur. If you are being sued for an old credit card debt that has been sold several times, then it is likely that the current owner has no idea or more importantly, no proof, of when you defaulted. You should argue that your default occur ed the day your first payment was due that you did not pay. Hopefully, you have some written evidence of that; a past due bill, a collection letter, etc. If you do not, then file an affidavit alleging the date and then the burden will shift to the debt purchaser to prove that the suit was not brought in violation of the Statute of Limitations.

How To Beat An Old Credit Card Debt: Part Two

The second best weapon to defeat a suit based upon an old credit card debt is CROSS EXAMINATION. The majority of collection suits filed by second or third hand debt buyers are based upon a sworn affidavit. That is an affidavit from someone who works for the debt buyer that says they are familiar with the books and records and your account and that you owe x number of dollars. If no one shows up on the day the matter is set in court, that document is sufficient to allow the debt collector to take a judgment. However, in all courts, you as the defendant have a Constitutional right to cross examination of the party testifying against your interests. And you cannot cross examine a piece of paper. What that means is that the company suing you has to produce a real live breathing witness who can truthfully and accurately testify about your account and be subject to being cross examined by you. Most credit card debt purchasers deal in a volume business and have no interest in going to the expense of making such a witness available in your jurisdiction. Many judges, however, will gloss over your right to cross examination unless you clearly assert that right and demand the opportunity. Your ability to actually cross examine is not as important as forcing the debt collector's hand in producing a live witness.

How To Beat An Old Credit Card Debt: Part Three

Read the contract. Almost all debt collection law suits based upon aged credit card debts are breach of contract suits. What that means is that you are being sued for breaking your written promise to repay the debt. Therefore, the key to the suit is the actual written contract. In this case, that means the long, very fine printed, agreement you signed way back when you were first issued the credit card. You need to get a copy of this and read it, every word of it. Getting it may be difficult. If you are being sued in small claims type of court, you may not have the benefit of formal discovery. Formal discovery is used by lawyers to learn about the other sides case. One tool of formal discovery is the Request for Production of Documents. If the court you are being sued in is governed by Rules of Civil Procedure, then you may file a formal Request for Production of Documents before your trial date and obtain a copy of the contract. If the court is an informal or non-rule court, then you need to request a copy of the contract from the collection attorney. You need to make that request politely, in writing and by certified mail. That way if you aren't provided a copy and you see it for the first time at trial, the judge will be sympathetic with you and grant you either a break to review the document or a continuance. So now you have the contract, what are you looking for? You need to examine the maximum amount of interest you are allowed to be charged under the agreement. Has the debt buyer exceeded that amount? Has the debt buyer exceeded that amount by adding on collection fees and costs? Does the amount now sued for exceed your state's usury statute? Next, does the agreement require the suit to be brought in a particular jurisdiction or state? If so, you may be able to have the suit dismissed in your jurisdiction. Does the agreement require either arbitration or mediation? Again, if so you may be able to have the suit dismissed. In the last two examples, particularly with aged debt, the delay in having to either refile in the proper jurisdiction or in the proper forum may run the creditor past the statute of limitations we discussed in part one. So, the bottom line is get a copy of the contract and read it. Read every word of it.

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Hmmm.... I keep trying to figure out how to get my (unsatisfied) Crap1 judgment off my CR. It's legit and will pay it down if need be, but I feel that I need a plan of attack before I attempt to contact them.

Could my procedural defense be that I didn't receive the summons because I had moved out of state the week it was delivered, and the defense to the judgment be that I didn't have the opportunity to cross examine anyone?

But that doesn't seem like it would get the case tossed. How could I request a new trial instead? Or do I even want to attempt to get a new trial?

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SOL is not really cut and dried. A judge has to agree with your claim that SOL is up. Some may some may not.

No. Reason being - SOL being up does not preclude anyone from "collecting" or attempting to collect a debt...it is only an affirmative defense if you're being SUED. Someone can try and collect from you forever (unless you're in MS or WI). MS and WI have a "statute of repose" - which means a debt, once past SOL, is dead. completely. Uncollectable.

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The first problem is establishing the date on which the time period for the SOL started for the particular debt. Some states use DOFD, some use DOLA, some you the governor's birthday.

Second problem is establishing what kind of debt it is. Some states consider CC as "open accounts", some as "written accounts", and some switch back and forth depending on whether is a "store card".

Third problem is getting the judge to agree that all the facts fit his/her definition of the law.

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Okay, the fourth problem is making sure the judge knows all the laws regarding SOL.

(We have had recent posts regarding some state judges treating CCs as a written account. There also seems to be a distinction between signing up for a "store account" with Best Bye which is really a credit card, but, the courts treat as written. It just isn't cut and dry).

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