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case is going to court in march


rivergone
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I am new to this, I just want to ask what my defense is if any. My husband got served a complaint for district court by mail on an old credit card from a law office acting as lawers of citibank. It was sent to our address back in october and he replied to the complaint to the court and sent back a copy to the law firm as instructed by the court. He had been in negotiations with the law firm to settle and asked them to provide a copy of the contract with the credit card companythey only sent copies of the monthly statements, but no contract. On the advice from a lawyer he responded to the complaint, admitting to applying for the credit card, and admitting that CreditOne LLC now owned the contract, basically because their name was on the complaint. He denied that the amount owed was correct because he was in negotiations with the law firm. Last activity on account was on July 03. We live in NM. Statute of limitations in NM is 4 years on a verbal agreement. Card was applied for over the phone. Does the statute apply? Anybody have any info for a defense?

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I am new to this, I just want to ask what my defense is if any. My husband got served a complaint for district court by mail on an old credit card from a law office acting as lawers of citibank. It was sent to our address back in october and he replied to the complaint to the court and sent back a copy to the law firm as instructed by the court. He had been in negotiations with the law firm to settle and asked them to provide a copy of the contract with the credit card companythey only sent copies of the monthly statements, but no contract. On the advice from a lawyer he responded to the complaint, admitting to applying for the credit card, and admitting that CreditOne LLC now owned the contract, basically because their name was on the complaint. He denied that the amount owed was correct because he was in negotiations with the law firm. Last activity on account was on July 03. We live in NM. Statute of limitations in NM is 4 years on a verbal agreement. Card was applied for over the phone. Does the statute apply? Anybody have any info for a defense?

Depends on how the court treats this as open (4) or written (6) years. It can go either way and you may need to consult with an attorney locally there to see how these are treated there. It does not matter, neccesarily, that it was opened via phone, but is better than nothing if within SOL. If the SOL is 4 years (open usually CC's, but not always) it's run and you can use that as an affirmative defense, case closed and you're done.

On the other hand if it's the 6 years and treated as written you are well within that and may have issues. You want to avoid a judgement if at all possible. Follow all the proper procedures for the court in either case, as if you don't show up you lose by default, even if the SOL has run.

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did he claim the SOL as a defense?

Question Recovering Attorney because I really don't know. But the gist of the matter is that rivergone should show up in court in March as the defendant in a lawsuit. Is not rivergone better off holding his defense until the last minute by asserting the agreement is verbal and therefore he has an affirmative defense in the 4 year sol? Rather than tipping his hand early letting the plaintiff in the law suit have the time to collect the precedents showing the longer 6 year sol should apply.

If the plaintiff does not anticipate the argument and rivergone has the precedents showing the 4 year sol should apply, might not he then be more likely to prevail?

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Well, he already responded to the complaint and never used SOL as a defense. Correct me if I'm wrong but unless you include SOL in your response, you can't claim it in court. The plaintif needs the time to prove that the account is within SOL and a judge won't grant that defense since it means another court date and giving them more time to prepare. I think the attorney that told you to respond to the complaint before you knew all the information to your questions was poor advice. Yes, either way you should show up for the court date. The last thing you need is a default judgment showing up on your CR which can be renewed and result in garnishment.

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