Do I need to consult an attorney?

[sweeperlady]

The more I read the more confused I get. I have never been to court for anything...so I am really nervous about this.

I received a summons in the mail yesterday. Credigy is suing me for a credit card I opened in 1992. DOLA 4/99 according to a 2003 credit report copy I still have.

In June 2007 I received a letter from Stewart & Assoc. demanding payment. I timely DV'd and they did not send anything. They sent a second letter in August, I again timely DV'd (this time sent it CMRRR) they responded with basically a history or where this account had gone. They identified the OC, the CA and another CA that this account had bounced to. They did not provide any proof they owned the account or any payment history, etc.

According to my records (my old credit report copy) DOLA was 4/99 so way out of statute for Wisconsin. However, in late 2001 early 2002 my husband and I did a debt consolidation thing (I know, I know) and there may have been some payments on this account to one of the collection agencies the current CA has listed that my account went to. This was a BAD consolidation place and we sent them money and they didn't always PAY the creditors, we quit after 4 or 5 months. BUT, I have no record if any payments were even received to the CA. If they had been, they would have been Jan, Feb 2002 or so....so that would make my account FOR SURE out of SOL in a couple months. My guess is, this is why I am being sued NOW!

Neither the OC, or either of the CA are reporting on my credit report now. So, it didn't really bother me too much that they were trying to collect on such an old account, but now of course its a different situation. I received only 15 days notice of my court date (received 1/23 going to court on 2/7). Summons was received with my maiden name (I've been married for over 7 years). I lived in WA (SOL 3 years) when I got the original credit card (with a CL of $500 and now being sued for $2500!)

Anyway, what are my steps here. Should I consult an attorney? Should I just take my credit report copy with the DOLA and my letters to the attorney's office and their reply? By the way, the attorney's office that is suing me for the CA is NOT the same attorney's office. Stewart and Associates stopped attempting to collect after my second DV letter.

I'm so confused, please help!!

[willingtocope]

Yes, consult an attorney. Check www.naca.net to see if there is a consumer lawyer in your area that would help.

The really good news is...if it is SOL, then WI also has a "statue of repose" which means the debt is forever uncollectable. In fact, the lawyer suing yu could be in trouble for even bring the suit....

[sweeperlady]

Thanks willingtocope. I appreciate your time.

So, based on what I know right now. I DO have sufficient proof of DOLA (4/99) as out of SOL. An old credit report copy would be submissable in court right?

All I am worried about is if the attorney has a copy of the collection agency payment or two they might have recieved. If the DON'T have this information, I should be okay right? If they do, then I am SOL---the other SOL.

Thanks,

[willingtocope]

It depends also on exactly how the WI SOL laws are worded. In some states, you actually have to enter into an agreement to extend the SOL. Again, talk to a WI lawyer.

[sweeperlady]

to consult with an attorney.

I have a couple of questions though in the meantime to maybe get a few things going since my appointment with the attorney is only 4 business days prior to my court appearance.

1. I DV'd current CA (Credigy) and they told me that another CA (First Select) had this account prior to them purchasing it. It is okay for me to call First Select and obtain any information they have regarding the account in relation to balance, payment history if any?

2. Does the plaintiff have to submit any and all information they have at the time they file their complaint and summons? Attached to the summons is "Exhibit A" that is simply an affidavit from Credigy stating that they purchased the account and are not a "creditor", there is no right to cure the account, to the best of their knowledge it has not been discharged in bk, and to the best of their knowledge it is not past the SOL.

----does this mean that the plaintiff doesn't even have PROOF of SOL status? nor do they have payment records from the OC or CA that previously handled this account? My husband seems to think if they had records of payment and ages of the account, they would have to submit that to the court when they filed and I would have received a copy??

3. How can they PROVE it is within SOL if they don't have any payment records??? It's my understanding that if I claim SOL, they have the duty as the plaintiff to prove that it is within, not my duty to prove it is out of SOL, right? I mean, I have at least 4 old credit reports that all show the same DOLA, so I HAVE the proof. What's the deal there?

Thank you thank you oh, blessed CICers. Where would I be without you??? I know...still in the mid 400's! In 7 or 8 months I am tickling the feet of 600 FAKOS and brought my FICO up more than 100 pts.

THANK YOU!

[sweeperlady]

1. Who is suing you? Attorney for Credigy Receivables, Inc.

2. For how much? 2518.28

3. Who is the original creditor? Chase

4. How do you know you are being sued? Summons & Complaint in Small Claims

5. How were you served? Were you served? Regular old USPS, to wrong surname even (don't know if that matters, but since I've been married for more than 7 years...it does to me).

6. What was your correspondence (if any) with the people suing you before you think you were being sued? Dv'd previous attorney's office (Stewart & Assoc.) in Aug 07, received a letter back stating "path" that the account had taken to Credigy. No further calls, letters, or collection efforts after that.

7. Where do you live? Wisconsin

8. When is the last time you paid on this account? To the best of my knowledge 4/99 as stated in several old copies of credit reports as DOLA.

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). Open

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No, just DV'd attorney's office trying to collect.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. Yes Aug '07 (rec'd response early Sept '07)

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? Respond by appearing. "Plaintiff demands judgment for: 2518.28". No questionnarie.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? One exhibit stating "1. they purchased the defendant's overdue account and is therefore not a creditor under the Wisconsin Consumer Act; 2. they are duly authorized to make this Affidavit; 3. the are fully familiar with the plaintiff's business records as they relate to the defendant; 4. account is no longer executory and therefore a right to cure no longer exists; 5. to the best of their knowledge the account was not discharged in BK; 6. to the best of their knowledge the account is within SOL.

14. What is the SOL on the debt? To find out: Wisconsin SOL for all open-ended accounts (all credit cards are considered open-ended accounts in WI) is 6 years.

If you are inquiring about a the best way to sue someone, you need to answer the following questions (as much as possible):

1. Who are you suing? Credigy Receivables and their attorney personally.

2. How old is the debt? Opened in 4/1992, DOLA 4/1999, so 8 years & 9 mo.

3. If the person harrassing you about the debt is a collection agency, Is the debt being reported on your credit report? No, not the OC, not the 1st CA nor the 2nd CA

4. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) This means you wrote or called Experian, Equifax and TransUnion. No, just attorney's office for trying to collect.

5. Has the collection agency sent you a letter, called you on the phone? How did you learn about the collection? Originally from an attorney's office, lately from a summons.

6. What state are you in? Wisconsin

7. What kind of debt is this? (credit car, auto loan, student loan) credit card

8. What kind of violations do you THINK the collection agency has committed? What section of the FDCPA do you think has been violated... Trying to collect out of SOL?, here is where I really need the help!

[momof5]

OK WI has a 6 yr SOL. The fact that they used your previous surname is a bit of prima facia evidence that this debt is over 6 yrs old (since you have been married for 7).

MANY JDBs are filing lawsuits on out of statute debts in the hopes that the consumer doesn't show up and they get a default judgment. Respond to the lawsuit and raise the affirmative defense that this debt is out of statute and request a dismissal.

[sweeperlady]

Momof5,

Thanks for your response. You prompted me to think about another thing. I have used my married name since the day I got married, and if I had ever sent a payment it would have been on a check with my married name! They would have corrected my name for certain.

Anyway, just another point to think about and I'm glad you brought it up.

Thanks again!

[2001Badyear]

Since she's going to court anyway, can't she counterclaim for violation of the WI statute of repose?

[flacorps]

Since she's going to court anyway, can't she counterclaim for violation of the WI statute of repose?

It would probably be more like a motion to dismiss with a prayer for costs and fees (if the OP had an attorney who incurred fees).

[sweeperlady]

I'm consulting with an attorney this week and I am certain I will incur fees. However, as my husband and I discussed, we will be happy to pay the fees for consultation to avoid a judgement or paying on the SOL debt.

I will assume that if the attorney sees a reason to countersue, he will discuss it.

[sweeperlady]

Well, I talked with legal counsel today! My attorney reviewed the case and said he agreed that it seemed to be out of SOL and if the plaintiff doesn't have anything else proving the contrary I should be fine. He recommended that I contact the plaintiff's lawyer and discuss it with her. Tell her that it is out of SOL and that is what I will be claiming in court. He said she will likely do some investigating and either dismiss at that point or continue with the case if she finds something to the contrary of course.

I was surprised that he recommend that I contact the plaintiff's lawyer, but I will do that.

He said that if we come to court, and I claim SOL, that the clerk will hear both sides of the story and the plaintiff's attorney will probably request time to investigate the case and we'll have to come back to court for a trial anyway, so I should attempt to contact her and if she ends up dismissing it because I have proof of it being out of SOL and she doesn't have any proof then I've saved myself a trip to court. And since she'd be coming over 100 miles I would guess she'd like that too...though she might have another attorney lined up...who knows.

Will keep you posted as to what happens tomorrow...., when I talk to her, or after court!

Thanks!

[flacorps]

Good advice, but perhaps not the best advice.

Collections attorneys treat the SOL the way a running back treats an opposing linebacker ... an obstacle to run around, under, over or through. I would expect your call will generate a song and a dance and at the end of it they won't be backing down. Perhaps a "phantom payment" will rear its head.

Your attorney wasn't hungry, but what they said may work.

Their advice may help you, but does nothing, however, to help others. Say you're the 1 out of 100 that says "no" ... that leaves the folks who are suing with 99 judgments against the uninformed. Say you're the one who steps forward and sues and gets some money ... that eats up the profit from maybe 30 of those judgments. If their next batch of 100 contains 2 of you, their work looks much less attractive. Three of you on the third batch and the party's over.

Do you love your neighbor?

[gator944]

It sounds to me like the attorney suing you is one of those traveling show attorneys that bounce from courthouse to courthouse with about 30 to 40 cases in a given court on a given day. Out of these 30 cases, maybe 1 or 2 fight it and win, while the other 28 admit to the debts or don't show. Most of the time these folks get judgments awarded against them without knowing the suing attorney has no proof of the debt or it is out of SOL.

Chances are if you call and advise the suing attorney it is out of SOL, they'll tell you "Oh, OK I'll take care of it". Next thing you know the summary judgment paperwork shows up at your door advising you of your loss in court. In my opinion, you should go to court and keep this Law Rookie honest.

[sweeperlady]

You hit the nail on the head, Gator944. My attorney advised me that if I call and she says she will look into it and then says she'll dismiss it. I should still plan to show up in court until I call and verify with the clerk that it has either been dismissed or I am off the calendar.

She has 100's of cases each month and I looked through a years worth and I would guess that 90% of the defendants recieved a default judgment for not showing up.

My attorney was impressed that I was already fairly educated on the process, THANKS TO CIC!!!! But, he didn't advise me to attempt to sue. He said most people don't and I don't really have any emotional damage from it. I'm not greedy, I'm not out to teach anyone a lesson, I just don't want it on me to have to pay.

He said he would represent me in court if things go badly when I talk to the plaintiff or when I go to talk to the clerk. So, we shall see...

Thanks again!

[sweeperlady]

Faxed the plaintiff's attorney a copy of an old credit report showing the DOLA and the last couple of pages of my currect credit report showing the list of current creditors.

She filed a motion to dismiss the very same day, got a copy today, checked on line and case was dismissed. Called the clerk today just to verify, dismissed and no need for me to appear.

Plaintiff's attorney left me a voicemail a mere 15 minutes after I faxed info to her. I am certain she had NOTHING to show that I had made any payments and that this debt could even possibly be within SOL.

I PAYS PAYS PAYS to contact them and contest it. Unfortunately, out of 50 or so pending court dates, I am the only one closed. I so want to call the other folks with pending court dates being sued by CREDIGY and tell them to contest it and they have a good chance of having it deleted.

We need to educate the masses!

Thanks for your help everyone!

[gator944]

That's awesome Sweeperlady!!! Congratulations. Thanks so much for following up with your results. It really started my day with a smile!!!