How do I prove SOL in court?

[kimmers64]

Yesterday two (2) summons were left on my front door, which my husband found when he got home. I checked with the court today, no cases have been filed. The documents consisted of 4 pages each - Summons, Complaint Under Simplified Civil Procedure, Answer Under Simplified Procedure, and a letter with the attorney's contact information (at the bottom was the "This is an attempt to collect a debt..." verbage). The Plaintiff is listed as Capital One, FSB and Attorney for Plaintiff is Linebarger Goggan Blair & Sampson, LLP. (two different credit card accounts, same creditor).

My questions are:

1. Statute of Limitations - when does the SOL start? On my Equifax credit report it shows last payment date of 7/2004 for both accounts and a charge off of both accounts 8/2005. The other 2 credit reports aren't clear on dates. It was my understanding the SOL starts from the date of 1st delinquency, which would have been 5/2004.

2. How do I prove in court that this debt is beyond the SOL? If/when the judge asks for the specific applicable statute/law what do I use? The CFDCPA does not specifically address when the SOL starts.

3. The Summons has not been filed in court - should I just fill out the Answer Under Simplified Civil Procedure form and show up on the date specified, citing the SOL as my affirmative defense? Or should I fill out the Answer form, take a copy to their office to have them date/time stamp that they have received the Answer, then show up in Court?

4. The Summons has not been filed in court - should I DV this as well as do #3 above?

[kimmers64]

bump

[cjtx]

Once you raise your SOL affirmative defense, the burden of proof shifts to the plaintiff to show that the account is still within SOL.

SOL is determined by the laws in your state of residence. It usually starts running from the date of first delinquency, but it can also be date of last payment + 30 days. Check your state's laws.

Linebarger doesn't always check to see if the account is still within SOL.

[merrybucks]

I would take the paperwork to the clerk of the court to see if it official. I would ask the attorney for a DV and nothing else.

[sweeperlady]

Call the attorney and claim SOL. If you have any proof at all, fax it to them and see if they will dismiss. Chances are very good that they don't have a payment record for your debt and will have to dismiss.