received summons on sol expired cc that was previously filed

[TH853795]

I received a summons and complaint on a cc from a law firm that is almost 8 years since date of last activity. In the summons it states that a civil action was previously filed but is no longer pending. My question is can this previously filed action extend the SOL on my debt (I assume they were unable to serve me) or should I be ok using SOL as an affirmative defense. I believe SOL in MI is 6 years and I haven't been able to find online what date the inital complaint was filed.

[flacorps]

The previous filing may have no effect whatsoever on SOL, it may just be that there is a requirement that if there was a case before the complaint state that it was filed. In some courts, the intent of such a requirement is to prevent "judge shopping" by filing a complaint and dismissing it and refiling until you get an acceptable judge (some law firms have a problem with a particular judge ... particularly if the firm is crappy and that judge knows it [and especially if that firm's crappiness has burned that judge], and other judges are just a problem for everyone ... owing to incompetence or just being nasty).

Or it could be that the pendency of the prior action either tolled SOL for a time, or there may be an SOL savings statute that gives them a certain time to refile an action that has been dismissed without prejudice (say 90 days or 6 months or even a year).

You have to find out where you stand before interposing your defenses.

P.S. -- DOLA may be several months after the statute started running ... 30 days after the last payment that brought the account current may be when the clock started. You can't have the right end date without having the right start date. And it could very well matter--especially if SOL had already run when they filed the first action.

[TH853795]

I checked with the court today and the original complaint was filed on 4/06 which would have been a couple months before sol expired. It was dismissed in 9/06 and the new complaint was filed on 3/08 leaving about 18 months in between. Does anyone know if because they originally filed before sol expired if that will affect my sol defense?? I would assume once the original complaint was dismissed that they would only have the additional 2-3 months to file again but I don't really know.

[flacorps]

You need to delve into the statutes and case law in your state for answers to those questions.

My guess would be that you would be OK, but remember that fighting a case on SOL grounds and winning on those grounds is a quick ticket to a potentially costly 1099-c form next January ... if you beat 'em on their lack of documentation, not so much.