Production of Documents

[simplyred]

bumped

[nascar]

This, of course, is totally up to you but I have a feeling that the other side probably is going to have a pretty compelling case that the debt belongs to you - based on the fact that they have the app. you referred to. You can bet they have more than that when push comes to shove - they sent that to you as a teaser.

If your case is built around trying to prove the debt isn't yours, you might want to be flexible enough to change your strategy from "prove it's mine" to "prove you are legally entitled to collect."

I might be totally wrong but it never hurts to be prepared.

[simplyred]

bumped

[Debt Guy]

I was just wondering if I can just have that striked

Strike what and why?

I am confused. If this is a dispute over SOL, exactly what are you trying to get from production of documents?

I don't understand what you mean by The lawyer is saying that the money became due 1/2003 when they closed the case. What does that mean? How do you or the attorney think it is meaningful?

Someone might be able to help if you were more clear on exactly what is going on.

Do you have anything to prove the DOFD?

[simplyred]

bumped

[swirlgirl]

I have my credit report where the CA verified DOFD 1/2002 on the cr it shows the account was closed by the CA on 1/2003. My affirm defense when I answered the summons was SOL. The suit was filed in 4/2008.

From what I understand, the SOL is based on the Date of Last Activity (DOLA) and not DOFD. Did you make any payments at all between 01/2002 and 01/2003. Any other account activity?

[simplyred]

bumped

[nascar]

If SOL is your defense, request (if you haven't done so already) the other side to admit that they have no evidence that you made a payment on the account after 12/2001. That's the only question you need to ask. At the same time, to save time, send a request for them to describe any payment made past 2001 and to whom and to provide copies of same (if you haven't already).

[Debt Guy]

In most states, SOL begins to run from the date of first harm. DOFM is sometimes referred to as DOFD but is in truth more subtle. DOFH may or may not be the same as DOLA -- but most often not the same. Technically, the date of first harm is the date you defaulted on the debt and after which the account was never brought current. Bringing the account current resets and restarts the DOFH. In most states, DOFH is 30 days after the last payment you made on the account.

Not all states go by these same rules. You need to read and understand the statutes of your state.

I've never heard of a SOL beginning to run on the date the creditor closed the account. But, that does not mean your state does not use that rule. That is why it is absolutely critical that you know the statutes of your state. The judge may or may not know. He is going to go with the side that shows him something in writing that says one way or the other. You must be prepared for this. I would encourage you to stop reading what other people on websites tell you is the answer and go read the statutes of your state for yourself. The judge is not going to care what someone on a website told you.

Your comment: After 1st payment missed account becomes due and payable in full. gives me some pause. Are these words from the loan agreement or are you relying on some other document for that statement? Very few statutes use words like these. Usually, the creditor has the right to accelerate the debt when the first payment is missed but typically does not do so. You need to make double sure you know what you are talking about here.

Generally speaking, judges will not accept credit reports as evidence of DOFD. Think about it for a minute, how are you going to get a representative from the CRA come to trial to testify that they have personal knowledge of the accuracy of what is on the credit report? Never gonna happen. Until then, it is just hearsay.

Nascar is suggesting you seek an admission that the creditor has no record of payments made after 12/2001. I agree that would be the correct way to establish the DOFH. If the plaintiff says they have such evidence of payment, then let them produce it.

Does this make sense to you?

[nascar]

I've never heard of a SOL beginning to run on the date the creditor closed the account.

The reason you haven't heard of this is because there is no such thing. A statute of limitations is, for the purposes of the subjects discussed in this forum, a procedural rule. It is not triggered by specific events such as the one you have described above.

The statute begins to run when a cause of action accrues. Now, when and if this happens depends upon the provisions of the breached agreement. A cause of action might accrue on a credit card the first time you are late or due to some other predetermined event. The terms of your agreement might/probably will state specifically what this event is. More than likely that event occurs when you fail to provide payment in full when the creditor evokes the acceleration clause in your agreement.

It very seldom is actually the date you became late. For example, if your card has, say, a 15 day grace period, you're "late" on the 2nd if your payment is due the first. But, the terms of the contract provide you with a grace period during which no cause of action will accrue as long as you pay before the end of the grace period. Now, keeping this in mind, lets say the creditor filed suit against you on the 10th for the full amount due. Since you have until the 15th, no cause of action has yet accrued - so the lawsuit would be considered premature and ripe for dismissal - even though you did not pay on the "due date." You see where I'm going with this.

We toss the due date around as the SOL trigger event because its generally going to be very close to when the actual cause of action accrued - but it is nowhere near etched in stone. Like everything else in law, pinning something down to an absolute is much easier said than done.