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Being sued, but might be in SOL. Help.


Longshot
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Ok everyone. I need some help here. I'm being sued by an attorney's office for charged off credit card from Citibank. I think I may have a few things to stand on here. But I want some advice. I'm going to see an attorney next week. I have legal care through work, but I would like some info to take to him.

The card was opened in 1996. Credit limit of $1500.

The date of last payment on my credit report is 09/2002.

The date of first delinquency on my credit report is 09/2002.

The date Major delinquency first reported is 11/2003.

The charge off amount was $1900.

The amount i'm being sued for is $3100.

I'm in FL and I know the statue of limitations is 5 years if i'm not mistaken. So i'm thinking i'm outside the SOL on this case so I shouldn't have anything to worry about.

However looking at my credit report, when it breaks down the monthly payments, they show payments being made as recently as 2004, 2005, and even 2007. I have never made any payments since the account was charged off back in 2002.

This was my account. I can't deny that. I got into some financial trouble in 2002 and they were the only credit card not wanting to work with me and keep me on track. So one late payment led to another, and then over limit fees and late payment fees just piled up.

Does this case sound like it's outside the SOL?

Does this sound like a case of a credit card company "re-aging" the accoung by showing payments made after the account is charged off?

I need some advice here guys. Thanks in advance everyone.

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You're outside the SOL. It's up to them to prove you may payments which would restart the clock.

Just answer the summons and be sure to put the SOL as one of your affirmative defenses.

Awseome. Thats pretty much what I thought. The only thing that worried me was showing all the "recent" payments after 2002. I haven't paid a dime on the card since then. I thought it was wierd how it said: date of last payment was 09/2002, but then they show payments being made.

Thank you so much.

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Bank statements and canceled checks may help you prove that no contemporaneous payments were made in the amounts the creditor claims (also, payments should be shown on the credit reports if they've been made ... absence of them is strongly suggestive that they did not happen--their presence in this case is unusual and bespeaks some fraud on the creditor's part).

This problem is common, and is known as the "phantom payment" problem.

If you get into discovery, you want to ask for any copies they have of any payment instruments.

Collectors have been caught trotting down to their nearest 7-11 to buy money orders and mail them to their own companies in order to re-age accounts.

Also, Florida law is pretty unclear about how tolling and restarting of the SOL work (and there's not a lot of case law). Arguably, a payment does toll the SOL if it touches principal or interest (but not necessarily fees or penalties, so you should argue that payments be applied to those first and hope those payments are too small) ... but perhaps if the touch principal or interest they toll the SOL only for the 30 days or so that would be needed to see if regular payments were going to continue.

So spotting them 30 days off the clock for each payment, you may still be well out of SOL.

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I wouldn't hinge your whole case on the SOL, but you should have lots of other things:

Hearsay or no evidence to back their claims

lack of basis of lawsuit

not qualified to sue you (there is a legal term for this, but it escapes me at the moment)

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A standing issue would be rare ... and would relate to the inability to prove ownership of a debt rather than inability to adequately document the existence of a debt.

I personally would hate to win on a standing issue because the case wouldn't be res judicata and someone could come along later with better ownership documentation and get a judgment.

Standing might also relate to a corporation suing you but not being currently registered with the state (if such registration was required, assuming the corporation to be an out-of-state corporation) such that it could not maintain suit. In Florida, that problem can be cured within a day by the plaintiff.

Caveat: in some states, failure to be licensed in some manner or other would also affect standing ... statute or case law might deny the unlicensed collector access to the courts.

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Yes, it's called lack of standing and also "misjoiner of parties". Here are some affirmative defenses.

As and for a First Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

As and for a Second Defense

Defendant alleges that this action is time-barred under §<insert the law which states SOL> of the laws of <name of your state>.

As and for a Third Defense

Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. the purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

As and for a Fourth Defense

Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

As and for a Fifth Defense

Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

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As and for a Fourth Defense

Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

Since the plaintiff alleges to be an assignee of the original creditor this defense does not apply. There is no need for an exchange of consideration between the debtor and the assignee for a valid assignment to occur between the creditor (assignor) and the debt collector (assignee).

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