surfhn Posted October 2, 2008 Report Share Posted October 2, 2008 I have posted about this company before, (MCM). I originally sent them a letter last November in '07. The letter I sent was a letter stating that I believed this purchase to be fraudulent. They contacted me by mail on the 26th of september of this year. This is my response to them. I don't want to open myself up to a suit if I can avoid it. Is there anything in this that may provoke a suit? How do you prove, in court, the SOL have expired? Thanks!!!Dear Collector:This letter is being sent to you in response to a mailing I received from your office on September 26, 2008. In a certified mailing, sent by me, that your office signed for on November 20, 2007, I replied to you that the money you are trying to collect was on a Dell Account that was used to fraudulently purchase merchandise without my knowledge or consent. Again, I am telling you that the above referenced account was fraudulently used to purchase merchandise, without my knowledge or consent.You have not provided me with competent evidence that I have any legal obligation to pay you. “Computer generated” forms are not competent evidence, as you know. Also, the statute of limitations in my state, (SC), for this alleged debt is three years. This is not a refusal to pay, but an attempt to validate an alleged debt. Please contact me only by mail. Do not call my personal telephone number, and do not call my work telephone number—because my employer does not allow these types of calls, and do not call any of my relatives or friends. Your anticipated cooperation in this matter is greatly appreciated.Best Regards Link to comment Share on other sites More sharing options...
swirlgirl Posted October 2, 2008 Report Share Posted October 2, 2008 If the merchandise was fraudulently purchased, why are you afraid of a lawsuit? Have you filed the ID Theft paperwork? Link to comment Share on other sites More sharing options...
surfhn Posted October 3, 2008 Author Report Share Posted October 3, 2008 I posted something earlier: that 4 yrs ago my ex-wife had purchased something fraudulently without my consent or knowledge. I did not fill out the affadavit or file a police report at the time because I did not want to see anything bad happen to her--i know not very bright. I don't want the hassle of a lawsuit. I would have to do it pro se, and I don't feel comfortable, at this time representing myself. So I was hoping that I can just keep them at bay, and if I have to go to court how do you prove sol. Link to comment Share on other sites More sharing options...
whocares Posted October 9, 2008 Report Share Posted October 9, 2008 You don"t have to prove SOL, they have to prove it is collectable and not time barred...SOL is an affirmative defense to get a lawsuit dismissed...BTW SC is a community property state so her debt is your debt...DV them and hope they come up with reaging an account or something else you can fight...when they respond with details they will either have to FOAD or sue you, either way...they still need a DV to get the ball rolling.BTW the letter needs work...you need a clear dv letter with details, ansd a cease and desist letter as well as a FOAD letter if you are correct.Don't try to do it all at one time...great games become great games after thought and timed moves...Good Luck Link to comment Share on other sites More sharing options...
nascar Posted October 9, 2008 Report Share Posted October 9, 2008 You don"t have to prove SOL, they have to prove it is collectable and not time barred...SOL is an affirmative defense to get a lawsuit dismissed...Yes, SOL is an affirmative defense. As such, the burden of proof rests with the party raising it. The other side has no obligation to prove the debt is collectible. [Defendant] had the burden of proof on each affirmative defense. As regards the limitations defense, it was incumbent on him to establish when the statute began running and, since he sought summary judgment, to demonstrate the absence of any dispute about the timing of the breach. Key v. Trattman, 959 So. 2d 339 (Fla. App. 2007) [Defendant] has the burden of proof on all affirmative defenses, such as the statute of limitations. Fonseca v. Conrail, 246 F.3d 585 (6th Cir. 2001) Link to comment Share on other sites More sharing options...
Credithis Posted October 9, 2008 Report Share Posted October 9, 2008 South Carolina is Not a community property State. There are only nine States that are:Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. So you are good on that score. Also, I posted before about SC and how its laws mirror the FDCPA. File that form with the SC Dept. of Consumer Affairs and also send a copy to Midland. http://www.debt-collector-problems.com/South-Carolina-Fair-Debt-Collection-Practices-Act.htmlHere is the form:http://www.scconsumer.gov/complaint_services.htmSTATUTES ENFORCED BY SCDCA: http://www.scconsumer.gov/legal/statutes.htmAthletic Agents & Student Athletes Section 59-102-10 et seq. Continuing Care Retirement Communities Section 37-11-10 Credit Grantor Notification and Fees Sections 37-6-202 & 209 Maximum Rate Schedules (Filing and Posting) Loans - Section 37-3-305 Maximum Rate Schedules (Filing and Posting) Sales Section 37-2-305 Mortgage Loan Brokers Act Section 40-58-10 et seq. Motor Club Services Act Section 39-61-10 et seq. Motor Vehicle Express Warranties Section 56-28-10 et seq. Pawnbroker Section 40-39-10 et seq. Physical Fitness Services Act Section 44-79-10 et seq. Prepaid Legal Services Section 37-16-20 et seq. Prizes and Gifts Act Section 37-15-10 et seq. Remedies & Penalties Limitations on Creditors' Remedies Sections 37-5-109, 110 SC Consumer Protection Code - Title 37 Staff Leasing Services Section 40-68-10 Telephone Solicitations Section 16-17-445 Unfair Debt Collection Practices Act Unconscionability Section 37-5-108 Link to comment Share on other sites More sharing options...
Recommended Posts