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MCM are a bunch of trolls

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Yeesh. What a waste of time this is going to be.

My wife was served yesterday for a credit card she and I don't recall her ever having that was allegedly purchased by MCM who is now suing for $550 + costs.

I checked her credit report and found said card on her report, but it shows it defaulted (went 30 days late) in Aug 2006. Under Colorado law, the SOL is 3 years on a credit cards (yeah, I know, some claim six, but I've got enough evidence to argue three and I've "won" a case arguing three). Oddly enough, it's the same credit card company that previously sued me and I won a dismissal with prejudice based on three years, but not the same account. Assuming they're going to hit us up with the same credit card agreement I'll really nail them to the wall with choice of law because HSBC offers choice of Nevada law and Nevada is EXTREMELY clear that credit card SOL is 4 years.

So obviously, I can use a lot of the same arguments and responses I used for my case against HSBC (especially since in my case they'd sold it to another JDB too), but I learned a few things from my last go around and just need a little advice here.

First, we're going to obviously deny that she ever had the card to begin with. Neither of us remember her having one in her name from them and they didn't attach anything to the complaint like a credit card agreement, an application with her signature, the full card/account number, or anything else that might help jog our memory. Since we're flat out denying that she ever had the card to begin with, can I use attempting to collect on an uncollectable debt as a point for countersuit now? I know that once they provide any "evidence" of the account to begin with, I would be able to use that as it's outside of its SOL and that makes it uncollectable, but I don't want to go through the trouble of filing an answer and paying the various fees just to have them drop it without prejudice at the last minute. Filing a countersuit guarantees they can't just run to hide under the rock from which they crawled without me getting in a dig or two.

Second, what other affirmative defenses, besides, that account's not mine and I never heard of it before would be most useful here? The complaint uses those wonderfully loaded terms such as "breach of agreement" and "account stated" but again, there's zip attached to the complaint that would be of any help here.

Third, I'm just being lazy here, but what's the best phrasing to include at the bottom of our answer that says, this is what I'm submitting now, but I reserve the right to change and add to it later if they try anything sneaky or underhanded or actually bring any evidence to the table?

Fourth, I want to file a motion to dismiss right alongside my answer; try and get this mess resolved right away and not wait the agonizing months and multiple motions for them to eventually settle before a trial date. Does anyone know offhand if that's permissible in Park County, CO?

Fifth, there's one extra page attached to the complaint after the form they so conveniently provided for filing an answer that says:

I declare under oath that I am the Defendant in this case; I received and accepted service of the Summons and Complaint and Answer Form in this case; that I waive any other service, and consent to the jurisdiction of this court to determine all issues raised in the pleading as if I were served by personal service within the State of Colorado.

It then has two choices to select from, either military or:

I am not in the military service. This waiver of service is not to be construed as an admission by me of the truth of the allegations in the petition and I reserve the right to receive notices of settings and the right to respond and appear in person if I wish.

This page is to be signed by my wife (the named defendant), presumably and by a notary. Getting a notary isn't a big deal and signing something that admits my wife accepted service and is the named defendant isn't too big a deal, it's the waiver part that bugs me. Has anyone seen this sort of thing before and exactly what would my wife be waiving by signing this?

I'm going to start putting together an answer for these losers based on what I know already and seeing if we can't qualify for a fee waiver since my wife is a housewife with no income and my measly income pays for our family of five (have I mentioned that's my favorite part of all of this? Even if we go through the motions and lose, my wife is virtually judgment-proof right now which makes it really unattractive for them to really pursue it like crazy).

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Okay. Putting together a response and strategy now for my wife (since she is the named defendant).

Basically, since they didn't attach anything to the complaint that supports them either a) owning the debt or B) proving it belongs to my wife, I'm starting with the This isn't my debt and I dare you to prove it strategy and answer.

This way I'm not even going into the whole SOL and choice of law questions, but it leaves me with the difficult task of figuring out what to do about a counterclaim. Any suggestions?

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Put the SOL and choice of law issue in your answer anyways. If you do not bring it up, you could be barred from bringing it up in the future unless you go through the hassle of amending your answer. You already have the agreement that they will probably use. Use it against them.

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it seems you should be able to file a counterclaim for being sued on time barred debt. if the circumstances in this lawsuit are the same as the circumstances in the prior lawsuit that you got dismissed you should be able to use the doctrine of collateral estoppel. sorta like using the prior case as a sword with respect to SOL.

and yes, put this in your answer asap i agree with WhoCares1000% LOL 100%

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