Jump to content

Questions on Service, Tolling, and Affidavit


Recommended Posts

I am in CO. and I would really appreciate any help with these issues. Below is a summary of the situation and related questions.

Service

I was recently served an alias summons with a complaint (simplified civil procedure) dating back to 2008. The account is a merchant card with the last activity taking place in ’03. Apparently the JDB was trying to serve the complaint to one of my previous address’s, however the address they were trying to serve was not the one listed with the OC. When I took a look at the court records on line, I discovered that the original complaint was filed in 2008 and an affidavit of service was filed claiming that they had served a relative at the previous address. The JDB was not able to get a judgment, the JDB continued the case a few times and then it was closed for lack of progress in 2008. Almost 2 years after the closed date, the case was reopened by the JDB, they attempted again to serve the same incorrect address, then several months later the court dismissed without prejudice for failure to prosecute. 2 months later the JDB reopened the case, served me an alias summons correctly at my current address with the original complaint from ’08. I filed my answer and that brings us to now.

Question 1) With regards to the SOL, when would the case be considered commenced? At the time the original complaint was filed? Reopen date nearly 2 years after the closure for lack of progress? When I was correctly served and made aware of the action?

Question 2) If the case was considered commenced upon the original filing thus tolling the SOL, when would the clock begin to run again and what effect does the closure for lack of progress have on the toll? What happens to the nearly 2 year time gap between the closure and reopen? I am aware of the 3 and 6 year CO. SOL debate and am looking at all angles as the JDB will no doubt claim a 6 year SOL.

Affidavit

The papers I was served contained zero evidence of a debt. There was no OC agreement, no statements, nothing but the alias summons and the original complaint. When I filed my answer on the day stated in the alias summons, the clerk gave me a copy of a verified affidavit filed with the court less than 24 hours before my appearance date with the affiant being an employee for the JDB. This is the only evidence of the debt that has been provided currently. There is no printed name for the affiant, only a signature with a 2010 date that is illegible so I don’t even know the name of the affiant for verification purposes. I did look up the notary and that party appears to be valid. There are 3 different dates on the affidavit. The original return date listed is from 2008, the date the affiant signed is from 2010, and it was filed with the court in 2011. Second, there is the following phrase “the plaintiff is owed $958.21 as of 2010, including reasonable attorney’s fees, interest and court costs”. The amount on the original complaint from ’08 is for %50 more than the affidavit amount, and amount the CA is now claiming is %120 more than the affidavit amount. In the affidavit it states that the information provided to the JDB is from ABC bank which is not the original bank for the account and the complaint lists the JDB and XYZ bank, yet another bank for the account that is different from the one listed on the affidavit and also not the original bank.

Question 3) If the amount phrase on the affidavit states the words “including reasonable attorney’s fees, interest and court costs”, should the amount on the affidavit and the complaint be the same?

Question 4) If the amounts should be the same, can the JDB claim more money (legally) on the original complaint from ’08 than what is listed on the affidavit signed by the affiant in ’10, 2 years after the original complaint was filed?

Question 5) How long is an affidavit valid for and when does it expire if at all?

Question 6) Based on all the information given above what violations are present if any?

I have combed the state rules of civil procedure and am still confused on these issues. I apologize in advance for the post being so long, I just wanted to make sure that I included as much information as possible for responders. I thank you all for any help you can provide and for this wonderful informative site. It makes things a bit less scary.

Link to comment
Share on other sites

Guest usctrojanalum

Question 1) With regards to the SOL, when would the case be considered commenced? At the time the original complaint was filed? Reopen date nearly 2 years after the closure for lack of progress? When I was correctly served and made aware of the action?

Have literally no idea. I am so confused by what has transpired since 2008 can't even attempt to answer this question.

Question 2) If the case was considered commenced upon the original filing thus tolling the SOL, when would the clock begin to run again and what effect does the closure for lack of progress have on the toll? What happens to the nearly 2 year time gap between the closure and reopen?

See response above. Did they serve you a complaint that was filed in 2008?

Question 3) If the amount phrase on the affidavit states the words “including reasonable attorney’s fees, interest and court costs”, should the amount on the affidavit and the complaint be the same?

They are probably alleging that the balance accrues interest.

Question 5) How long is an affidavit valid for and when does it expire if at all?

Affidavits do not expire.

Question 6) Based on all the information given above what violations are present if any?

If we can figure out what is going on with the SOL, they may be trying to litigate a claim where the SOL has expired.

Link to comment
Share on other sites

Colorado SOL on open accounts (credit cards) is 3 years. It was 5 years from last activity in 2003 until the 1st filing in 2008. Time barred debt due to SOL. File a motion to dismiss immediately. If you need case law for the SOL on open accounts, PM me. I use to live in Colorado and won against Capital One on the same violation.

Link to comment
Share on other sites

Thank you for the responce, I will try to clarify.

The complaint was filed in 2008. A copy of this complaint from 2008 is what I was recently served with.

They attempted to serve it back in 2008 but at a previous address I was no longer at.

In the time they tried to serve me at the incorrect old address until now this what has taken place

2008 -

original complaint filed, attempted to serve at previous address I no longer lived at.

JDB filed affidavit of service claiming they served a relative at old address, court would not give them the judgement. (I am guessing they did not believe that complaint was served correctly)

JDB continues case several times

Case Closed due to lack of progress.

2010 -

JDB reopens case

JDB attempts to serve incorrect old address again.

Court dismissed without prejudice for lack of prosecution

2011 -

JDB re opens case

I am served with alias summons and exact copy of original complaint from 2008 at current correct address.

Thank you again

Link to comment
Share on other sites

HoppinMad is dead on correct. Specifically on a "merchant account" there is NO doubt that the SOL is 3 years. If you defaulted in 2003 and they filed the first time in 2008, then you were already outside of the SOL at that time. The SOL gets a little hazy when trying to make the distinction between credit cards and merchant or open accounts. But for open accounts it is clearly 3 years.

Now that I've gotten a little more information, I'll send you some stuff via PM that I used in my case.

To answer the question you posed in PM, the best tactic with M&J is to A) Keep scrupulous records of everything you do or have done in your case. B) Make sure you send everything certified mail return receipt requested (CMRRR) and hold onto that green card. C) Make a counterclaim so they can't just suddenly drop the case without prejudice without your input.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.