Hal Jordan

I was just served on a debt that is past the SOL and I only have 5 days to respond

Recommended Posts

Well, I just got served on this debt and I literally have less than 15 days until I have to be in court!

Tonight I got knock at the door from a Sheriff Deputy serving me with a summons to appear on December 21st at 8:30am!

I am shocked on this

The attorney is literally suing me on a $201 debt and he also lied on the date that the service was provided!

The Debt validation I have from equifax and from the original medical provider show date of first delinquency at 08/2006. Service provided on 08/11/2006.

But here is what the summons says.

Comes now the plantiff and for it's cause of action against defendant states:

1: Defendant is justly indebted to plantiff for goods, wares and merchandise sold and delivered and/or services provided

2. The prices charged are fair and reasonable and are the prices which defendant promised and agreed to pay.

3: After all just credit and setoffs, there is a principle balance of $340.91 which became due on or before March 6, 2008, at which time demand was made for payment, but said blance rmeains due and unpaid.

Wherefore, Plantiff prays for judgment against defendant for the principle sum of $341.91, plus predjudgement interest from and after March 6 2008, at the legal rate of 10.000% per anum, plus special process server fees, if any, plus post judgment interest at the legal percent of 10% per anum, plus it's costs and all other relief deemed just and proper.

Signed (attorney)

Here's what I have.

I have a copy of the debt validation provided by the original medical provider that shows the date of service and the service performed on 08/14/2006.

I have a copy of the debt validation that they provided Equifax showing the first date of delinquency as 08/2006.

I have my green mailer showing that I sent a C&D letter to the attorney and in the letter I specifically state the debt is past the SOL and reference the Kansas Statute of Limitation that I sent the attorney.

Statute of limitations in Kansas is 5 years on all contract types.

The difficult thing here is I got served at 7:00pm on December 05 and have to be in court at 8:30 am december 21st! Essentially only giving me 13 days to prepare my response!

How should I respond to this?

Should I write up a response and respond tomorrow or should I show up and just plead not guilty on the 21st?

I want to file a countersuit for FDCPA violation and KCPA violation but do I have to file them before my court date on the 11th?

I'm not really sure how to respond to this. I believe that here in Kansas I just address each one of his three statements???

should I bring my proofs to court with me and ask the judge to dismiss their case based on the SOL?

Edited by Hal Jordan

Share this post


Link to post
Share on other sites

I don't know anything about KS but I would write up an answer asap. It doesn't take much. And use as your defense that the SOL are passed if you sure thats true. You need to be sure because if you admit its your bill its hard to win.

Share this post


Link to post
Share on other sites

Read your court rules. If a written answer is required, get it filed on time and send a copy to the attorney. If you know for a fact the debt is outside the SOL, there's your defense. If they challenge it, get copies of your bank statements to prove there were no payments. You also have the letter from the OC to show the actual date of service. I don't know that you could use the Equifax report because any documents you submit must authenticated. The bank can authenticate bank statements.

I would make sure no payments were made before using the SOL defense. The reason is because you might end up having to use the letter from the OC showing you did receive a service.

Share this post


Link to post
Share on other sites
Read your court rules. If a written answer is required, get it filed on time and send a copy to the attorney. If you know for a fact the debt is outside the SOL, there's your defense. If they challenge it, get copies of your bank statements to prove there were no payments. You also have the letter from the OC to show the actual date of service. I don't know that you could use the Equifax report because any documents you submit must authenticated. The bank can authenticate bank statements.

I would make sure no payments were made before using the SOL defense. The reason is because you might end up having to use the letter from the OC showing you did receive a service.

I never paid them anything. My insurance paid when billed and the remainder that they said I owed I never paid anything on. So they have no proof of any payment from me ever.

What I have from the OC is a ledger copy showing the date of service. The amount paid by my insurance and the amount I owed.

At the bottom it says "Bad debt write off" ($202.25)

Invoice total: $0.00

Share this post


Link to post
Share on other sites

How would you recommend I write the answer? I honestly have no idea as I have never been sued before.

Do I just write a general answer like this?

Defendant denies being liable to plantiff as he has never been provided with any proof of a signed contract or signed agreement for services that he promised or agreed to pay.

Defendant states the Plantiff has no legal grounds to petition the court for a ruling on this debt as the statute of limitations expired before the filing of this suit.

Wherefore, defendant asks the court for a summary dismissal of this law suit with predjudice based on the expiration of the statute of Limitations Per KSA 60-511. The date of service for this alleged debt was August 11th of 2006 of which the date of first delinquency was August 31st 2006. Plantiff filed suit on November 23rd 2011 which is well after the 5 year statute of limitations for pursuing this debt through the Kansas courts expired.

Share this post


Link to post
Share on other sites

I would deny. But I would leave off the last paragraph...you'll produce that as discovery and in a motion to dismiss.

Share this post


Link to post
Share on other sites

Considering your insurance made a payment, I just don't know if that would make a difference regarding the SOL and the date of last payment, or not. I don't think it would, but I'm just not sure.

If it were me, I'd do my best to find an attorney who will answer that question. Without knowing the answer, your responses might be a little different than they would be if you knew for sure the debt is outside the SOL.

Call the KS bar association and ask for the name of an attorney in your area. By getting his name from the KS Bar, that attorney will give you a consultation either for free or for a small fee. Some attorneys will even provide that consultation over the phone. You really need to make sure the insurance payment doesn't affect the SOL.

Also, unless your court rules allow for a general denial, you need to respond to each allegation in the Complaint. There are 3 allegations, so you need 3 responses. The format should be the same as the Complaint...court header, case number, title etc. Your rules will have information regarding the format.

Edited by BV80

Share this post


Link to post
Share on other sites

Hal, if you read the complaint, is there any doubt that the statute of limitations has run.

What I mean is, if you were to tell me that the statute of limitations in Kansas is "X" years, could I tell from looking at the complaint (and nothing else) that the statute has run?

If so, file a motion to dismiss in lieu of an answer.

Share this post


Link to post
Share on other sites

You really need to make sure the insurance payment doesn't affect the SOL.

A collateral source payment generally does not toll the statute.

Share this post


Link to post
Share on other sites
A collateral source payment generally does not toll the statute.

Thank you. I've never faced such a situation myself and just wasn't sure. I appreciate the clarification.

Regarding your last response to Hal "if you were to tell me that the statute of limitations in Kansas is "X" years, could I tell from looking at the complaint (and nothing else) that the statute has run?"

The Complaint states the wrong date of the medical service. Should he file a motion to dismiss, or answer the complaint and respond with the correct date the service actually occurred?

Share this post


Link to post
Share on other sites

The Complaint states the wrong date of the medical service. Should he file a motion to dismiss, or answer the complaint and respond with the correct date the service actually occurred?

On a 12(B) motion to dismiss, the court will look only to the pleadings and consider them as true. If the date is wrong on the complaint, it becomes a question of fact as to the correct date. Proof of the correct date, being outside the pleadings, would force the motion to be reviewed under summary judgment standards.

Share this post


Link to post
Share on other sites

Well, I have another problem..

I contacted my insurance to see when they paid their portion and they told me it was in December 2006. I called the OC and asked for a billing statement for the dates of service and they faxed me one. It showed that they processed the account in 12/2006 and asked for payment within 30 days on or before 01/2007.

The SOL has not expired on this debt.. I think I'm boned.

Share this post


Link to post
Share on other sites

As Nascar suggests, there does not seem to be any reason to file an answer specifically, since the complaint is time barred. Kind of like answering a letter sent by someone you know has died. The date they put in the complaint is two years more recent than what you claim, that will have to be resolved. You should include as much documentation as you have to support your March 2006 date. Attach a copy of the complaint to the MTD along with the relevant statute. I looked them up for you and copied them here.

60-511: Actions limited to five years. The following actions shall be brought within five (5) years: (1) An action upon any agreement, contract or promise in writing.

(2) An action brought on any covenant of seizin contained in any deed of conveyance of land.

(3) An action brought on a covenant of warranty contained in any deed of conveyance of land, after there shall have been a final decision against the title of the covenantor in such deed.

(4) An action upon the official bond or undertaking of an executor, administrator, conservator, sheriff, or any other officer, or upon the bond or undertaking given in attachment, injunction, arrest, or in any case required by statute.

(5) An action for relief, other than the recovery of real property not provided for in this article.

History: L. 1963, ch. 303, 60-511; L. 1965, ch. 354, § 12; Jan. 1, 1966.

-----------------------------------------------------------

60-512: Actions limited to three years. The following actions shall be brought within three (3) years: (1) All actions upon contracts, obligations or liabilities expressed or implied but not in writing. (2) An action upon a liability created by a statute other than a penalty or forfeiture.

History: L. 1963, ch. 303, 60-512; Jan. 1, 1964.

-------------------------------------------------------------------

60-513: Actions limited to two years. (a) The following actions shall be brought within two years:

(1) An action for trespass upon real property.

(2) An action for taking, detaining or injuring personal property, including actions for the specific recovery thereof.

(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.

(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.

(5) An action for wrongful death.

(6) An action to recover for an ionizing radiation injury as provided in K.S.A. 60-513a, 60-513b and 60-513c, and amendments thereto.

(7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.

(B) Except as provided in subsections © and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.

© A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action.

(d) A negligence cause of action by a corporation or association against an officer or director of the corporation or association shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than five years beyond the time of the act giving rise to the cause of action. All other causes of action by a corporation or association against an officer or director of the corporation or association shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury and there exists a disinterested majority of nonculpable directors of the corporation or association, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable and there exists a disinterested majority of nonculpable directors of the corporation or association, but in no event shall such an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action. For purposes of this subsection, the term "negligence cause of action" shall not include a cause of action seeking monetary damages for any breach of the officer's or director's duty of loyalty to the corporation or association, for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, for liability under K.S.A. 17-5812, 17-6410, 17-6423, 17-6424 or 17-6603 and amendments thereto, or for any transaction from which the officer or director derived an improper personal benefit.

(e) The provisions of this section as it was constituted prior to July 1, 1996, shall continue in force and effect for a period of two years from that date with respect to any act giving rise to a cause of action occurring prior to that date.

History: L. 1963, ch. 303, 60-513; L. 1968, ch. 6, § 1; L. 1976, ch. 254, § 1; L. 1987, ch. 222, § 1; L. 1996, ch. 127, § 1; July 1.

Share this post


Link to post
Share on other sites
The SOL has not expired on this debt.. I think I'm boned.

I believe the SOL on this particular "debt" is 3 years.

In any event, I wouldn't pass up the motion to dismiss if you believe you can determine from the face of the complaint that it it over 3 years old. Let the judge decide.

Share this post


Link to post
Share on other sites
If they cannot produce a written contract, Nascar is right. The SOL is three years.

They do have the "contract". Well, what they have is my consent to treatment and consent to bill my insurance with my signature and date on it.. which btw also says I'm responsable for whatever's left after the insurance.. which is $200 (roughly).

I thought about this all week last week and decided to call the attorney's office and see if they would provide me with debt validation and I got referred to one of his para's.. I assume it was a para anyway.

Long story short she asked me if I wanted debt validation which I said yes and she faxed me the consent to treatment form I just mentioned above and she sent me a copy of a bill sent in December 2006 with a due date in January 2007.

I looked it over and honestly, I couldn't see anyway out of this. The only thing I have now as any type of leverage to make them go away is to file a countersuit for an FDCPA violation on the letter they originally sent me that doesn't say the communication is from a debt collector and for some possible overshadowing by demanding payment before my 30 days to debt validation is up..

At the end of the day I just couldn't see trying to fight this thing out for $340, given that I will probably lose if I do try to go trial as I have no absolutely no defense for not paying the medical provider. And a shakey hope that a district court judge might award me some cash on their FDCPA violations..

I decided to call them back and I offered to pay them the full $341 in exchange for them dropping the case and having the courts dismiss it against me. She was kind of rude and treated me like I was wasting her time but she agreed and faxed me a statement to that effect yesterday. I mailed the funds off via money order today.

I feel a little defeated on this.. but at the end of the day it cost me $340 to settle a debt I probably should have taken care of 5 years ago and it helped me avoid having a judgement on my credit reports. Had it been over a coupleThousand dollars it probably would have been better for me to fight it and take my chances.. but for $340 it just wasn't worth the risk and stress to me.

What would you guys have done in my situation?

Share this post


Link to post
Share on other sites

Even with a signed contract, the SOL is five years at best. This appears to be beyond that.

The date of service for this alleged debt was August 11th of 2006 of which the date of first delinquency was August 31st 2006.

This is in their pleading, make them abide by it. Unless they filed an amended pleading stating a different date, I'd go with this. I would file a motion to dismiss based on the SOL. The worst that can happen is that it will be denied. For this amount of money, how much do they want to pay a lawyer to fight?

Share this post


Link to post
Share on other sites

Hal, you did what you were most comfortable with and that is what's important. It wasn't worth the aggravation and stress to fight it and you settled. I would have done the same thing given the circumstances. It wasn't a slam dunk , so who knows how the judge would have ruled. And if he ruled against the SOL argument, you would have been stuck paying the other sides legal fees as well.

You ended it cheap. Nothing wrong with that....

Share this post


Link to post
Share on other sites

It's over. I received notice that they dismissed their case against me.

This actually went pretty smoothly and quickly. I offered to pay them in full for them dismissing the case and providing me with a receipt stating the debt was satisfied. They confirmed the deal in writing. I paid them and a few days later I got a letter back from them saying the debt is fully satisfied and they filed a motion with the courts to dismiss.

I called the clerks office this morning to find out the status of the case and they told me it had been dismissed. The judge signed their motion to dismiss on the 21st.

I'm glad it's over.. I have worked really hard over the last year to get my credit back up to something that I don't have to be ashamed of and a judgement against me would have trashed my score and undone all the progress I've made.

It sucks paying debt collectors and their racked up fees and interest. Plus I particularly hated paying this debt collector because out of all the tens of thousands of dollars they got from me and my insurance company they come after me for a lousy $200 left over on their $2000+ MRI! But that's moot at this point. It's paid. They went away and I have no judgements on my credit report.

I think the thing most everyone else should take from my little experience here is no matter how small your debt.. someone may in fact be willing to sue. I mean, these people hired a lawyer and sued me for $202.

Share this post


Link to post
Share on other sites
It's over. I received notice that they dismissed their case against me.

This actually went pretty smoothly and quickly. I offered to pay them in full for them dismissing the case and providing me with a receipt stating the debt was satisfied. They confirmed the deal in writing. I paid them and a few days later I got a letter back from them saying the debt is fully satisfied and they filed a motion with the courts to dismiss.

I called the clerks office this morning to find out the status of the case and they told me it had been dismissed. The judge signed their motion to dismiss on the 21st.

I'm glad it's over.. I have worked really hard over the last year to get my credit back up to something that I don't have to be ashamed of and a judgement against me would have trashed my score and undone all the progress I've made.

It sucks paying debt collectors and their racked up fees and interest. Plus I particularly hated paying this debt collector because out of all the tens of thousands of dollars they got from me and my insurance company they come after me for a lousy $200 left over on their $2000+ MRI! But that's moot at this point. It's paid. They went away and I have no judgements on my credit report.

I think the thing most everyone else should take from my little experience here is no matter how small your debt.. someone may in fact be willing to sue. I mean, these people hired a lawyer and sued me for $202.

I was in the same position you were and ended up doing the same thing .

I just paid it ( monthly installments) and they filed a motion with the courts to dismiss.

Then some how I forgot to pay the last $50 and they had a writ for garnishment . They ended up taking $50 plus for 5 weeks in a row. My employess could do nothing due to the writ even tho I explained it was only for $50. Imagine if it was for hundreds of $ people would not have a paycheck for 5 weeks..crazy huh ?

Long story short I got the extra money they took back and they never filed a judgement against me on my CRA.

Looking back I think they broke the law. I was never served a summons. I live in a huge co-op building here in NYS .

One day I go downstairs and plastered on the front main entrance door where everyone enters was the summons for everyone to read. All the information was plastered on the door.

I'm not sure if they broke the law..I should have looked into it and had the super of my building give me the video tape of the guy who plastered it on my door for the worls to see.

I did owe the money and decided to call them and set up a payment plan to just pay it and get it over with.

Did they break the law ?

PS: Congrats on getting rid of this judgement ..now it's out of your life !

Share this post


Link to post
Share on other sites

It's over now, and you never have to worry about it again. Peace of mind is priceless. :)

Share this post


Link to post
Share on other sites
geez, how about you just pay the 300 bucks and never have to deal with it again?

Because that statement is bull****. People who sh*t on the law should NOT financially benefit from doing so. This is why we have laws.

The whole reason the courts ate jam-packed with these horse manure cases is because so many people think exactly what you just said there and by doing so, they are fundamentally ignoring the fact that YOU HAVE RIGHTS. One of those rights is to not be subject to the abuse of court process by debt collectors.

When you exercise your RIGHTS, you guarantee that you will still have them for years to come.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.