jeff99gsx

Creditor Suing Me for debt that is Way passed SOL

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Hi everyone, I got a letter in the mail yesterday from a local attorney office stating that I am being sued for money due. This attorney office wants to represent me but I have NOT been served papers yet. I went to the Court website and i see the case was filed May 9th 2013, There is no court date and no papers have been served.

 

I have not owned a credit card in over 6 years. Isn't this debt passed the Statute of Limitations? I recently bought a house in 2011 and I'm guessing they must see that as assets they can seize to pay this debt.

 

I don't understand why this came up all the sudden? I was reading other cases on this site and someone said that a creditor will actually make a small payment on an old account to restart the SOL? is this TRUE? how can they get away with that?

 

Is there anyway to file a motion to dismiss this case before I am served Papers? I don't have money to even pay a Lawyer. I am on Unemployment now cause i lost my job back in February. I want to squash this before it even goes to court. I literally have NO money. What can I do? Any suggestions will be greatly appreciated. 

 

 

 

 

 

 

 

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Yeah, this could be for blowing through the E-Z Pass for all you know. We need more details before we can help.

 

They get away with extending the SOL because almost all of these suits turn into defaults. Not this time, right?

 

Sometimes they just sue beyond the SOL. That is a violation and will cost them money if that is the case.

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Well I didn't want to give too many specifics...but Asset Acceptance is suing me according to the court Docket. They have not served me papers yet. I just don't know what to do. This is a debt from 2004-2006 give or take. How can I find out the REAL SOL start date? would it be in my Credit Report? Its been SO long i don't know if its even on there.

 

I just don't know what action to take without getting a lawyer. Let me know what other facts you need. I live in Ohio. Do I have to just wait to get papers? or should I take action now?

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First, find out what the SOL is for your state so that you will know for sure. Second, make sure that no ONE has made a payment on that account to change the SOL. Third, find all your records on the account and double check them to make sure your okay on the SOL for your state.

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That's the problem though, it's been so long I don't even know what credit card it was. In Ohio the SOL for credit card debt is 4 years. Maybe a HSBC but im not sure. Should I get a credit report. If so can anyone suggest a good one?

 

how long does the lawyer have to serve me papers?

 

I keep getting letters from other lawyers trying to represent me...are they just fishing around to try and get me to pay a settlement or re-start the SOL date

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You determine the actual Date of last payment (which is the date that would start the SOL) by subpoenaing those records from the Plaintiff in a process called Discovery.

 

Discovery is a lot of fun - they wills end you a list of questions designed to entrap you into confessing the debt is yours and waiving all your offsets and  defenses and will demand you provide them with the documents they need to prove their case. You will send them a Discovery demand and they will refuse to answer any of your questions and will refuse to provide any of the documents you demand (even if they are the very documents they need to meet their Burden of proof as plaintiff) and they will object to your questions as "irrelevant", "privileged" or "burdensome". I actually saw a Discovery Demand Response where the Plaintiff objected to the question "What is the plaintiff's State of Domicile?" as "unnecessary, privileged and unduly burdensome"!!!!

 

Meanwhile, the more you make their lawyers work, the  more billable hours they can rack up for their clients to pay them for. At $250 or so an hour it doesn't take much to have them paying their lawyers more than they can ever get from you even if they do win.

 

Don't forget to Countersue them for the FDCPA violation of suing on an Out of Statute debt.

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@jeff99gsx

 

You can't doing anything in regard to the complaint until you're served.  However, in the meantime, start researching.  Read your rules of civil procedure. 

 

Another thing you can do is to go ahead and check your credit report to see if Asset is reporting.  If they are, you might be able to recognize the account from their entry.   Then you can start figuring out if the account is yours and when you made the last payment.  In fact, Also, Asset might report a date of last payment.

 

As soon as you get the complaint, find out who the original creditor (OC) was, and immediately check your credit report to see if the former OC was reporting. Their entry might also show when you made the last payment.

 

If the debt is outside the SOL, get the proof because filing suit on a time-barred debt is an FDCPA violation.   Once you're served, not only would you answer the complaint, you could file a counterclaim.

 

15 USC 1692e(2)(A):

 

False or misleading representations

 

(2) The false representation of— (A) the character, amount, or legal status of any debt;

 

Section 1692e provides that a debt collector "may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. A debt collector violates § 1692e by, among other things, falsely representing "the character, amount, or legal status of any debt." See § 1692e(2)(A). As courts in other jurisdictions have pointed out, "[c]ommon sense dictates that whether a debt is time-barred is directly related to the legal status of that debt." Dudek v. Thomas & Thomas Attorneys & Counselors at Law, LLC (N.D. Ohio. 2010), 702 F.Supp.2d 826, 833.

 

Filing a complaint to collect a debt that has been extinguished by the passage of time clearly falls within Section 1692e(2), prohibiting false representations about the character or legal status of any debt. It may also violate Section 1692f, which prohibits "unfair or unconscionable" methods of debt collection.  Deere v. Javitch, Block & Rathbone, 413 F.Supp.2d 886, 891 (S.D.Ohio 2006).

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The only thing you can do is wait to be served and then answer the complaint,,,,,when you get the complaint post it on the forum minus your identifying info and we will help you answer it.

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Okay thanks for the help! I will let you know ASAP when I get served papers. I noticed on the online court docket it says I owe Debt with interest from 08/20/13? so does that mean the attorney probably made a payment on 08/20/13? I'm going to get my credit report now. 

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I'm not sure, but the last I heard, Ohio was trying to decide what the SOL for CC debt is.  I'm pretty sure its not 4 years...may be 6 yrs...but I know it used to be 10 yrs.  Ohio is NOT consumer friendly.  You need to check the actual laws...

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Okay thanks for the help! I will let you know ASAP when I get served papers. I noticed on the online court docket it says I owe Debt with interest from 08/20/13? so does that mean the attorney probably made a payment on 08/20/13? I'm going to get my credit report now. 

 

Uh... 08/20/13 hasn't com yet. Three more months away?

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I'm not sure I thought the SOL for CC debt was 4 years in Ohio, but can anyone else clarify? Where can I find out a 100% for sure answer?

 

 

On a side note, I looked up my credit history and I see NO accounts with the dollar amount I am being sued for. The only card I see shows that I owed 3,607 and it says CLOSED /$1,989 written off...then it says status details: This Item was updated from our processing of your dispute in May 2010.

The it says (date of status 04/2009) Last payment 04/2009  / recent balance as of 04/2009   $0

 

 Is it possible that the loan broker did something when he was trying to get us approved for our house in 2010-11? I know he filed a dispute saying I didnt owe that money...can that restart the SOL?

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I'm not sure I thought the SOL for CC debt was 4 years in Ohio, but can anyone else clarify? Where can I find out a 100% for sure answer?

 

 

On a side note, I looked up my credit history and I see NO accounts with the dollar amount I am being sued for. The only card I see shows that I owed 3,607 and it says CLOSED /$1,989 written off...then it says status details: This Item was updated from our processing of your dispute in May 2010.

The it says (date of status 04/2009) Last payment 04/2009  / recent balance as of 04/2009   $0

 

 Is it possible that the loan broker did something when he was trying to get us approved for our house in 2010-11? I know he filed a dispute saying I didnt owe that money...can that restart the SOL?

 

Two things. If you made a payment on 4/2009, it is possible the 4 year SOL is not up. A debate around here but some believe the clock on the SOL begins at default which is 30 days after your last payment. (or the next due date after your last payment).  Considering that would be 5/2009, it is possible that, within a few days, they got it in on time.

 

Disputing a debt cannot reset the SOL. Only payment activity (or charge activity if they allowed you to use the card after you stopped paying) can reset a SOL.

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Okay when I stated last payment 4/2009, I was looking at my Experian report and it just says Date Reported was 4/2009 and Date of status is 4/09....it doesn't actually tell me when the last payment was. So now I printed my Equifax CR and it says Date of last Payment: 01/2009...and then it says (Date Major Delinquency reported 01/2009)

So I guess 01/2009 is the last payment according to Equifax.

 

Can anyone shed more light on the SOL for CC debt in Ohio? Is it 4 years? 6 years? 10years? 15years? 

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Looks like it depends on what they sue you for. You could argue 4 years. Tough one.

 

 

Statute 2305.06

Except as provided in sections 126.301 and 1302.98 of the Revised Code, an action upon a specialty or an agreement, contract, or promise in writing shall be brought within eight years after the cause of action accrued.

 

 

 

Statute 1302.98

 

(A) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.

(B) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered.

(C) Where an action commenced within the time limited by division (A) of this section is so terminated as to leave available a remedy by another action for the same breach, such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.

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I'm not sure, but the last I heard, Ohio was trying to decide what the SOL for CC debt is.  I'm pretty sure its not 4 years...may be 6 yrs...but I know it used to be 10 yrs.  Ohio is NOT consumer friendly.  You need to check the actual laws...

Yes, OH is definitely not 4 years.  The case law is a little foggy.  

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Statute 1302.98

 

(A) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.

I think that's on a contract though....

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I think that's on a contract though....

 

That's why I said it depends on what they're suing for. Could that apply if they sue for breach of contract? Account stated would be different but you could argue 1302.98 for a breach of contract suit, correct?

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If OH statutes or case law is not specific as to the SOL for credit cards, the easiest way to find out the SOL would be to contact an OH consumer attorney and just ask that question.

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