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Guest · Posted: Wed Jun 25, 2008 7:04 am Subject: Spoke to an attorney about my case

I am being sued for a debt which is now bought by a jdb. In my answer to my summons I said that I have never done any business with the plaintiff. He told me that I do not have a chance of defending myself and that I might as well sign the stipulation of settlement agreement that they sent me. i do feel that I didn't handle this properly from the beginning because I was unaware of my rights or how to defend myself. I have the stipulation agreement, I did not return it back but after hearing this I feel that I will lose anyway. Can someone here give me any advice.

Posted: Wed Jun 25, 2008 8:17 am Subject:

Do you mean that the attorney told you that you don't have a chance of defending yourself? Did he give you any reasons?

Guest · Posted: Wed Jun 25, 2008 8:34 am Subject:

Yes, he said that the answer that I filed with was not good enough

Posted: Wed Jun 25, 2008 8:56 am Subject:

How old is the debt? What is the date of last activity (DOLA) of this debt? What state do you live in? Did you ever receive written notification of this debt from the JDB that also advised you of your right to dispute this debt?

Demerits to the attorney for, seemingly, not trying to offer you any constructive advice. He sounds like an @$$!

Guest · Posted: Wed Jun 25, 2008 9:11 am Subject:

The debt is old, but I did make payments on it last year. I did get a letter from them, but I never responded, I should have and didn't.

Posted: Wed Jun 25, 2008 9:54 am Subject:

What state do you live in? In some states, making a payment does not extend or reset SOL. Don't give up that easily. There are ways to fight this.

Guest · Posted: Wed Jun 25, 2008 10:00 am Subject:

I'm in nyc, I have the settlement letter, and if I agree, they expect back tomorrow

Posted: Wed Jun 25, 2008 10:49 am Subject:

Yeah, well I expect to win the lottery tomorrow, but I don't see that happening.

I'm going to let NascarDevil help you out further though, he actually just taught me yet another thing I didn't know. Payments not resetting the SOL in some states.

Good to know.

Posted: Wed Jun 25, 2008 11:07 am Subject:

Who did you make the payment to? The OC or the CA? How did you make the payment? Personal Check, Debit or credit card, money order....?

There are two ways in which the statute of limitations may be tolled. One involves part payment of the debt and the other a signed acknowledgment. As to part payment, the statute will be tolled if the creditor demonstrates that it was "payment of a portion of an admitted debt, made and accepted as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a
promise may be inferred to pay the remainder" (Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d 516, 521). As to a written acknowledgment, pursuant to General Obligations Law § 17-101, the statute of limitations will be tolled by a signed written acknowledgment of an existing debt which contains nothing inconsistent with an intention on the part of the debtor to pay it (id.).

http://www.courts.state.ny.us/reporter/slips/12615.htm

Guest · Posted: Wed Jun 25, 2008 11:09 am Subject:

Made a small payment out of fear to the collection agency's attorneys. The oc is out of the picture due to bankruptcy.

Posted: Wed Jun 25, 2008 11:20 am Subject:

Do you mean that the OC filed BK? Because if you filed BK and included the OC, then this CA should not be attempting to collect from you.

Guest · Posted: Wed Jun 25, 2008 11:37 am Subject:

yeah, the oc filed bankruptcy years ago

Posted: Wed Jun 25, 2008 12:44 pm Subject:

Well then, here's my thought.

Make the CA validate this debt in court! I think you can answer the questions on the complaint to the effect that the CA has not given sufficient information to prove the debt is yours.

I'm guessing if the OC filed BK and went out of business, then the JDB has a snowball's chance in hell of proving the debt is yours.

Not sure if you can do that if you did make a payment, though.

Any thoughts from anyone else?

Whatever you do, don't ignore the situation and not go to court. The JDB would get a default judgment against you and it would then be an even bigger headache for you.

Guest · Posted: Wed Jun 25, 2008 12:50 pm Subject:

Ron, I filed my answer already, how do I make them validate? What do I tell the judge when I get there? Because when I filed my answer, I didn't request any discovery, I aksed the clerk about that and she was basically no help and just said "just show up"

Posted: Wed Jun 25, 2008 2:31 pm Subject:

Guest, I am really not that much in the know on this. I've just read of people requesting validation during "discovery." I do think, however, it would have to have been requested when you filed your answers.

I'm going to bump this topic back to the top of the list and hope that someone with more experience than I have can help you.

Posted: Wed Jun 25, 2008 4:57 pm Subject:

Did you, anywhere on the interrog's or discovery questions that you answered, make a statement to the effect: "defendant reserves the right to amend their answers"?

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