Need Advice about SOL

Date: Sat, 02/27/2010 - 14:46

Submitted by anonymous
on Sat, 02/27/2010 - 14:46

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Total Replies: 2

I had a collection agency attempt to get a judgment against me for a past debt. I was served the summons, answered the summons, etc. I did everything I was supposed to do. In the affirmative defenses section in the summons answer, I made note that the SOL had expired on the debt. Needless to say, the CA continued their case against me and overlooked that fact. Fortunately for me, Mann Bracken was representing the CA so the case was dismissed. However it was dismissed without prejudice, so there'a s chance the CA can attempt to collect again.

My question is since the SOL has in fact expired, can I file a motion to dismiss WITH prejudice so I won't have to go through this process again? Wasn't it illegal for them to attempt to collect a debt after the SOL had expired anyway? There is no question that the SOL has expired. The summons was filed in June 2009 and the last payment made in March 2006. In NC the SOL is 3 years.

Thanks in advance for your help!

I think you had to motion to dismiss with prejudice yourself. Y

I think you had to motion to dismiss with prejudice yourself. You can sue them because it is a violation to take action they could not legally take (suing on a time-barred debt.)

Still, you should be careful with this because if a case is dismissed due to it being time barred, a 1099c could be issued for it and you would end up paying taxes on it. It is always best to nail them in discovery and get it dismissed due to lack of evidence!

lrhall41

Submitted by goldenbast on Sat, 02/27/2010 - 15:37

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With all respect to goldenbast, it is not a violation. They CAN

With all respect to goldenbast, it is not a violation. They CAN sue you for a time-barred debt. Many CA's do this--they file a lawsuit on a time barred debt, and then try to get around the need to have you served with a summons. the SOL ONLY becomes a point if you invoke it in your affirmative defenses.

To the OP, I would consider filing an appeal on the decision...I would state in the appeal that the alleged debt, according to the dates brought forth by the plaintiff in the first case, has passed the applicable statute of limitations, and as such, the court should have had the obligation to dismiss with prejudice. Thats how I would state it, because there is nothing the plaintiff can legally do to counteract a properly-invoked and truthful defense that SOL has expired. Thats the entire basis for the SOL existing in the first place. Also, it is not illegal for them to try to collect after SOL is expired--the SOL only affects what legal action can be taken. Once SOL has passed, as the theory goes, then all that should be needed to halt such a lawsuit in its tracks is for the defendant to state in their answer the affirmative defense that SOL has indeed expired.....at that point the case should be closed. It is only when there is not a clear-cut way to prove the SOL expiration that there should be any further consideration taken.

lrhall41

Submitted by skydivr7673 on Sun, 02/28/2010 - 19:55

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