summons and SOL

When was the date of your last payment?

It was so long ago, I cannot remember. I didn't keep any records (I know bad me). I would have to pull bank statements from the bank. But that is going to be costly going back 6 years. Any ideas? Anyone?

I thought the credit report would show it was out of statue, guess it doesn't work that way. Ugh :-(

From what you've posted, it would appear the default was in 2004 - so, depending on the month that you defaulted, it may or may not be within sol. You need to find out when your last payment was and when your first "missed" payment was due. It will be the first "missed" payment that will begin the sol clock.

Whatever you do, answer the summons within the time allowed and show up for court or they will get a default judgment.

Be sure to include with your answer, your affirmative defenses. Don't admit to anything in your answer - except if they state where you live, etc. For the other parts, deny by stating, "Defendant has no knowledge of the alleged obligation and so cannot affirm nor deny the statements made by plaintiff in paragraph 2" (and then continue the same lingo and change it to paragraph 3, etc.)

Also, did they supply any evidence? If so, it might be something that you can file a motion to strike as heresay. Post back and let us know.

Thank you, I am waiting to get the two other credit reports by mail. I hope I get them on time, Experian does not have the correct date which I am disputing with them. They have a date like 2/2009 which totally does not make sence because they had already sold it to the JDB.

I sent my answer in with affirmative defences. I denied and asked for strict proof regarding the complaint. In the affirmative defences I did mention that this debt is "time-barred" out of the statue of limitations for CT.

There was nothing submitted with the summons other than the complaint, a statement of amount in demand, and what the plaintiff claims for relief.

Now it just seems to be the waiting game. In the meantime I am doing all the research I can to find when I made the last payment. I know a negative item can only stay on your report for 7 years, this item is set to drop off 7/2011. I was served 8/2010. I seems to me that it is out of statue just because of that.

Thank you all again. Any feedback does help!!! :-)

At least this will give you an "area" of time to look for the exact date. If it is to go off your records on 7/2011, then the default would have been in 2004 - meaning that sometime in 2010, it would be time-barred. If they filed in 8/2010, you'll need to see if your default happened in 2004 "before" the date now 6 years later they have filed. And it doesn't go by when you were served. Check on the summons and get the date they filed the suit. That's the date you need. For instance (and this is just an example date) if they filed the suit on 5/15/2010 - then find your 2004 default date. Anytime before 5/15/2004 will make it time barred. Often times it may be months before you actually are served, so don't use the date you were served! Always check the earlier date of filing! Hope that helps!

You can't go precisely by their drop off date of July. Sometimes, the month is correct and sometimes it may vary a tad. But, I'd get my bank statements at least for the first half of the year for 2004, if not the whole year and you'll probably find where you were making your payments and then when it stopped.

Thanks so much again. I went onto the CT Judicial website. So far they have not filed the suit with the clerks office. No docket number, nothing. My return date is Sept 14th. according to the summons the marshall served. So I take it they have until the return date as well to file the suit. I also called the clerks office and she said nothing has been filed yet.

I will take your advise and search my bank records from 2004. Hopefully I find something.

Thank you again....you have helped me so much :-)

how can you be served it nothing has been filed?

good question SOAPLADY. I always thought that it had to go to the court than it gets served. I asked the Courts Clerk about this and she told me that as long as they have it in to them by the Return Date. I suppose. I am going to go check the Court Rules in my state. To actually see what the process is. I will let you know.

Hmmm, I wonder if this was a scare tactic on thier part? a threat? I am so frustrated right now with this whole thing!!!

Here is the procedure:

CT Rules of Civil Procedure
Sec. 52-46a - Return of Process

Process in Civil actions returnable to the Supreme Court shall be returned to its clerk at least 20 day before the return day, and if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return date.

My return date again is September 14, 2010. Another waiting game :-)

[SIZE=3]It seems to me that it should be their burden to prove when you made your last payment not your burden. I see nothing wrong with verifying through your bank records which will prove in your mind when you made the last payment but payments can be made by many methods and from different bank accounts; therefore, that will only prove you didn???t make a payment from that particular account. It will not prove that you did not make any payment though. They are required to show when you made payments and from what account by supplying you with all the statements that show the account history and apply to the credit account in question. [/SIZE]

I do agree with you. The only question that I have is if I claimed in my affirmative defense that this debt is time barred out of statue. Does it now become my burden to prove, since I brought the subject into play?

If you paid by check and can have access to those records, even though the burden of proof is on them to prove the payments - you need those in your possession as your defense against them! They could have the wrong date and you'll need to know as soon as possible how you are going to be able to make your defense. You don't need to tell them anything at this point. But, you'll know if they are telling the truth and what your strategy can be.

On your last question - since you brought the time-barred into play, they have to prove it is "not" time barred. That's when you have to have your proof on hand in case they give a wrong date to have it within sol, you can pull out your information and prove it is beyond sol.

something still doesnt sit right with me about this...

You need to call the court clerks office where this is being done. Call them and ask to verify--tell them that you have received a summons and that you want to make sure that it is real. The case should already be on their record, because the complaint would have already been received before a summons could be generated.

Also, is this being held in your county? If not, then they filed in the wrong place and you will have to inform the court that this is improper venue.

But as far as the dates go, when you call the clerk, find out the date that the complaint was filed with the court--that date is the one you need to reference when it comes to the SOL being expired. You may already have the answer on this one within your credit report--you said that the auto loan was listed under the original creditor on your report. What is the date of delinquency that they listed? They are required to report the date of first delinquency--they might refer to it as "date of major delinquency. What did citifinancial put on there?

Is there also a charge-off date? If so, what is that?

Chances are quite good that this is past the statute. Once you state that
SOL has past, they are required to prove that it has not. If they continue to claim that a $661 payment was made, demand the date of the payment, as well as written documentation of it. If they cannot produce any, you need to file your own suit against them for using deceptive practices while trying to collect a debt--FDCPA violation.

Sorry it took so long to respond back.

I studied the court rules and statues. In CT from what I understand the Plaintiff or the Attorney for the Plaintiff fills out the summons and attaches a complaint then hands it off to a marshal for service. Once the paperwork has been served than the Marshal returns it back to the originator (return of service). The Plaintiff/and or Attorney then files it with the court clerk on or before 2 days after the Return Date. That sounds to me like a "hip pocket service."

Anyway, I am playing the waiting game now as for nothing will happen until after the Return date. In the meantime I am preparing for discovery for a production of documents. This seems to be keeping me very busy :-)

Thank you again to everyone with thier input, it really helped me a lot!!!!