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Received a summons, last payment I can remember paying is different than what my credit report says. I want to use the defense that this is past the SOL, but how can I do that when the JDB and the credit reports all say that my last payment was within the SOL. I don't have proof of my last payment, but I know for sure it was more than 6 years ago, BTW, I live in North Dakota.




Sure; Although I am not licensed to practice law in North Dakota and have no knowledge of ND law other than a quick review online. This same basic procedure would probably work in similar cases in most other states as well.

First, you have 20 days from the date of service within which to file a formal response, called an "Answer." You should raise your state's Statute of Limitations in your defense. The statute generally starts to run from the date of your last payment on the debt. You would say something like "This claim is barred pursuant to (insert state) (insert a citation to the law which sets forth the SOL). If the party suing you is any one other than the original creditor, I would also raise some fdcpa defenses or even a counterclaim as the FDCPA prohibits third party debt collectors from suing on a legally unenforceable debt.

Then, depending on whether you are being sued in circuit court or small claims, the rules generally provide for you to issue a Request for Production to whoever is suing you so that you can get copies of their records. This is called the "discovery" process. If the records prove that the debt is outside the SOL, you win.

You could also try the standard debt verification letter.

PM me for more details.

Sub: #11 posted on Thu, 11/13/2008 - 08:48

floridaconsumerlaw floridaconsumerlaw

(Posts: 7 | Credits: )

But what do you do if you believe they have falsified their 'records' and you have no way to prove it? The CA we are dealing with is claiming that payments were made and are reporting a lower original balance to the CRA's (not the balance they would be sueing for, which is much higher, of course) than what the OC charged-off. What 'proof' are they required to provide in court? I'm thinking they are doing this in order to re-age the SOL. (MI- 6yrs.)

Sub: #12 posted on Thu, 11/13/2008 - 09:16

dutchtuff dutchtuff

(Posts: 62 | Credits: )

what kind of debt is it? What form of payment do they claim that you made? What court are you in, circuit or small claims? When did the account first go delinquent? Is it listed as a chargeoff on your credit reports?

Sub: #13 posted on Thu, 11/13/2008 - 09:37

floridaconsumerlaw floridaconsumerlaw

(Posts: 7 | Credits: )

Bank ABC, CC debt, DOFD- January 2000,
Charged off July 2002, Amount: 14000, dropped from reports December 2007

Bank XYZ (acquired all Bank ABC's accounts? in 2003?)
Charged off/sold December 2005, Amount: 14000

CA, via a MI attorney, has sent three copies of a consent judgment to be signed, filed in circuit court September 29, 2008. (Not gonna sign!)

Latest CR Statement from CA (from October 13, 2008): account previously disputed-now resolved
Original Balance:11500 Recent Balance: 20,000
HUH???

They have not disclosed what type of payment was made. I have sent them a letter CMRRR requesting validation, limited C&D, and stated the account is outside the SOL. All I got back was a simple verification.

Sub: #14 posted on Thu, 11/13/2008 - 15:47

dutchtuff dutchtuff

(Posts: 62 | Credits: )

Which brings up another question: Can I take any action to get rid of the consent judgment sitting in court? A motion to vacate?, since I continue to dispute? Or not worry about it since they would have to serve a summons, anyway? It's just a little unsettling to have it sitting in court for 91 days not knowing what they're going to do next.

Sub: #15 posted on Thu, 11/13/2008 - 20:02

dutchtuff dutchtuff

(Posts: 62 | Credits: )

They won't be able to fake a copy of the actual payment they claim you made..they would have to show a copy of the check, or moneyorder, or bank transaction.

Sub: #16 posted on Thu, 11/13/2008 - 20:55

goldenbast goldenbast
Moderators Cum Industry Expert
(Posts: 2885 | Credits: )

Thanks so much...I was wondering about that. They are claiming these payments were made during a time when my husband (we weren't married yet) was pretty much down and out..got laid off, his car was repo'd and didn't even have a bank acct. He paid what bills he could with money orders and even went to the bank to try and look up his past money order records, just in case he forgot or something...they couldn't find a thing! And you know what I just realized? Our small town bank that he used to get his money orders from is now the big bank that sold the account to the CA!!!

Sub: #17 posted on Thu, 11/13/2008 - 23:59

dutchtuff dutchtuff

(Posts: 62 | Credits: )


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