[maksl53]

Hello, wondering if perhaps someone could help and advise as to next steps after receiving a civil summons. Yesterday I received the summons, via the new tenant at my previous address. I believe I have 30 days to reply, summons is dated May 27th 2008. Plantiff is Global Acceptance Credit Company, LP, represented by Attorneys Sessoms & Rogers P.A. Attached document says that Capital One sold this account to the plaintiff. I would like to know how to answer this summons.

[Lucy]

Originally Posted by maksl53

Hello, wondering if perhaps someone could help and advise as to next steps after receiving a civil summons. Yesterday I received the summons, via the new tenant at my previous address. I believe I have 30 days to reply, summons is dated May 27th 2008. Plantiff is Global Acceptance Credit Company, LP, represented by Attorneys Sessoms & Rogers P.A. Attached document says that Capital One sold this account to the plaintiff. I would like to know how to answer this summons.

Was the summons mailed to your old address or was it delivered by a deputy and just left with the new tenant? I have a problem with the way the summons was presented, someone can correct me if I am wrong but I would tell you to check how a summons in NC is to be delivered.

How old is the debt? When was your last payment? That could determine how you might answer the summons.

[maksl53]

hi , thanks for replying. I too thought it was strange, but it does say the summons can be mailed - the tenant said when she arrived home the person was waiting for her in a car. Stepped out and asked if she was me - when she replied no, he asked if she knew me or where I was or something. She said I might stop by so I guess that's when he gave her the papers and a card saying he was a Master Deputy.

If this is a debt from Cap One, it would be about 3 1/2 to 4 years old - it was apparently bought recently by Global and it states on the attached document that the sum is outstanding since March 7 2008.

[maksl53]

I read up on the requirements for serving process for civil summons, and for NC it is to deliver: personally, residence, registered or certified mail. I moved and filed a permanent change of address with the USPS prior to the filing, therefore, none of the requirements of service of process were met. Can I use this in my answer, and request this be dismissed? Thanks.

[roybean]

Originally Posted by maksl53

I read up on the requirements for serving process for civil summons, and for NC it is to deliver: personally, residence, registered or certified mail. I moved and filed a permanent change of address with the USPS prior to the filing, therefore, none of the requirements of service of process were met. Can I use this in my answer, and request this be dismissed? Thanks.

As Pro Se'ers we need to note every little detail. Please do note this in your response.

[mtnman1951]

If the DOFD was indeed 3 1/2 to 4 years ago it would be past the SOL for filing suit in NC. It is 3 years for either open or written accounts. I think I have read it is illegal to file suit on a time barred account in NC. If it is, that will be an easy 2 grand if you counter sue.

[Enigma]

Originally Posted by maksl53

I read up on the requirements for serving process for civil summons, and for NC it is to deliver: personally, residence, registered or certified mail. I moved and filed a permanent change of address with the USPS prior to the filing, therefore, none of the requirements of service of process were met. Can I use this in my answer, and request this be dismissed? Thanks.

You need to absorb the local Rules of Civil Procedure for your local court.

I cannot comment on NC RCP, if it were in my court, first I would file a Motion to Dismiss for Improper Service, set it for a hearing and go from there.

Without filing the MTD first you lose the right to file it later. Your court may differ from mine.

If I was up against time, I would first file the MTD, then incorporate it as an Affirmative Defense in my Answer.

The single most impotant thing you can do is READ YOUR RULES!

[maksl53]

Thank you all for your replies. I have tried to read any and all I could find on court rules for my court. It is illegal to file a suit in NC when the Sol is up, and it is 3 years here. To bring you up to date, I received a 'Plaintiff's First Interrogatories' document from the attorney today. Although I did not dispute the service of process (which was probably a bad move, knowing what I know now) - I have successfully filed a motion for extension to file an answer to the summons (granted), filed an answer, and I sent a request to the attorney for production of documents. I know I have waived several of my legitimate defenses - but I used a few of the most utilized. What I received today in reponse to my request was (again) a generic contract, that does not contain my name or a account number, nor any detailed, specific data relating to the account they are suing me for. I do not have statements, cancelled checks or any other proof ( I was a contract programmer, I moved 6 times in one year) - at any rate, I am not an attorney, nor do I have any real legal knowledge except what I have found on the internet. Can you point me in a direction to my next step of responding to the document received today? I would be very grateful. Mandatory arbitration (required in NC) is to be scheduled, but I have received a notice from the Clerk of Court that it was to be scheduled between 8/25 & 9/22/08. Attorney's office requested an extension to respond to my request (for production of documents) until 9/22/08.
In answer to your question, attorney's office states my last payment was in or around 5/25/05 in their latest document.
Complaint was filed 5//27/08. Thanks for your help.

[maksl53]

Thank you all for your replies. I have tried to read any and all I could find on court rules for my court. It is illegal to file a suit in NC when the Sol is up, and it is 3 years here. To bring you up to date, I received a 'Plaintiff's First Interrogatories' document from the attorney today. Although I did not dispute the service of process (which was probably a bad move, knowing what I know now) - I have successfully filed a motion for extension to file an answer to the summons (granted), filed an answer, and I sent a request to the attorney for production of documents. I know I have waived several of my legitimate defenses - but I used a few of the most utilized. What I received today in reponse to my request was (again) a generic contract, that does not contain my name or a account number, nor any detailed, specific data relating to the account they are suing me for. I do not have statements, cancelled checks or any other proof ( I was a contract programmer, I moved 6 times in one year) - at any rate, I am not an attorney, nor do I have any real legal knowledge except what I have found on the internet. Can you point me in a direction to my next step of responding to the document received today? I would be very grateful. Mandatory arbitration (required in NC) is to be scheduled, but I have received a notice from the Clerk of Court that it was to be scheduled between 8/25 & 9/22/08. Attorney's office requested an extension to respond to my request (for production of documents) until 9/22/08.
In answer to your question, attorney's office states my last payment was in or around 5/25/05 in their latest document.
Complaint was filed 5//27/08. Thanks for your help.

[hannah]

Originally Posted by maksl53

In answer to your question, attorney's office states my last payment was in or around 5/25/05 in their latest document.
Complaint was filed 5//27/08. Thanks for your help.

Then they missed filing within stat by 2 days. Sucks to be them.

[jlynn]

Originally Posted by hannah

Sucks to be them.

[hannah]

I need to take a more in depth review of your case. Please post the complaint and your answer. Redact any personal information. Then I will be able to ascertain what your next step should be and how to use their own information against them.

[maksl53]

I will get the complaint & response posted as soon as I can, hopefuly tonight.
Regarding, Sol and the three years, I am a tad confused. I was under the impression from what I read, expiration would be 180 days + 3 years. Is that not correct (this is NC)? If the attorney states the date of last payment was on or about 5/25/05, so does the Sol expire 5/25/08 or is it 11/25/08?
Thanks -

[jlynn]

Are you possibly confusing credit reporting (7+180) with SOL for lawsuit? Or did you read this in NC statutes somewhere?

[hannah]

deleted

[maksl53]

Here is the original complaint filed by the attorney's office:

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
COUNTY OF WAKE DISTRICT COURT DIVISION

The plaintiff, complaining of the defendant, alleges and says as follows:

1. The plaintiff is a limited partnership organized under the laws of Texas with a principle office and place of business in Tarrant County, Texas.
2. The defendant is a resident of Wake County, North Carolina.
3. The defendant entered into a written credit agreement in favor of Capital One Bank, the plaintiff’s predecessor in interest. A copy of said credit agreement is attached hereto and incorporated herein by this reference. Thereafter, Capital One bank sold this account to the plaintiff herein.
4. The defendant is in default under the terms of that credit agreement, in that said defendant has failed to make the payments due thereunder.
5. Pursuant to the terms and provisions of the credit agreement, the defendant is lawfully indebted to the plaintiff in the sum of $1,895.13, together with interest thereon at the legal rate of 8.00% per annum. Said sum has been outstanding since March 7, 2008.
6. The written credit agreement between the parties contains provisions for the payment of attorneys fees in the event of default. The balance outstanding is currently $1,917.56, comprised of the principal, together with interest to date of $22.43.
7. Pursuant to the provisions of G.S. section 6-21.2, the plaintiff hereby gives notice to the defendant that it intends to enforce those provisions of the credit agreement calling for the payment of attorneys fees. The plaintiff hereby further notifies the defendant that said defendant may avoid the imposition of attorneys fees by paying the current outstanding balance of $1,917.56 to the undersigned at the address shown below within five (5) days after the defendant has been served with a copy of the complaint and summons. If the defendant pays said sum to the undersigned within five (5) days after service, the plaintiff will neither seek to enforce those provisions, nor pursue further legal remedies against defendant.

WHEREFORE, the plaintiff prays the Court as follows:
1. That the plaintiff have and recover from the defendant the sum of $1,895.13.
2. That the plaintiff further have and recover from said defendant interest on said sum at the legal rate of 8.00% per annum from and after March 7, 2008 to the date of judgment, and at the rate of 8.00% per annum thereafter until paid.
3. that the plaintiff further have and recover from said defendant its reasonable attorneys fees in the sum of $287.63 which sum is fifteen (15%) percent of $1,917.56, the current balance outstanding, pursuant to G.S. section 6-21.2.
4. That the plaintiff further recover from said defendant all costs of this action.
5. For such other and further relief as the Court may deem just and proper.

This the 30th day of April, 2008.

[maksl53]

here is the answer I filed to the complaint:

I. ANSWER

Comes now, the defendant, xxxx, for herself alone and in answering the allegations of the complaint on file herein, affirms, denies, and alleges as follows:

1. Answering the allegations of Paragraph 1 of the complaint, defendant affirms the statement.

2. Answering the allegations of Paragraph 2 of the complaint, defendant denies the statement.

3. Answering the allegations of Paragraph 3 of the complaint, defendant lacks sufficient knowledge or information about the truth to admit or deny the allegations in the paragraph. Based on this lack of information, defendant denies the statements contained within the paragraph.

4. Answering the allegations of Paragraph 4 of the complaint, defendant lacks sufficient knowledge or information about the truth to admit or deny the allegations in the paragraph. Based on this lack of information, defendant denies the statements contained within the paragraph.

5. Answering the allegations of Paragraph 5 of the complaint, defendant lacks sufficient knowledge or information about the truth to admit or deny the allegations in the paragraph. Based on this lack of information, defendant denies the statements contained within the paragraph.

6. Answering the allegations of Paragraph 6 of the complaint, defendant lacks sufficient knowledge and information about the truth to admit or deny the allegations in the paragraph. Based on this lack of information, defendant denies the statements contained within the paragraph.

7. Answering the allegations of Paragraph 7 of the complaint, defendant lacks sufficient knowledge and information to admit or deny the allegations in the paragraph. Based on this lack of information, defendant denies the statements contained within the paragraph.

II AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

Plaintiff’s claims are barred to the extent that the Plaintiff does not state a claim upon which relief may be granted.


SECOND AFFIRMATIVE DEFENSE

Plaintiff’s claims are barred to the extent that they were not filed within the applicable Statutes of Limitation for the State of North Carolina.

THIRD AFFIRMATIVE DEFENSE

Plaintiff’s action is barred to the extent that the amount claimed to be owed is incorrect.

FORTH AFFIRMATIVE DEFENSE

Plaintiff’s action is barred to the extent that the contract in question, if any, was modified by the original parties, and that plaintiff is barred from recovery on the unmodified original contract, in any, by reason of said modification.

FIFTH AFFIRMATIVE DEFENSE

Plaintiff’s action is barred to the extent that a new contract was substituted in the place of the original contract, if any, and that plaintiff is barred from recovery on the original contract, if any.



WHEREFORE, defendant requests judgment as follows:

That plaintiff takes nothing by the complaint, which will be dismissed with prejudice.

Respectfully submitted and dated this 15th day of July, 2008.

[maksl53]

It very well could be. I don't recall reading this in the NC law. I must have confused the two. Thanks. If that is the case, then shouldn't I just file a motion to dismiss based on the Sol being expired?