[suedinaz]

Hi,
I'm not sure where to post this, but I could use some friendly direction and "advice". I was served this week with a complaint and summons from an attorney on behalf of an "assignee" that is working a very old account. After doing some research, the attorney owns the debt collection firm. I have not been able to find evidence of licensing on the az banking site that holds this info- so I am unsure if they are licensed (the attorney NOR the CA). Anyway, I have verified that the SOL has expired on this "alleged" debt, regardless of the type. I am in AZ and for written it is 6 years. I believe this was a written contract, but even if it was classified differently- the SOL is expired. When I received the complaint/summons, the only other thing attached was a collection notice. No copy of contract, no itemized statement, nothing. I fired off a dispute letter and mentioned in the letter that the SOL has expired and to stop wasting time and drop the case.... not verbatim obviously. I sent the letter CMRRR and the letter was unable to be delivered yet...unsure if it will be or not. I plan on faxing a copy of the letter as well as sending it regular mail in hopes they get SOMETHING. Anyway. I could really use some advice. I am hoping that they will fold and drop the suit since I have demonstrated knowledge of the statutes, but obviously if not I will have to file my answer....or motion to dismiss, or answer + countersuit. I guess my questions are- do I have anything to countersue on? I am not sure if I have provided sufficient information here, so please feel free to ask any questions needed to assist. I really appreciate the help.

[Hedwig]

I moved your post to a new thread here in the credit repair area, where it will get more visibility.

[roybean]

Originally Posted by suedinaz

Hi,
I'm not sure where to post this, but I could use some friendly direction and "advice". I was served this week with a complaint and summons from an attorney on behalf of an "assignee" that is working a very old account. After doing some research, the attorney owns the debt collection firm. I have not been able to find evidence of licensing on the az banking site that holds this info- so I am unsure if they are licensed (the attorney NOR the CA). Anyway, I have verified that the SOL has expired on this "alleged" debt, regardless of the type. I am in AZ and for written it is 6 years. I believe this was a written contract, but even if it was classified differently- the SOL is expired. When I received the complaint/summons, the only other thing attached was a collection notice. No copy of contract, no itemized statement, nothing. I fired off a dispute letter and mentioned in the letter that the SOL has expired and to stop wasting time and drop the case.... not verbatim obviously. I sent the letter CMRRR and the letter was unable to be delivered yet...unsure if it will be or not. I plan on faxing a copy of the letter as well as sending it regular mail in hopes they get SOMETHING. Anyway. I could really use some advice. I am hoping that they will fold and drop the suit since I have demonstrated knowledge of the statutes, but obviously if not I will have to file my answer....or motion to dismiss, or answer + countersuit. I guess my questions are- do I have anything to countersue on? I am not sure if I have provided sufficient information here, so please feel free to ask any questions needed to assist. I really appreciate the help.

If you are sure that the debt is SOL, your response to the complaint should be motion to dismiss on the grounds that the claim/suit is invalid. Are you being sued in state of federal court?

[spinn]

Isnt it an FDCPA violation to sue on OOS debt? And shouldnt sued counter sue for FDCPA violations?

It is a very big incovenience for a law firm to sue a consumer for a debt they can not sue on............

[Hedwig]

It isn't an FDCPA to sue, but in some states it's against state law. SOL is an affirmative defense, but the poster will have to go to court and assert the defense.

[roybean]

Originally Posted by Hedwig

It isn't an FDCPA to sue, but in some states it's against state law. SOL is an affirmative defense, but the poster will have to go to court and assert the defense.

That's right.

[Pale Rider]

Originally Posted by spinn

Isnt it an FDCPA violation to sue on OOS debt? And shouldnt sued counter sue for FDCPA violations?

At least one court says yes.

Kimber v. Federal Financial Corporation

The court agrees with Kimber that a debt collector's filing of a lawsuit on a debt that appears to be time-barred, without the debt collector having first determined after [**19] a reasonable inquiry that that limitations period has been or should be tolled, is an unfair and unconscionable means of collecting the debt. As previously demonstrated, time-barred lawsuits are, absent tolling, unjust and unfair as a matter of public policy, and this is no less true in the consumer context. As with any defendant sued on a stale claim, the passage of time not only dulls the consumer's memory of the circumstances and validity of the debt, but heightens the probability that she will no longer have personal records detailing the status of the debt. Indeed, the unfairness of such conduct is particularly clear in the consumer context where courts have imposed a heightened standard of care -- that sufficient to protect the least sophisticated consumer. Because few unsophisticated consumers would be aware that a statute of limitations could be used to defend against lawsuits based on stale debts, such consumers would unwittingly acquiesce to such lawsuits. And, even if the consumer realizes that she can use time as a defense, she will more than likely still give in rather than fight the lawsuit because she must still expend energy and resources and subject herself to the [**20] embarrassment of going into court to present the defense; this is particularly true in light of the costs of attorneys today.

[Hedwig]

Good information.

Roybean, do we have that case in the caselaw forum?

[roybean]

Not sure....let me see...brb

[suedinaz]

Wow, thanks everyone for chiming in!
I am being sued in I state court- it is a justice court near where I live. I am pretty sure the SOL is expired, but if someone could reassure me. I have a copy of a credit report from 2 years ago that shows the first delinquency of 30 days late as of 6-2000, from which it never recovered and for some reason it does not show it being charged off until 2-2001. It shows it as an installment account which I presume would fall under written contract. Some other dates shown and I am confused about are "Date of Status- 10/2002" and "Last Reported 02/2005". Do these dates have any bearing on SOL? Thanks again for your help.

[roybean]

Justice court is small claims and I wouldn't be messing around in state court. They will probably claim that they own the debt which is a junk debt buyer (JDB).

[Pale Rider]

Originally Posted by Hedwig

Good information.

Roybean, do we have that case in the caselaw forum?

Originally Posted by roybean

Not sure....let me see...brb

I have a copy of the decision. I'll get with you later to post it.

[rubyruby27]

Look at the OC's TL that will be more accurate as to the last payment if you don't know, just because it is listed as installment doesn't mean it was, only you would know if it was installment loan. I don't know AZ laws on SoL, but if it is installment and they have that it would be a written contract and that SoL would apply to this case.

based on the charged off date you are showing the acct went delinquent 8/2000

Do a MTD as roy suggest with prejudice and then ask for counterclaims, it is an FDCPA violation to file on a time barred debt.

For legal action that can't be taken. I don't remember the statute off the top of my head.

Read you state RCP's as you may have to file answers, defenses and counterclaims at the same time , just incase your MTD ids denied--again I don't know your rules so read them.

[roybean]

Originally Posted by Pale Rider

I have a copy of the decision. I'll get with you later to post it.

Thx PR

[Pale Rider]

Originally Posted by suedinaz

Wow, thanks everyone for chiming in!
I am being sued in I state court- it is a justice court near where I live. I am pretty sure the SOL is expired, but if someone could reassure me. I have a copy of a credit report from 2 years ago that shows the first delinquency of 30 days late as of 6-2000, from which it never recovered and for some reason it does not show it being charged off until 2-2001. It shows it as an installment account which I presume would fall under written contract. Some other dates shown and I am confused about are "Date of Status- 10/2002" and "Last Reported 02/2005". Do these dates have any bearing on SOL? Thanks again for your help.

Date of Status is probably the last time they changed the status of the account when they reported.

Last Reported should be self explanatory.

In most cases, none of those dates you listed will change SOL. But, I am not familiar with AZ statutes, and you should contact a local attorney to be sure. SOL usually starts at the breach of the contract, or when the cause of action accrues.

[suedinaz]

Originally Posted by roybean

Justice court is small claims and I wouldn't be messing around in state court. They will probably claim that they own the debt which is a junk debt buyer (JDB).

Hi Roybean- They have it filed as a civil suit- is that the same as small claims? Sorry for sounding kinda dumb here, but what is it you mean by "I wouldn't be messing around in state court"? Is this something that belongs in Federal? Thanks

[roybean]

Originally Posted by suedinaz

Hi Roybean- They have it filed as a civil suit- is that the same as small claims? Sorry for sounding kinda dumb here, but what is it you mean by "I wouldn't be messing around in state court"? Is this something that belongs in Federal? Thanks

Don't worry...everyone has to learn. It doesn't matter if it is filed under a civil suit-justice court is small claims and since these are federal laws, a lot of state courts are not as versed in federal laws as they are in disrict court. What's more, since you are inexperienced and if this is a JDB, they will claim that they own the debt and therefore not bound by debt collector violations of federal laws.

[suedinaz]

Originally Posted by rubyruby27

Look at the OC's TL that will be more accurate as to the last payment if you don't know, just because it is listed as installment doesn't mean it was, only you would know if it was installment loan. I don't know AZ laws on SoL, but if it is installment and they have that it would be a written contract and that SoL would apply to this case.

based on the charged off date you are showing the acct went delinquent 8/2000

Do a MTD as roy suggest with prejudice and then ask for counterclaims, it is an FDCPA violation to file on a time barred debt.

For legal action that can't be taken. I don't remember the statute off the top of my head.

Read you state RCP's as you may have to file answers, defenses and counterclaims at the same time , just incase your MTD ids denied--again I don't know your rules so read them.

Hi Ruby-
It was the OC's TL that I was getting the dates from. It clearly shows the 6/2000 date as the first 30 day late, so that is why I am confused as to why they didn't charge off until 8 months later...isn't there some law that says for reporting purposes it has to be 6 months for a charge off? I guess it really doesn't matter since it would still be more than the 6 years (which is for written contracts- all others are 3-5). The "installment" title sounds correct to me, if I am remembering correctly. According to what I have read for my state- I do have to file counterclaims at the time of the answer. I guess I was hoping that the JDB would drop the case themselves to avoid me doing this. Although I could probably make some money on this in countersuits- I would really just like for it to go away...but if they want to play harball- I can see about a lawyer that will work on contingency. Sigh- I know I have them on the SOL thing- but it is still stressful.