[MusicJenn3]

My question involves collection proceedings in the State of: Texas

I have quite a pickle. I was served papers by an officer to my home around 6:30 in the morning on September 2, 2008. I am being sued by a debt collector for an old credit card debt- which has been sold two times. Upon doing some research in my file cabinet, I came across an old checkbook. In my checkbook, I came across 3 checks-all written in the same ink (which happened to be a marker, so not your typical pen ink). I have determined that the checks were pay-by-phone checks, so I never had to send them in. The first payment was taken and made on 7/9/04 in the amount of $25, the second check was written for 7/23/04, in the amount of $500, and the third payment, written on 8/20/04 in the amount of $300. Here is where it gets complicated!

Under Texas Law, the Statue of Limitations for credit card debt, is 4 years. I ordered a copy of my bank statements. Upon doing some research from that, I determined that my check for $25 did clear on 07/12/04 (written 7/9/04). The second check, instead of the amount being $500, was keyed to be $100 (by the original company, not a mistake I made) and came out of my account on 8/12/04 (written 7/23/04), and the LAST check, written in the amount of $300 NEVER processed-as in, the original company NEVER posted the check-it is completely MIA! Which means that the previous check written on 7/23/04is the one in question here. Is this considered outside of the statue of limitations, because it didn't clear my account until 8/12/04 and the lawsuit was filed on 8/8/08. Everything I have read states "when payment was made". I need something clearer then that. If we are going on when the payment was TAKEN then that would be over the phone 7/23/04. If we are going by when it came out of MY bank account, then that was 8/12/04 and the suing party is just inside the SOL by 4 days and is within their rights to sue me. So, what constitutes "payment" here?


I am working by myself to try to get this resolved. I DID file an answer, but I believe I didn't elaborate near enough in my answer because I didn't speak anything about the "evidence" I have nor of it possibly being outside the SOL because I'm not sure it is! What should I do? I answered a month ago, can I add any other information? How do I do that? And how long does the other party have to respond with their evidence? AND should I try to get the judge to throw out the last 2 payments because of the one being a different amount, and the other never processing?

Sorry this is long, as you can tell, everything is sooo borderline, I simply do NOT know what to do or how to handle this! I spoke with a lawyer-before I had all of this evidence, furthermore, using one is just too expensive for me right now.

[LawResearcherMissy]

"When payment is made" generally means when the payment was given over.

It's going to be a squeaker, but you may be able to argue that it's outside the SOL.

[jk]

here is an excerpt from Texas statutes:

(c) A person must bring suit against his partner for a settlement of partnership accounts, and must bring an action on an open or stated account, or on a mutual and current account concerning the trade of merchandise between merchants or their agents or factors, not later than four years after the day that the cause of action accrues. For purposes of this subsection, the cause of action accrues on the day that the dealings in which the parties were interested together cease.

By that definition, I would suggest that at least when the payment was actually transferred to the creditor would be the date of acrual. If you sent a subsequent check, you apparently had dealing more recently than that date even so I would say they filed within the SoL.

[MusicJenn3]

here is an excerpt from Texas statutes:

By that definition, I would suggest that at least when the payment was actually transferred to the creditor would be the date of acrual. If you sent a subsequent check, you apparently had dealing more recently than that date even so I would say they filed within the SoL.

Yes, but that last check too was a "Pay by phone" and they never processed that check-as in, no where in my statements over the next 3 month period does that check ever show up-not even as a "bounce". So MY thinking is that the previous check is the one in question. NOT to mention, that check was $400 LESS then it was supossed to be!

Can I try to throw that out as well? Because on my bank statements, it doesn't show where/who the checks went to because these were pay by phone checks. The bank never gets a copy of them, therefore, all that shows up on my statements are the check numbers with the amounts. I would have no way of knowing who the checks went to other then the fact that I have the checkbook. So, the last payment myself and the other party can agree on is that first payment of $25. Can I argue that I either 1) know nothing of the second check, because of the vast difference in amount and/or 2) though the check numbers line up on the statements, can I argue I didn't authorize that payment (because the payments are vastly different)?

The account was supposed to have been paid off! I had NO idea at the time what happened! I was working 2 jobs at the time, my husband works full time, and I was going through morning-all day sickness from pregnancy. So, you can imagine I did NOT keep up with the fact that they "sold me short" and this account indeed did NOT get paid as it was supposed to have. Which to ME is there fault as well and I should have followed up, and didn't. They keyed in the incorrect amount, AND didn't even POST the last check.

Is there anything in there I can argue to the judge?

THANKS to ALL for your replies! They've been helpful! I also need my questions answered from the bottom of my first posting-as to what to do to add to my answer. I HAVE evidence-even if in question, and so do or should I add to my answer-or can I even do that?! If I can, HOW do I do that? THANKS SO MUCH!

[jk]

to start, your "dealings" lasted until at least the creditor recieved the money. That means they were still within the statute of limitations. Now, since all this was pay by phone, you apparently spoke with somebody by phone to give them authorization. If they have any record of that call, your dealings were until that time. Most definately within the SoL.

so, unless you are going to claim the second check wasn't athorized by you, I think you're had.

As to them being at fault for not taking action sooner; well, that is what the SoL is all about and as long as they are within the SoL, they are taking action to collect their money.

You don't present evidence in your answer. You state your defense (SoL, not my debt, lack of jurisdiction, etc.) the evidence is what you present in court to support the stated defense.


as to being able to add the SoL to your defense; not familiar enough with this to be able to answer. Some courts may allow it, some not. Since you didn;t include it, you may have lost the chance to use it.

[MusicJenn3]

to start, your "dealings" lasted until at least the creditor recieved the money. That means they were still within the statute of limitations. Now, since all this was pay by phone, you apparently spoke with somebody by phone to give them authorization. If they have any record of that call, your dealings were until that time. Most definately within the SoL.

so, unless you are going to claim the second check wasn't athorized by you, I think you're had.

As to them being at fault for not taking action sooner; well, that is what the SoL is all about and as long as they are within the SoL, they are taking action to collect their money.

You don't present evidence in your answer. You state your defense (SoL, not my debt, lack of jurisdiction, etc.) the evidence is what you present in court to support the stated defense.


as to being able to add the SoL to your defense; not familiar enough with this to be able to answer. Some courts may allow it, some not. Since you didn;t include it, you may have lost the chance to use it.

Thank you so very much for your help! I see now that trying to request and have the judge find in favor for it being outside the SOL would not be likely. For as strongly as I felt my argument was, they have a stronger case-unless of course they have very little evidence.

Speaking of evidence, how will I know what evidence they have against me?

THANK YOU for your help!

Also, I noticed on my credit report today that there's a new attorney listed on my report in place of the original attorney. What does that mean? The attorney on the report is no longer listed, but has this other attorney's name in place of the original attorney's, BUT it still has the same date?! (from 3 months ago!) Can they do that and why is there another attorney's name??

[jk]

just becauae you (or at least I) believe the SoL is not a defense does not mean you should not raise it. It may be I am wrong or the judge may simply see things differently.
Like I said before, it may be too late to raise the SoL defense but I would be prepared to anyway just in case.

Speaking of evidence, how will I know what evidence they have against me?

well, it will show up in court. You can access their evidence prior to court as well. Discovery allows you to seek such information but there is a proper procedure to do this.

Also, I noticed on my credit report today that there's a new attorney listed on my report in place of the original attorney.

Not sure. Maybe the simply changed attorneys for some reason.

[MusicJenn3]

just becauae you (or at least I) believe the SoL is not a defense does not mean you should not raise it. It may be I am wrong or the judge may simply see things differently.
Like I said before, it may be too late to raise the SoL defense but I would be prepared to anyway just in case.

well, it will show up in court. You can access their evidence prior to court as well. Discovery allows you to seek such information but there is a proper procedure to do this.

Not sure. Maybe the simply changed attorneys for some reason.

That's the part that concerns me. They may have changed attorney's because they saw I filed an "answer". They see I'm ready to put up a fight and decided to get another, maybe more seasoned, attorney on my case.

[jk]

well, any attorney has more courtroom time than I but if I was getting sued, I would have no choice but to fight, well seasoned attorney or not. If I did not fight, my goose would be cooked before even getting to court.

[MusicJenn3]

well, any attorney has more courtroom time than I but if I was getting sued, I would have no choice but to fight, well seasoned attorney or not. If I did not fight, my goose would be cooked before even getting to court.

I'm being sued for a total of $5000. I sincerely hope I get off better then that! I have a medicial condition that prevents me from working, I have NOTHING in my name-no house, no vehicles in my name, nothing. Not sure what they think they will be getting out of me! I don't even get disability!

How do I go about filing for a Discovery?

Thanks for all of your help!