Is the Statute of Limitations a Pointless Defense

[indy4192]

INDIANA Well had my day in court today, claimed my CC debt was over 6 years old. So what does the plaintiff attorney say...

"You made one, and just 1 payment in Jan. of 4, which means the 6 years won't occur till this coming Jan."

Since I had no way of proving I didn't, which I didn't, the judge took the word of the plaintiff attorney and found for them. I tried to point out that the last payment to the CC company was in Sept of 2002, which the plaintiff agreed, and no other payment was sent after that and the account was charged off in August of 2003 and why would I make a 1 time only payment in Jan?

So to those trying to prove SOL, keep all your records and hope because from my experience, it is your job to prove you didn't pay because all the plaintiff has to say is "Hey he made this 1 payment" and that is the date they go by.

[aardvarc]

The burden wasn't on you to show that you didn't - the burden was on them (as the plaintiff) to show that you DID make a payment, thus impacting the statute of limitations. It sounds like they made a statement, and you let it stand without challenge. You can't prove a negative - there's no way to show that you DIDN'T pay something - the plaintiff however should have been able to produce SOMETHING to substantiate their claim that a payment was made. Did you ASK them to show the court some form of DOCUMENTATION of the mysterious payment? Did you ask if they could SHOW that payment was made on that date and by what method? You DID know you could ask for that, right? When you act as your own attorney, you've got to know to challenge statements that the plaintiff makes and how to cross examine. Otherwise the court only gets ONE side of the arguement (theirs) and you're sunk.

[indy4192]

I asked them how much was the payment, they said $50, I asked in what form they said money order. I asked why would I make just one payment, almost 1.5 years since my last? I told the judge that I didn't make payments to collection agencies unless it was due to the court. She asked me if I ever planned to pay off the debt. I said I didn't know. She then said that since I can't prove I didn't she would reduce the amount owed and let me keep some of the monies that had been frozen in my account if I agreed to settle, or she could let the original decision stand. The original decission was a default judgement and I filed a motion to have it set aside since I was not properly notified which she granted and thus the hearing today.

The only up side is that I will be filing bankruptcy in a few weeks so while I "agreed" to start making payments with this reduced amount set by the judge, outside of the monies they get from my checking account, they will never get another dime. But I didn't tell the judge or the plaintiff that.

[jk]

The only up side is that I will be filing bankruptcy in a few weeks so while I "agreed" to start making payments with this reduced amount set by the judge, outside of the monies they get from my checking account, they will never get another dime. But I didn't tell the judge or the plaintiff that.

make sure you talk to your BK attorney about the judgment. There are ways the judgment can remain intact through a BK.

as to the proof; you apparently let it stand with simply their testimony. You needed to attack their testimony as it is not evidence. They had to prove you made the payment, not merely testify to it.

SoL is a viable defense when utilized properly.

[indy4192]

I asked and the judge didn't seem impressed. She took the word of the plaintiff and told me so, saying "I" had to prove I didn't pay it. As for the BK, doing it myself, as far as I know everything gets discharged, in fact I overheard one of the attorneys saying he hoped I didn't file BK after this.

[jk]

=indy4192;341591]I asked and the judge didn't seem impressed.

presumably you simply did not do it properly. If this was small claims, the rules are lax but there are still rules.

If you believe you lost due to a mistake of law, you can appeal.

She took the word of the plaintiff and told me so, saying "I" had to prove I didn't pay it.

well, she is wrong. Obviously it is impossible to prove you didn't pay. That is why the burden is on the plaintiff at this point to prove you did.

As for the BK, doing it myself, as far as I know everything gets discharged, in fact I overheard one of the attorneys saying he hoped I didn't file BK after this.

best of luck but apparently you are in for a surprise here as well. Sounds like you have a lot of studying to do.

[indy4192]

As far as I have gotten, judgements can be included in bankruptcy. Like I said the attorney even said that to another person that as soon as she files the judgement will go away, and this was the plaintiff attorney telling her this.

As for the SOL, I informed the judge that given when the "payment" was to have happened, I would not have made any payment. That once a debt goes to a collection agency, and I have had a few, I never communicate with them or pay them anything. The only two exceptions were ones that went to small claims court. She just didn't believe me, so I just feel that if you get a judge who doesn't believe in that law, they will side with the plaintiff.

Plus I can't appeal, I agreed to her ruling. She reduced the amount owed by almost $600 and freed up my monies in my bank account only giving half to the collection agency.

[jk]

Plus I can't appeal, I agreed to her ruling. She reduced the amount owed by almost $600 and freed up my monies in my bank account only giving half to the collection agency.

then you stipulated to a finding of liability for a reduced judgment. Oh well that's the end of that.

What you needed to do is demand the plaintiff provide proof of the payment. If they could not provide such support, all they had was their statement, which is not evidence and without such evidence, they could not prevail.

as to the judgments and BK. I didn't say judgments survived. I said you are in for a surprise and need to study.

I stand behind that statement, still.

[indy4192]

Why do you think there would be a surprise? The debt is for a credit card. I guess they could "contest" it, but the odds are very small they would win. What kind of surprise do you think I should look out for?

He had "proof", he showed the judge a statement from the collection agency saying a payment was recieved, the amount and the date. I stated I never pay collection agencies.

[jk]

=indy4192;341781]Why do you think there would be a surprise? The debt is for a credit card. I guess they could "contest" it, but the odds are very small they would win. What kind of surprise do you think I should look out for?

just educate yourself. You cannot learn too much about such an action.

He had "proof", he showed the judge a statement from the collection agency saying a payment was recieved, the amount and the date. I stated I never pay collection agencies.

the point is moot but a statement is not proof nor evidence. Based on your understanding, all a creditor has to do is say they got a payment from the debtor. If that was all it took, a creditor would never have to worry about the SoL. Many of them would have no problem lying about receiving a payment if it meant they would get a judgment out of the deal.

Do you think the creditor or the courts would simply take your word that you made a payment by money order on some date in the past and therefore reduce the balance that much, even if the CA denied ever getting such a payment? I don't think so.