Answering A Lawsuit Over Old Credit Card Debt
I live in Alabama. The SOL on credit card accts. is 3 years. I received a civil summons that I am being sued (3900.00) by the CA. This is a slug outfit called portfolio Recovery Assoc. The DOLA to the original creditor on my CR is 4/2004. Even that is not correct but stll past the SOL. The CA reports a 'recent' payment to them but they do not list a date. I have not made any payments to these people. I cannot afford to hire a lawyer and am asking for any help.
1. On the summons they claim that I owe on a "account stated". I assume that that gives them a longer SOL. Do I address that by saying in my answer someting like..."I deny that there is an account stated. It is an open account and the 3 year statute of limitations has run out." Will this be a sufficient answer?
2. Is there any way that the CA can restart the 3 year clock?
Just a side note, I have contacted the the Alabama Attorney General's office and cant get past the person answering the phone. I simply told her that I wanted to find out the SOL on credit cards. She told that there is "no SOL and that the law changes from situation to situation." And that is a quote.
Any help will be much appreciated.
Re: Answering A Lawsuit Over Old Credit Card Debt
More & more states & courts are starting to consider credit cards as written contracts (6 yr. SOL Al.) rather than an open acct. (unless it is a store card) You can try using the SOL has expired defense & see if it's accepted.
Re: Answering A Lawsuit Over Old Credit Card Debt
The CA reports it on my credit report as an open account. Does that help?
Re: Answering A Lawsuit Over Old Credit Card Debt
I would go ahead & use the SOL has expired defense. As the person from the Al. Attorney General's office said it changes from situation to situation (from court to court).
Re: Answering A Lawsuit Over Old Credit Card Debt
I would imagine that when this goes to court the judge will ask me if I received the CC and if I used the CC. If I say the obvious answer, yes, to both questions wont that validate the "account stated"? What is a good answer with totally lying to the judge but preserving my rights.
Re: Answering A Lawsuit Over Old Credit Card Debt
Thaz,
I'm actually researching this q right now and happened to stumble upon your post. Good news is that this question is not settled law in AL, and what comes to most people's mind when they hear of an "open account" (what qualifies for a 3-yr limitation) is a credit card. That being said, there is legal authority that could be interpreted both ways. Go to your local law school and look the following cases up to argue your point in court (I'll be back with more help once I actually have this written):
1. Wyatt v. Bradford & Company, P.C., 456 So.2d 822 (Al. Civ. App. 1984)
2, Ayers v. Cavalry, LLC, 876 So.2d 474 (Al. Civ. App. 1984)
Also, do not admit that that you owe whatever amount they are alleging. An "account stated" requires that you and the cc co agreed at some point as to the amount owed (it was liquidated and undisputed). Think of some reason why you don't think you should have had to pay it. They will also say that you consented to the amount by not responding to the bill (implied consent) you were sent after they canceled your account. If you gave them any kind of response that indicated that you were disputing the bill make sure to mention that to the judge.
They may also try to argue that this is not barred because the SOL and/or the characterization of the debt is substantive law governed by the law of the state agreed to in the k (usually N. Dakota, where this would definitely be a 6-yr limitation). I doubt they send a lawyer competent enough to make this point (no offense, but your debt is too small for them to spend the bucks on good counsel), but if they do, let me know. This issue is much more complicated.
Re: Answering A Lawsuit Over Old Credit Card Debt
Thanks slicklerk.
I have never received, to my knowledge, anything ever from this CA. Until I received the summons. I certainly never agreed with anyone as to amt..etc.
I did contact them by phone and asked for proof of the alleged debt. I was told by the rep that they had requested that info and it could take up to 120 days to recieve it. What does that mean?
Should I send them a letter requesting that proof and, if so, what specific documents should I ask for? Or should I just leave it alone.
How do I rpove SOL without showing CR as evidence?
Any help appreciated.
Re: Answering A Lawsuit Over Old Credit Card Debt
Sounds like if they need 120 days to prove you owe the money, they may have a difficult time getting evidence against you in time for the court case. I would dispute it first. I had a case where they couldnt find evidence in time and they had to drop the case against me. It's worth a try. Maybe you should use the SOL defense as a last ditch effort since you're not sure it will even be valid.