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  1. #1
    Join Date
    Feb 2011
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    Post Credit Card Company is Suing Over Default

    My question involves collection proceedings in the State of: Colorado

    Hi there, I've been reading most of the day and am slightly more confused then when I started I think. I'll see if I can lay out my situation clearly:

    For starters, I just received an 'Alias Summons' Friday night out of the blue. According to the summons, a company called North Star Capital is trying to collect a credit card debt that, I assume, they bought from Capital One, for an amount totaling $2334. The problem is that I've never had a Capital One credit card, and I've never seen a single thing on my credit report stating this debt. I even bought a new home last year, and this was never anything that showed up, even in that process.

    Since today was the first time the Courts were open, I started digging into this. I found out that they claim that they served, or attempted to, summons to my previous address, which I never knew about... which I find hard to believe. This happened in another county from where I bought my new home recently. Attempts to call the collection agency, Capital One and the attorneys office representing North Star all were pointless, most of the time resulting in them hanging up on me when I pressed for information. However, I did get a small amount of info from Capital One and North Star (before they transfered me to legal and hung up):

    • Account opened on Nov 12, 2001
    • Account closed on March 3, 2003
    • Last payment on account was July 18, 2002


    Things noteworthy: in 2001, I lived in FL... either Miami or Orlando (I moved roughly around that time)

    Ok... after reading up and searching the forum, I figure I have two options:
    1. Dispute the debt as mine, file Police reports, and go through a long drawn out headache.
    2. Use the Statute of Limitations and possibly be done with it.


    Having looking up that SOL, I see that Florida SOL is 5 years, and Colorado SOL is 6 years. Assuming a Credit Card is an Open Account.

    Fast forwarding to where things go fuzzy to me... (more than they already are). I go to the original County Clerk where the original summons is "supposedly" undelivered to me and get a Register of Action, which has these entries in it:

    • 6/30/08 - Summons and complaint filed
    • 9/17/2008 - Notc of Dismissal - Fail to Pros
    • 9/17/08 - PFTA - Party Failed to Appear
    • 9/22/08 - Motion for non dismissal
    • 9/22/08 - order for non dismissal
    • 9/22/08 - Granted with amendments (assuming for order of non dismissal)
    • 11/18/08 - Summons issued (Alias summons)
    • 11/18/08 Return date on summons - CONT-Continued by parties
    • 11/21/08 - Review - HELD- Hearing held
    • 1/22/08 - Return date on summons - PFTA - party failed to appear
    • 3/10/09 - Review - HELD-Hearing held
    • 3/10/08 - Notc of Dismissal - Fail to Pros
    • 11/25/09 - Summons issued (alias)
    • 1/27/10 - Return date on summons - HELD-Hearing held
    • 2/19/08 - Review - HELD-Hearing held
    • 2/19/10 - Dismissed without prejudice
    • 2/19/10 - Case closed
    • 4/7/10 - Motion to change venue
    • 4/26/10 - Order granted (order to change venue)
    • 10/6/10 - Certificate of change of venue filed apparently
    • 2/4/11 - I finally receive an Alias summons at my front door


    So, I guess my questions are as follows:
    • Should I go the police report route and claim identity fraud? Does this put me in a bad situation come March 3rd, 2011 when I have to show up for court? In fact, would this even do anything? Would I be right back at another court date 1, 2 or 3 years from now? Would this put something negative on my already excellent credit report.
    • Should I just walk into court, and ask for this to be dismissed "with prejudice" based on the SOL expiring? And if so, how does the Alias Summons effect things? I am assuming, and it's a big assumption after reading everything, that since there was a "Dismissed without prejudice" showing up, that the SOL still puts the debt claim at not quite 9 years old?


    Is there anything that I'm not just thinking of? Are these both dumb options? After talking with the lady in the Clerks office, it seems as though the March 3rd meeting is just me and the lawyer in a courtroom, without judge, trying to come to an agreement, which I see ending badly. I'm simply not paying for someone else's debt, nor do I feel I should have to. I'm open to any opinions. Sorry this post might be a little bit long, but figured any info is good info, within reason of course. Thanks for your opinions in advance, the reading I've done so far on here has been valuable!

  2. #2
    Join Date
    Feb 2011
    Posts
    4

    Default Re: Credit Card suing me, opinions? (detailed account inside)

    Ok... how about two easier questions:

    1. If the last payment was on July 18, 2002, and the original summons was issued in June 24, 2008, and the alias summons I received was 2/4/11. Do I have a defense of SOL expired, given that CO is 6 years?

    2. Since the card is obviously a identity theft case, should I go immediately to the local Police Department and file a police report? If so, should I take the paperwork to my court date and refuse to pay?

  3. #3
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    Default Re: Credit Card suing me, opinions? (detailed account inside)

    Quote Quoting 1tonyj
    View Post
    • Last payment on account was July 18, 2002
    Quote Quoting 1tonyj
    • 6/30/08 - Summons and complaint filed
      * * *
    • 2/4/11 - I finally receive an Alias summons at my front door
    If the complaint was filed within the limitations period, the issue appears to be whether the plaintiff made a reasonable effort to serve you following its being filed. See, e.g., Dillingham v. Greeley Publishing Co, 701 P.2d 27 (Colo. 1985). Under those facts I suspect you have a good argument that the delay was not reasonable. But recall, you have the burden of properly raising a statute of limitations defense and of proving its applicability.
    Quote Quoting 1tonyj
    Things noteworthy: in 2001, I lived in FL... either Miami or Orlando (I moved roughly around that time)
    And?
    Quote Quoting 1tonyj
    [LIST

    [*]Should I go the police report route and claim identity fraud? Does this put me in a bad situation come March 3rd, 2011 when I have to show up for court? In fact, would this even do anything? Would I be right back at another court date 1, 2 or 3 years from now? Would this put something negative on my already excellent credit report.[/list]
    If you believe identity fraud occurred, reporting it to the police would make sense. I doubt that they can do anything about it but the paper trail may help you in your defense.

    I would expect that a default on the credit card would have been listed on your credit report some years ago, and may well have dropped off by now - I cannot investigate either your credit report or credit history. A new judgment would appear on your credit report, if it comes to that.
    Quote Quoting 1tonyj
    • Should I just walk into court, and ask for this to be dismissed "with prejudice" based on the SOL expiring? And if so, how does the Alias Summons effect things? I am assuming, and it's a big assumption after reading everything, that since there was a "Dismissed without prejudice" showing up, that the SOL still puts the debt claim at not quite 9 years old?
    You need to properly raise the statute of limitations defense, ordinarily in your first responsive pleading. If you wish to have a hearing on the defense you would normally file a motion and notice it for hearing with the court. Check the court rules for the court in which the litigation is pending.
    Quote Quoting 1tonyj
    Is there anything that I'm not just thinking of?
    Probably.... To start with, why should anybody believe this isn't your debt?
    Quote Quoting 1tonyj
    View Post
    1. If the last payment was on July 18, 2002, and the original summons was issued in June 24, 2008, and the alias summons I received was 2/4/11. Do I have a defense of SOL expired, given that CO is 6 years?
    See the earlier comment.
    Quote Quoting 1tonyj
    2. Since the card is obviously a identity theft case, should I go immediately to the local Police Department and file a police report? If so, should I take the paperwork to my court date and refuse to pay?
    This, also, has been addressed.

    Why is this "obviously" an identity theft case?

  4. #4
    Join Date
    Feb 2011
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    4

    Default Re: Credit Card suing me, opinions? (detailed account inside)

    Probably.... To start with, why should anybody believe this isn't your debt?
    The naive answer is because there isn't a thing out there, between Capital One and me, with my signature.

    Why is this "obviously" an identity theft case?


    Because I never signed up for a Capital One card. My understanding, after talking with them, is that my SS# matches the account. For the lack of a better term, this is "obviously" an identity theft case. See above quote to go with this answer.

    And?
    My assumption after reading, is that this account was created while I lived in Florida, not Colorado, and that the attorney on the other side can use the SOL of either state, whichever is greater.

    If the complaint was filed within the limitations period, the issue appears to be whether the plaintiff made a reasonable effort to serve you following its being filed. See, e.g., Dillingham v. Greeley Publishing Co, 701 P.2d 27 (Colo. 1985). Under those facts I suspect you have a good argument that the delay was not reasonable. But recall, you have the burden of properly raising a statute of limitations defense and of proving its applicability.
    Thank you for that, hadn't come across that in my reading... nor do I think I ever would have.



    As for the police, I am going in the morning to see what the procedure is. I figure if nothing else, someone is out who opened an account in my name. Although I too feel it will be a waste of time, maybe something will come of it.


    The only other mystery to me that I am researching right now, is whether the SOL is actually 6 years and not 3. I am finding different answers to which SOL is correct. I came across this:

    Credit cards are NOT written contracts, they are open-ended agreements. SOL is 3 years:

    Quote:
    §13-80-101 -
    General limitation of actions
    Three Years.
    (1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within three years after the cause of action accrues, and not thereafter:
    (a) All contract actions, including personal contracts and actions under the "Uniform Commercial Code", except as otherwise provided in section §13-80-103.5;


    It was proposed that one could possibly use this, and as I understand it, submit the Truth in Lending Act as an argument?


    Thanks for the reply.

  5. #5
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    Default Re: Credit Card suing me, opinions? (detailed account inside)

    You can apply for a credit card by phone, no signature required. Either the card was obtained from your address or it was not. Either you got the card or you did not. Either the bills went to your address or they did not. Either you got the card or you did not. Either you made charges or you did not. Either you made payments prior to default or you did not. There will be records of something.

    You're being sued in Colorado over a default that apparently occurred when you lived in Colorado.

    I personally don't see why the limitations period wouldn't be six years under CRS 13-80-103.5(1), but I'm not a Colorado lawyer; again, the burden of proof is yours so if you have authority for the shorter limitations period or have a good faith argument for its application by all means present it.

  6. #6
    Join Date
    Feb 2011
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    Default Re: Credit Card suing me, opinions? (detailed account inside)

    So one last question... if I decide to use the SOL defense and get this over with. (I don't have faith that my report with the PD today will lead to anything)

    With the original summons being issued within the 6 year SOL period, and then a "dismissed without prejudice" following, do I go off the date of the original summons, or the Alias summons I received 5 days ago? Basically, did that DWoP end everything prior to that?

    To put it another way, in your opinion, am I essentially starting over when I received the new Alias Summons I received 5 days ago, based on the DWoP? If so, that would put me 9 years out from the last payment the collection agency has on file for this account. Which in my mind, puts a end to this and closes the door from them trying to sneak default judgements against me in the future. If I am forced to go off the date on the original summons, I need to rethink my defense and probably contact an attorney.

    Thanks for the help again.

  7. #7
    Join Date
    Mar 2011
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    1

    Default Re: Credit Card suing me, opinions? (detailed account inside)

    I have the same question regarding the last post on which date to go off for SOL (Original Summmons or Alias Summons once correctly served). Also, in my case, the case was closed for lack of progress and then not reopened until almost two years later. What effect does this have on the statute of limitations? I am also in Colorado. Thank you in advance.

  8. #8
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    Default Re: Credit Card suing me, opinions? (detailed account inside)

    If the court permits the action to be reopened based upon the timely filing of the original complaint, it will be up to you to convince the court that the defendant did not act with due diligence and that the action should be treated as expired under the governing statute of limitations.

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