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  1. #1

    Default Burden of Proof of Last Payment on Account (Statute of Limitations Defense)

    My question involves collection proceedings in the State of: TEXAS

    Trying to help a family member represent themselves pro se in defending a suit brought by a junk debt collector. Original creditor was Bank One - for a credit card with a $1000 credit limit issues in mid 1990s with perfect payment history. Enter Chase acquisition of Bank One. Sometime in 2005, Chase took over Bank One's revolving credit card accounts, resulting in a long period of no statements from either Bank One or Chase. When first Chase statement was received, account was maxed out, delinquent and sometime shortly after that, Chase jacked the interest rate up to 29.9% due to the delinquent status.

    Charged off account was purchased by junk debt buyer "Bluebonnet" who also operates as a law firm from the same physical address. Bluebonnet files suit against my brother March 2011. He files general denial in response. Last week, Bluebonnet filed a "Business Record Affidavit" which attached Chase statements on the account from 12/07/05 through 05/07/07. The first statement shows a balance of $1855; past due amount is $106; minimum payment due: $1,110.03!!! Keep in mind that this was a card with a $1000 limit. Statements from 01/05 through 09/06 show periodic payments, but each month also has a charge for $39 overlimit fee; $39 late fee; $40-50 interest!!! Naturally, there are no new "real" purchases on the account....and never were any during Chase's ownership....since the credit limit was far exceeded with Chase's default charges and fees.

    Since the last payment shown on the records attached to Plaintiff's own affidavit was made on 9/22/06, we filed a motion for dismissal on grounds that the suit is time barred by the Texas SOL.

    My question is....DOESN'T PLAINTIFF HAVE THE BURDEN OF PROVING THAT A PAYMENT WAS MADE SINCE 09/22/06? The balance shown on the last statement attached to Plaintiff's records is $2368, but they are only suing for $1200. But if Plaintiff doesn't have any proof that any later payments were made, does my brother have to volunteer such information?

    The motion for dismissal has been set for hearing next month.

  2. #2
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    Default Re: Burden of Proof of Last Payment on Account (Statute of Limitations Defense)

    The party asserting the statute of limitations has the burden of proof on that issue.

    To the extent that discovery is permitted in the court in which the litigation is occurring, the opposing party can use discovery tools to obtain documents and admissions about the payment history. If there is an evidentiary hearing on a motion at which testimony is taken, the opposing party can question the moving party about the payment history.

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