How to Request a Dismissal in Court Due to Statute of Limitations in Utah

[Kristi]

My question involves collection proceedings in the State of: Utah. I have credit card debt that went delinquent in 2005. It went to collections lawyer in 2008. I requested information on this debt which will be sent to me by mail from the Collections office. I believe the SOL applies in this case. I believe the SOL in Utah to be 4 years. Is this correct? We went to court and spoke to a representative from the Collections office who suggested we make payment arrangements. We are financially unable to offer payments. How do we request that this be dismissed? Thank you in advance. Any help will be greatly appreciated. We are below "hand to mouth" here in Utah. Keeping a stiff upper lip, Kristi

[flyingron]

Of course the debtor would like you to make payment arrangements. The SOL is actually six years, but it's still expired. If you have made no payments or purchase on this debt since 2005 then it is indeed time barred and you should make a motion to dismiss the suit as being time barred.

[johnb123]

For Utah it is 4 years. If they haven't filed for a judgement yet, they can't collect. Do not send them anything until you know for sure there is a judgement against you. You can out by contacting the Superior Court in your county. Also check to see if you're judgement proof. If you don't have any assets or income they can take, it won't matter if they get a judgement. You have nothing they can take. Do NOT send them anything until you find out more.

[flyingron]

Depends on the character of the debt. Open accounts are 4 years but written contracts and promissory notes are 6. Most credit accounts are successfully argued as being written contracts.

[Mr. Knowitall]

You raise the statute of limitations in a timely manner as an affirmative defense and, as the issue would apparently be decisive if decided in your favor, file a motion for summary disposition citing the facts and legal authorities that you believe justify the grant. You will need to read the governing court rules, and would likely benefit from consulting a state-specific guide to pretrial civil practice.

[Kristi]

I really appreciate the information on this subject. I am waiting for specific information on this case from the collections agency. I am wanting to avoid my husband's check from being garnished. Can garnishment occur without a chance for us to defend ourselves? Then, after receiving the info from collections agency, I will need to file a motion to dismiss this case on the grounds of SOL? I am in the process of much reading, but was wondering of the proper terminology, etc. Mostly, I need to know if we will be getting garnished before we can obtain more information. Thanks, Kristi

[flyingron]

Garnishment doesn't occur before they win a judgement. You get the chance to contest the awarding of the judgement and then usually garnishment. Unless your husband was signed on to the debt, they can't garnish him (though they can attach any funds you have in the bank in an account with your name on it).

[Kristi]

flyingron - I appreciate your response and don't wish to take more of your time than is necessary. I'm trying to get a grasp on how this will work. Firstly, my husband is signed on the debt. We went to court the other day with a summons that said "Order in Supplemental Proceedings". We spoke with a gentleman who was a representative for the collections law firm. He asked questions about income, employment etc. He suggested to us that we contact the collections agency and make arrangements for payment. This was all. Now I am awaiting information by mail from the collections and am instructed to call them when I receive the information. She said to be sure to call her or they will have to "proceed"... What was she referring to and what should I be doing now? Is there a form I should look for at the court to explain that this debt is beyond SOL? Or do I need to wait for them to proceed with the issue first? Thanks again for your time, Kristi

[Dogmatique]

Kristi, the rep for the collections firm wants you to make payment arrangements because by doing that, you reset the SOL clock!

They're basically threatening you with a lawsuit; they know that the SOL is up and getting you to start paying now is realistically the only chance they've got of getting any money (unless you don't turn up at court).

[mmmagique]

They are "threatening" with a lawsuit, but not actually saying it, because they legally cannot threaten you with something they can't legally do. (I know it's a terrible sentence, but...it's late.)
Do not talk to these people again. If you just can't help yourself, ask her what she means when she threatens to proceed. She'll bluff and blunder, but she will NOT say, we will take you to court. (because then, you could actually sue HER and the company she works for.)