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  1. #1
    Join Date
    Aug 2007
    Posts
    7

    Default Collections Lawsuits for Assigned Debts, and the Statute of Limitations

    Utah

    purchased a water softener treatment in May 1999

    contract was signed at my home with water softener treatment representative with Commercial Credit

    filed Chapter 13 in Feb 2000, which was dismissed in Oct 2000

    received a summons for judgement in Jul 2007 with Nationwide Credit (who must have purchased the contract at some time) Along with the summons was an affidavit by the plantiff and a copy of our original contract

    after responding to several court papers filed by the plaintiff, we were summoned to court by the judge to hear arguments

    since bankruptcy was dismissed rather than discharged, bankruptcy was not a defense

    statute of limitations came up and the plaintiff's attorney stated that it was a possibility but they would need time to investigate the matter. judge gave plaintiff's attorney 45 days in which to respond and then we had 30 days in which to reply

    met with plaintiff's attorney after the hearing & he said not to worry about anything. it would take about 10 days to do the research and he would call us with the results.

    3 days after our hearingd, however, we received court documentation filed by plaintiff's attorney that we had 30 days from court date to respond to file a memorandum to support Defendant’s claim that the statute of limitations has run with respect to Plaintiff’s claim; following which, Plaintiff shall file Plaintiff’s reply brief with 45 days thereafter.

    We are now trying to answer this filing

    We can provide banking records indicating that we have not paid since 2000, which would put us outside the SOL; however, since there are alternate methods in which payments could have been made - how can we prove that

    Questions:

    1. Under the Federal Trade Commission Act, if someone purchases a contract, does the debtor need to be notified?

    upon receipt of the summons, this is the first we have heard of Nationwide

    2. Under the FTCA, does Nationwide have an obligation to provide us with a copy of payment history?

    The first statement in the avidafit:
    Affiant is authorized to make this Affidavit on behalf of Plaintiff and testifies to the following facts from Affiant’s personal knowledge from the books and records of Plaintiff. Said books and records are kept in the ordinary course of Plaintiff’s business, are true and correct in that they reflect the facts hereafter testified to. The keeping of said books and records is under the care of or supervision of Affiant.

    3. When the contract was purchased and who they actually purchased the contract with?

    We had assumed it was in Oct 2002, because that is when the interest and penalties begin. We assume the contract was purchased with Commercial Credit.
    The affidavit reads as follows:
    All right, title and interest of Assignor to the Account have been assigned to Plaintiff.


    4. If the water softener company made any payments to account?

    The last page of the contract has a notice, which reads:

    Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained with the proceeds hereof: recovery hereunder by the debtor shall not exceed amounts paid by the debtor hereunder.

    We don't know if this means that the water softener company had a limited liability to our debt or not.

    5. The affidavit also states that Plaintiff and Assigner have performed all obligations imposed uon them pursuant to the terms of the contract.

    Have no idea what that statement means, since we have not heard from Consumer Credit upon filing of bankruptcy and have never heard from Nationwide before the summons in Jul 2007.

    If anyone can help with this, it would be greatly appreciated.

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Collections Lawsuits for Assigned Debts, and the Statute of Limitations

    No; You should be able to get payment records through discovery, so talk to your lawyer; That's not a complete sentence; The creditor can't extend the statute of limitations by "making payments; It means they are asserting that they did everything they were obligated to do under the contract.

  3. #3
    Join Date
    Aug 2007
    Posts
    7

    Default Re: Collections Lawsuits for Assigned Debts, and the Statute of Limitations

    Thank you for the information you provided. Unfortunately, due to our financial situation, we are representing ourselves. I have started our response and will ask for the information.

    The contract itself is 4 pages with very small print; however, it appears that the only information re. Lender is that they can file suit or go into arbitration. So I guess they did fulfill the terms of their obligation.

    Again, thank you for your assistance.

  4. #4
    Join Date
    Aug 2007
    Posts
    7

    Default Re: Collections Lawsuits for Assigned Debts, and the Statute of Limitations

    I responded to order by reiterating statute of limitations had expired.

    Basically I used my credit report to support my claim.

    Commercial Credit was part of Citifinancial.

    Citifinancial changed the name of Commercial Credit to Citifinancial Inc on May 17, 1999 (per their ammendments with the state of Maryland)

    Citifinancial does appear on my credit report.

    The credit report shows that the high credit, date opened and monthly installments all match the contract.

    The credit report also shows last date of activity as 5/2000 with a 0 balance and the comments state closed or paid account zero balance. Charge off amount also states 0.

    Since I am dealing with a collection attorney, I am not sure how he will procede; however, I would like to be prepared.

    I have my financial statements from May 2001, which does not show any payments made. The credit union that I was dealing with when the contract originated does not have any record of my account with them (even though I provided them with the account number).

    Since the Plaintiff is requiring that I show support for claiming that the statute of limitations has run, what else can I do?

    The credit report has a 16 digit account and does not show the last 4 numbers. The contract shows a 6 digit account; however I believe it to be the same. Is it possible that the first ten digits are some sort of intracompany account?

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