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
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.