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  1. #1
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    Apr 2009
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    Default Filing Date, Court Date, and Statute of Limitations

    My question involves collection proceedings in the State of: CA

    I got home yesterday to some court documents (I think it was a summons, not a subpoena, sorry for the mistake in title) that were served to a family member in lieu of myself (I was not at the residence at the time). A collection agency is trying to recover a debt that was owed to a major credit card company. I was trying to wait out the S.o.L period which seems to be 4 years in california for credit card debt. The date on the paperwork I got yesterday says 3/27/09 even though it was given to me on 4/13/09 (that probably doesnt matter, just giving as much detail as I can think of).

    I have a credit report I ran last year that says the date of last payment was 05/2005. Seems to me like they beat the S.o.L. by about a month if it goes from the file date instead of the actual court date, but I am praying that is incorrect and it will be calculated on the date I see them in court. If anyone can let me know whether they managed to be johnny on the spot and file it just in time or whether I might be able to use S.o.L. as a defense I would greatly appreciate it.

  2. #2
    Join Date
    Jan 2006
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    38,867

    Default Re: Filing Date, Court Date, and Statute of Limitations

    the SoL stops when they file the suit. Sorry, looks like you will be seeing them in court.

    On top of that, if this was a monthly payment situation, you would not be delinquent until the first missed payment, not when you made the last payment so that would add another month they had to file.

  3. #3
    Join Date
    Jul 2008
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    853

    Default Re: Filing Date, Court Date, and Statute of Limitations

    Depending on the details and how this went down, the SOL may apply. All of this depends on the accuracy of that credit report.

    OP- do you have a record of when you made your last 6 payments? Also, there are other defenses as well. If the Plaintiff bought the debt from the original creditor, the collector cannot swear to the veracity of the records of the creditor due to the hearsay rule. That means that they need to produce either the creditor's record keeper or an affidavit from the creditor that swears to the accuracy of the records.

  4. #4
    Join Date
    Apr 2009
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    2

    Default Re: Filing Date, Court Date, and Statute of Limitations

    No, I dont have a record at the moment, I will need to crawl through my papers and I was thinking about online records for my bank account, but I don't think they go back that far.

    Honestly, I thought I the last time I had paid them was longer ago than 2005, but the credit report information is really the only evidence I have on paper that has a last paid date. Also, I think the company currently attempting to collect is the third one to handle the debt, so their records might not be in the best order either if I can find something.

  5. #5
    Join Date
    Oct 2008
    Location
    Washington comma the Great State of.
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    1,211

    Default Re: Filing Date, Court Date, and Statute of Limitations

    Quote Quoting G.Zod
    View Post
    No, I dont have a record at the moment, I will need to crawl through my papers and I was thinking about online records for my bank account, but I don't think they go back that far.

    Honestly, I thought I the last time I had paid them was longer ago than 2005, but the credit report information is really the only evidence I have on paper that has a last paid date. Also, I think the company currently attempting to collect is the third one to handle the debt, so their records might not be in the best order either if I can find something.
    As noted above, you'll need to determine exactly who is suing you: the original debtor (credit card company), or a collection agency?

    You'll want to track down all of your paperwork to note the times of last payments made, contracts and so forth. You can request that the credit reporting agency validate the debt.

    A good summary of what you can do can be found here.

  6. #6
    Join Date
    Jan 2006
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    38,867

    Default Re: Filing Date, Court Date, and Statute of Limitations

    g.zod; that link is so full of twisted logic, I think the wroter must have been a pretzel maker at some time. They say one thing and then provide case law seemingly to support what they said. The problem is, it often support it in the manner they implied it would.

    This is the controlling law.. Validation is a simple procedure which the collector simply contacts the original debtor to verify the debt. That is it. You do not have a right to demand an accounting of the account. No payment history, no contract showing this agency has the right to collect the debt. Those are all things you can demand in court but there is no requirement to provide them before.


    Of course, when the debt went in to default is critical, if you want to argue an SoL defense so figure that out and when you do, then you can go to the next step.

    You are being sued so you need to do things quickly. Your time is limited.

    if any advice given my divemedic or ashman get you off, please let me know but generally, they are giving you false hope.

  7. #7
    Join Date
    Jul 2008
    Posts
    853

    Default Re: Filing Date, Court Date, and Statute of Limitations

    JK- we have had this conversation before. If the debtor is being sued, the burden is upon the plaintiff to prove that a debt is owed, and the amount of that debt. The plaintiff cannot simply go into court and say "Your honor, the debtor owes me money because Joe's bank told me they do."

    There is a standard here of what can and cannot constitute a valid record kept in business. I, as a debt collector, cannot swear to the accuracy and completeness of another entity's business records. That is, the collector must be able to produce records IN COURT to show that the balance being claimed is the correct one, and that the records are kept in the ordinary course of business. This can be hard to do when a debt has changed hands several times between the original creditor and the debt collector who is filing suit 4 years later.

    While there is an exception for the hearsay rule that applies to computerized records kept in the oridinary course of business, the party producing those records has a burden to prove that the records are in fact a part of routine business operations, and that they are complete and accurate.

    If I am a a collector named Dave, who bought a debt from collector Bill, who bought the debt from collector Sue, who bought the account from the Security Trust Bank for a credit card issued to Mike, how can I testify to the accuracy of each entity's records? This is the weak link in the case of most Junk Debt Buyers (JDB's).

    All the records of the debt collector can attest to in the above example is that Bill sold me a debt that claimed Mike owed $500 to the Security Trust Bank. No one except the Security Trust Bank can attest to the creation of the debt, and no one except the Security Trust bank can testify that the records were kept in the ordinary course of business, nor can anyone except an employee of the Security Trust Bank explain the records keeping process of the bank without violating the hearsay rule.


    The level of proof required to win a lawsuit is totally different from the level of proof required to validate a debt as per the FDCPA. The FDCPA cannot be used as a defense in court, and I would not even mention it OR validation. Instead, I would use the SOL while simultaneously attacking the evidence and the chain of custody of the records.

  8. #8
    Join Date
    Jan 2006
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    38,867

    Default Re: Filing Date, Court Date, and Statute of Limitations

    =divemedic;308648]JK- we have had this conversation before.
    and if I remember correctly, you were wrong then.

    Sorry, but I'm not going to waste my time this time.

  9. #9
    Join Date
    Jul 2008
    Posts
    853

    Default Re: Filing Date, Court Date, and Statute of Limitations

    I stand by what I said. I will leave it up to the OP to decide who is being helpful and explaining the law, and who is acting like an @ss.

  10. #10
    Join Date
    Sep 2008
    Posts
    20

    Default Re: Filing Date, Court Date, and Statute of Limitations

    First remember and realize RK is a Debt Collector's advocate. Now, is this the original creditor suing or a collection agent that bought it. A collector who bought it is most often refered to as a JDB (junk debt buyer) they can be beat most often in a court of law as they have no real access easily to the OC database.

    Post the full complaint xxx'ing out personal data and include anything given in support of facts, listen to DiveMedic, he has personal experience with this.

    File your own personal affidavit to defeat theirs:

    http://debtcollectionlawyer.blogspot...r-beat_03.html

    file a SWORN DENIAL. This needs to be a statement in WRITING that you FILE with the court where you have been sued. It can be a simple statement, but it needs to be typed, signed, notarized, filed with the clerk of the court and a copy sent to the collection lawyer. It needs to be a graduated denial. In other words, it needs to say, I deny this is my debt and if it is my debt, I deny that it is still a valid debt and if it is a valid debt, I deny the amount sued for is the correct amount. The sworn denial is a powerful tool. It eliminates the Sworn Affidavit of Account. The vast majority of collection suits proceed without a witness for the creditor The collection attorney enters an affidavit signed by the creditor that the debtor owes the debt and that is this amount. With that affidavit in hand, the court gives the creditor a judgment. When a sworn denial is filed, the debt collection attorney can not rely upon a sworn affidavit of account, but must instead produce a live witness to testify about the debt. The requirement of a live witness changes the dynamic of the collection action considerably. The likelihood that the action will go no further now increases again.

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