I am being sued? Funny nobody told me.

[LadyShea]

We have recently gotten a few letters from mediators and attorneys offering to represent us in a lawsuit (letters included case number). We have never, however, been served or otherwise notified we are being sued.

Now, from what we can tell a collections company bought a very old, disputed debt, well past the statute of limitations. The debt hadn't even shown up on our credit report for several years, then when it was purchased suddenly it's back on there.

Anyway, do you think they filed specifically knowing that some businesses use filings as marketing opportunities, and that we might get spooked and try to settle or something? As I said it is well past the statute of limitations for all states, but specifically Nevada where the debt was incurred, and I could get it dismissed on those grounds in a heartbeat...I am just trying to understand why they would file papers but not have us served.

[seebs]

Possibly in the hopes that they can get a default judgement, if you don't respond, and the court doesn't realize you weren't served. They may have done something that they, or the court, plausibly thought would result in you being served.

I'd probably call the court and ask for more information, and find a consumer protection attorney who does this stuff; you're looking for "FDCPA" lawyers. Talk to CaDan, he used to beat these guys up fairly regularly.

[LadyShea]

Don't they have to prove we were served and or notified to get a judgement? Is this something that would go to the probate court? If so we have one probate judge for the entire county, he did our adoption.

[Stephen Maturin]

Originally Posted by seebs

Possibly in the hopes that they can get a default judgement, if you don't respond, and the court doesn't realize you weren't served. They may have done something that they, or the court, plausibly thought would result in you being served.

That's probably it. Failing to respond in a timely manner is grounds for a default judgment, even if the defendant has a conclusive affirmative defense (statute of limitations in this case). The system is set up such that courts pretty much have to rely on the representations of plaintiffs and/or their attorneys in determining whether service has been perfected for default judgment purposes.

LS, I think your first step is to contact the clerk of the court in which the case is pending. Find out whether the case is real and, if so, get copies of everything in the court's file.

It's much easier, and much cheaper, to deal with such bullshit on the front end. Getting a default judgment set aside after it's entered isn't easy, and sometimes isn't even possible.

[LadyShea]

I don't know where it's pending though. I have never been notified, see, only gotten some solicitations mentioning a case number...but not which court or anything like that. As far as I can tell our county has no records online. Who do I call? Would it be the probate court?

[LadyShea]

Sneaky son of a bitches. They tried to serve me in Las Vegas. They knew to file in Alabama but served my Nevada address?

Apparently they have asked for a sheriff's service of Frank here in my town, but wouldn't tell me the exact address so it could be my mom's or the rental we lived in for 10 months. The court clerk told me they can post a notice in a newspaper and say they tried their best or some shit. Fuck.

Anyway, now we have to go to the court house, accept service, and file our answer or they can, indeed, get a judgment against us.

Any of you legal types willing to help me write up an answer with the defense of the statute of limitations being past?

[D. Scarlatti]

Sue the debt collector.

[LadyShea]

Originally Posted by D. Scarlatti

Sue the debt collector.

I would love to, they are slimy and know how to play with the system to fuck people. On what grounds could we sue them?

What really pisses me off is we tried to settle this with the original creditor in 2003, and at that time they couldn't find our file or verify the debt, so nothing to settle. It stopped appearing on our credit report after that as it was unverifiable. Somehow they found it to sell to a scummy collections agency last year though.

Personally, I favour a response involving overwhelming force and obscene amounts of violence. Can you still get mini-nukes at Wal-Mart?

[D. Scarlatti]

By the way, if you incurred the debt in another State, the SoL may have stopped running when you moved.

[Dingfod]

Originally Posted by Uthgar the Brazen

Personally, I favour a response involving overwhelming force and obscene amounts of violence. Can you still get mini-nukes at Wal-Mart?

Sadly, only shotgun shells and rifle cartridges. Unfortunately for those average joes with a vendetta, Wal-Mart quit selling mini-nukes at the same time they quit selling handguns.


My daughter had a judgement against her and was never served. Almost the same situation, the debt was originated in Utah, but went bad in Oklahoma. They never, so far as I know, ever tried to serve her in Oklahoma.

[LadyShea]

Originally Posted by D. Scarlatti

By the way, if you incurred the debt in another State, the SoL may have stopped running when you moved.

What do you mean? Date of last activity, according to the credit report, is 2001. Nevada statute of limitations is 4 years, Alabama is 3 years. I am covered in either state as far as I can tell.

This is a credit card, by the way, dunno if that makes a difference

[D. Scarlatti]

I just mean generally, and it varies from State to State, that sometimes statutes of limitation on civil matters stop running when you relocate out of State, and then they start running again if and when you return. I don't know your particulars, obviously. The SoL doesn't discharge the debt, either, as far as I know. It just limits the actions that might be taken against you.

Also, what they said below. The FDCPA consists of guidelines for debt collectors, some of them very specific (for example, the hours during which the debt collector is allowed to contact you). But as Maturin says, it only applies to these outfits that purchase debt from creditors, not the original creditors (or their direct agents or attorneys, AFAIK) themselves.

[seebs]

"Fair Debt Collection Practices Act"

Read up on it. It gives you all sorts of potential grounds to sue them for any failure to be squeaky clean in their attempt to collect the debt -- but it has a very short statute of limitations, so you want to get moving right away.

There's a fair amount of law practice out there relating to suing slimy debt collectors into the ground.

[Stephen Maturin]

Originally Posted by LadyShea

On what grounds could we sue them?

I was thinking along the same lines as seebs, a civil claim under the federal Fair Debt Collection Practices Act. Unfortunately, FDCPA doesn't apply where the creditor itself is trying to collect. If the collection agency that filed suit actually owns the debt, FDCPA probably doesn't work.

A claim for abuse of process or malicious civil prosecution might fly, though.

[LadyShea]

Originally Posted by D. Scarlatti

I just mean generally, and it varies from State to State, that sometimes statutes of limitation on civil matters stop running when you relocate out of State, and then they start running again if and when you return. I don't know your particulars, obviously. The SoL doesn't discharge the debt, either, as far as I know. It just limits the actions that might be taken against you.

All I care about, at this point, is getting the lawsuit dismissed. The SoL is only on legal action, and the collections assholes are trying to play the game...they hope that either we don't know about the statutes and that the lawsuit will scare us into negotiations, or that they can't properly serve us and will get a judgment.

The debt itself we do not plan to pay, as I said we tried that in 2003 and found it unverifiable. It hasn't caused us problems, obviously, since we have had several refinances and a new mortgage in the last 7 years.

Should have to come off our credit report this year anyway.

[Stephen Maturin]

Originally Posted by D. Scarlatti

I just mean generally, and it varies from State to State, that sometimes statutes of limitation on civil matters stop running when you relocate out of State, and then they start running again if and when you return.

True, but those tolling statutes generally apply only where the forum state and the state where the cause of action arose are the same. Seems to me it would be tough to make a tolling argument work here, seeing as how the creditor sued in LS's current home state.

[ChuckF]

Best of luck, LS. I don't have any advice to offer, just wanted to say that this seems all kinds of fucked up.

[LadyShea]

What's really sad is that it happens every day. Most people do not know their rights, don't know the laws, don't ask questions as I have here when they are ignorant or confused on a topic, and don't research at all. They hear "lawsuit", panic, pay attorneys or even worse call and negotiate new payment arrangements which restarts the account as active, nullifying the SoL

About.com explains it pretty well

Even if the statute of limitations has expired, some debt collectors will continue to attempt to collect. They're hoping you don't know about the statute of limitations and you'll pay up if they threaten you enough. They may even file a lawsuit against you. If you are certain the statute of limitations has expired, you can use that fact as justification that you do not have to pay the debt.

Be careful not to restart the statute of limitations. Anytime you take an action with an account, the statute of limitations is restarted. Making a payment, making a promise of payment, entering a payment agreement, or making a charge using the account can restart the statute of limitations on an account. When the clock restarts, it restarts at zero, no matter how much time had elapsed before the activity.

[seebs]

If they bought the debt, I don't think they get any of the freedoms the original creditor would have had.

Talk to a lawyer!

[LadyShea]

I want to get it dismissed first, which should take nothing more than the answer to the courts. I can't really afford an attorney....is my case strong at all? They are within their rights to sue me, actually, I simply have grounds for dismissal

[lisarea]

This guy has a DIY kit for responding to lawsuits from debt buyers.

Caveat Emptor » DIY law: respond to your debt buyer lawsuit with forms

[LadyShea]

Danke!

I confess I am disappointed in the lack of carnage and terrified screaming, but I hope it works out for you nonetheless.

[LadyShea]

Originally Posted by Uthgar the Brazen

I confess I am disappointed in the lack of carnage and terrified screaming, but I hope it works out for you nonetheless.

Well, it's Midland Credit, known slimy bastards they are, feel free to terrorize on my behalf.