Recieved a complaint & summons sent by local attorney for plaintiff sherman acq. I need to file an answer, and need to know how do I do that. the complaint states:
1. the defendant was at all times pertinent hereto residents of XXXXX County.
Does that mean they are saying Ive always lived here for the duration?
It is just a statement of their belief. Is this an issue for you? The meaningful question is have you left the state and then returned. If so, the SOL was tolled (stopped running) while you where out of state
2. despite repeated demand I have failed and refused to pay outstanding obligation dueof 6457.36, interest thereon from and after 12/14/2007 at rate of 10% per annum or 2186.68 Is that date correct? 12/14/07???
Reads correct to me. 12/14 is probably the day they typed the petition.
3. That I have made no objection to the accuracy of said statements---which isnt true, Ive sent them letters stating the SOL have ran out, and Ive never said they debt is mine or true. I have copies of letters dating back to before this local attorney had the case. Also states its an Account Stated. I know this is an important statement, but how do I use it to my advantage?
Just boilerplate language. I hope you have copies of any correspondence you sent in case you need it later. But, that said, just because you disputed something or claimed the debt was OOS does not prevent them from suing. SOL is not a bar to a lawsuit -- it is however, a powerful affirmative defense.
As the the matter of the "account stated", I am not familiar with MT statutes. I don't think anyone here follows MN that closely. You might want to start reading the MT statues yourself to figure this out.
The date of last activity on my credit report is 12/01. Its only reported on one of my reports. I beleive SOL in my state is 5 yrs.
SOL in MT for a written agreement is 8 years.
There are some to think that a credit card is an open account and thus subject to the shorter 5 year SOL. That is hardly ever the case for several reasons. If the account was a department store charge card, then it is an open account. It the account was a bank credit card, you will have a tough uphill battle to convince a judge it is an open account.
In candor, this is a murky area. I know of only one state (Virginia) where a judge has actually ruled that a bank credit card is an open account.
If you are going to prevail on this issue, you must lay the MT statue book in front of the judge and highlight exactly what it says and show him/her why the debt is OOS. Expect the attorney for the plaintiff to be doing exactly the opposite.
In my opinion, credit cards are written agreements. I have a rather lengthly analysis of how I arrive at that conclusion but I am not going to repeat it here. Search on my name and start reading -- you will find lots of fussing and cussing over this question.
I have moved from the state to another briefly, and back, however I think in paragraph one, they say Ive always lived here, which would be to my benefit.
I don't think this is meaningful in any way. Their statement "you always lived there" is based upon "information and belief" which is legal text for "so far as we know". The judge is not going to kick the case just because the plaintiff was not aware you left the state and came back.
However, as noted previously, this works against you since the debt tolled while you were absent from the state.
Can someone help answer my questions above and how to file an answer to the court?
Filing an answer is the easy part. Much harder will be determining your defenses and how to defeat the claims of the plaintiff.
For my money, claiming SOL as a defense is a loser for you. I'm not saying to not do it -- just that I don't have confidence it will work.
Your answer must be filed with the court clerk. You should go to the court clerk's office and ask if they have any fill-in-the-blanks forms for filing an answer. Some courts do but I'm going to guess that MN has not progressed to that point. If they don't have forms, ask for a sample of an answer that you can use as a go-by sample.
There are a couple of books you can try. Nolo publishes a series of good self-help legal books. I've seen their books at Borders or you can order them on-line.
OK. some final thoughts and some advice you did not ask for.
1. You are clearly in over you head. That is not a slam on you but a simple statement that you have no experience in this area and you are thinking of doing something pretty complicated. You really ought to consider hiring an attorney. If not, be prepared for a lot of heavy-duty slogging. You will find lots of people on debt message boards who will give you their opinions -- some of which may actually be accurate. You will finds lots of conflicting advice and you've got to sort out those talking their BS from those what actually know something of how courts work and situations like yours.
You are going to find lots of posters who are going to tell you what cruds, crooks, scoundrels, low-lifes, slugs, dirty dogs, bums, etc. Sherman and their minions are. While that might make you feel good to know that you are not alone, my response is "so what?" and "who cares?". They win lawsuits. Don't let yourself get distracted by people who want to take you off task so they can vent some steam.
Even if you can sort out the BS, no one is going to do this for you. You've got to do it yourself. You can listed to all the opinions and then decide a strategy.
Final advice. From what few facts you have outlined, I do not think you have a winning defense. No matter how hard to work the deal, I think the probability is high that in the end, you will lose the case. At that point, your hit will be worse because of all the added legal fees that are going to be tacked on the judgment. Also, in my experience, once the judgment is granted, it is harder to make a deal. I would encourage you to call the attorney for the plaintiff and see what kind of deal you could make today. Weight that against the chances of winning and the cost later.
Good luck.
