I do not have an attorney

[clyde824]

What is the name of your state? Louisiana, I am due back in court on the 29th of Aug, for a Credit Card debt that I do not believe is mine. The debt is also according to LvNv Funding's records very old. They bought it in 2001 and last activity was in 1998 or1999.

I have no record of the debt and stated so in the answer. I am wondering if expired S
OL will be a defense or can I make them prove in Court that the debt is actually mine. It is for $12,982.

This is the third time to go to court. 1st time judge gave me time to research the debt. I cannot find any records, 2nd time judge (different judge) gave the other attorney for the collection company time to get their information together.

I did write the attorney and the collection co. and told them the sol has expired and that i do not believe the debt is mine. This was done after 1st time in court before 2nd time in court. I believe that is the reason for the 3rd time incourt.

Thanks for any assistance on this matter.

Clyde824

 

[dcatz]

OP –
It’s difficult to know where to start with your post, because the first query that comes to mind is why you’re in this forum. Small Claims limit in LA is $3,000, and it’s curious that they would sue for a $12K+ debt in SC court.

Other considerations are whether the debt is considered a written agreement or an open account and how that bears on the SOL. Both have been hot topics recently in the Banking & Credit Cards forum. You might want to look there, but you don’t have a great deal of time to watch a debate that won’t be resolved soon.

A final problem is that your state’s legal system has an origin different from all other states, and there is no assurance that answers to the questions in other states will lead to the same answers in yours.

That said, let me summarize:
They have to prove the debt is yours; it’s not your responsibility to prove it isn’t. If they can’t do that, the case is finished.
If they do that, the SOL is important. The SOL in your state is 3 years for open accounts and 10 for written contracts. You say the last activity was in 1998-1999. We’ll assume that a default was in the same period.
Traditional thinking was that credit cards were subject to the shorter SOL, but many courts in many states have been treating credit cards as written contracts and subject to the longer SOL. The discussion could go as long as it has on the other forum. You can look at that and learn from both arguments but you have too little time to become enmeshed. If you get to the point in your own case, you have to argue that the shorter SOL should be applied and hope the court agrees. My own opinion is that more courts will favor the contract interpretation, but you have the added advantage that LA law places much emphasis on equity (principles of fairness to both sides), and the plaintiff has waited a long time to act.

One of the reasons for creating SOLs was to avoid circumstances where memory fades and evidence is lost. That appears to be a problem in your case and could support an argument that you’re no longer able to adequately defend yourself.

 

[clyde824]

No Attorney Needed!!!!

Well I went to Court today. Before the Judge came in, the Attorney (someone who sat in for the original Attorney) asked me to step into the hall way. She starts saying that I should have gotten a notice or something because they want to dismiss the Judgement.

I then ask (thanks to this most wonderful forum) if it is going to be with predjudice? She says that they are going to ask for a dismissal without predjudice! So I politely said that I would like it dismissed with predjudice. I know she probably thought (Where did she get this kind of info and terminology) because she did look surprised that I would even ask.

We go back into the court room and wait our turn. In the mean time I am sitting there for the 3rd time thinking to myself (please let the judge dismiss with predjudice). I have a beat up red pocket folder with all of my internet print outs from this and other forums and I am frantically reading through them so I can tell the judge without stuttering that I want the case dismissed with predjudice and the reasons why. (remember I am solo here)
Pretty scary feeling.

When it is our turn, the attorney for the plaintiff tells the judge that they are going to file a motion to dismiss without predjudice. I stand there and the Judge glances at me waiting for a response (I think) so I blurt out "Your honor, I would like to ask for the judgement to be dismissed WITH predjudice. They cannot prove the debt is mine and according to their own records it is way past the statute of limitations (3 years perscription in LA)"

He then says something to the affect that the SOL would not determine if the case is dismissed with or without predjudice but that he is inclined to dismiss the judgement WITH PREDJUDICE.

Yes Yes Yes!!!!!

At this point I am so excited under a calm demeanor (but I want to make sure I am not hearing things), so I ask If I need to get something in writing from the clerks office on my way out. The other Attorney is dissapointed (I am sure because she let her Boss the big wig down) So she practically runs out of the court room and never looks back at me who is smiling to myself.

So I guess I won (however I will reserve my utmost glee until I actually see it in writing).

I want to say thanks to this and all of the other Forums. I certainly would not have been able to do this on my own. For starters I had no Idea that I could even fight something like this.

By the way the debt was for a little over $12,250 Gone but not forgotton

The Plaintiff was LVNV Funding.

Sincerely, Hotdot824

 

[dcatz]

I guess you won too. Congratulations.

Forums may have helped, but it sounds as if it was more a matter of your persistence and conviction.

Particular congratulations when the plaintiff was LVNV Funding. That junk debt buyer has been riding through states like Genghis Khan’s hoards for more than two years. Last year, they had more than 300 cases pending simultaneously in my state. You should feel very proud of the result that you achieved.

 

[clyde824]

No Attorney Needed

Thank you very much. I have other issues to resolve but this one was by far the largest.
I just hope my experience will help others.
Do not give up and give in. It takes time and effort but in the end it is well worth it.

Dorthy