Hello, I have an old debt which I think the statute of limitations may have run out but I didn't know about the statute of limitations until now. I received a summons regarding this debt and may have received a judgement against me, Is the statute of limitations still in effect after receiving a judgement?
No, you have to plead a statute of limitations defense at the hearing. You have to prepare it in advance and submit it to the court and to the plaintiff's attorney.
If they already have the judgment then your only recourse is to file a complaint against them in federal court for misrepresenting the legal status of the debt.
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Thank you Bill, It turns out that my court date is in September 2008, However I did not respond to the summons which I received in April. How can I find out for sure if my debt's SOL has expired. Also what do I do now since I did not respond to the summons, can I still use this in court. Thanks in advance. Erwin
I can't really answer your questions here because they take personal investigation by you. The only way to get the answer to your first question is to go to the clerk of the court and ask them if you can respond or not. My guess is that it is far too late but with a September court date there is a reasonable chance that they might still allow a response. The only way to know is call the clerk of the court or go there and ask them.
As to your second question, if they let you respond now then yes, you would be able to use the SOL defense. If they won't allow a response you would have to file a federal lawsuit against the lawyer to get a the job done.
You are far better off in federal court than you are in local court because it is far less stressful. Most such cases as we contemplate never require your personal appearance in court. It is all a paper war
and the only time any personal contact is required is normally some phone conversations with the defendant's lawyers. They are usually very cordial. Some of them do try to act like they are in control of the situation and try to dictate the terms of the settlement. Usually all it takes to stop that attitude is to remind them that they are the defendants and defendants who are on the losing end do not get to dictate the terms or conditions of their punishments.
They usually attempt to demand a non disclosure clause in the final settlement because they don't want to suffer any adverse publicity because of their previous bad behavior. That is a rather silly demand in the first place because the facts of the case are easily available on line through the Pacer court system and are a matter of public record anyway. In most cases all it takes is to remind them that a non disclosure clause is patently silly because it is all a matter of public record.
So although the learning curve for federal court is a bit steeper than it is for local courts it isn't that bad. Just a few extra steps and that is all there is to it. As long as you have someone helping you who knows about those extra steps its no big deal.
So once you are served in local court and have responded you should easily be ready to take them to federal court and force a stop to the local action before it gets out of hand.
The most critical thing needed to win in federal court is a well prepared history of what has happened. Dates, times, places, copies of their letters to you with as much factual detail as possible without making a novel out of it. Just factual statements in your written history. Keep it as short and easy to read as possible.
That will become the foundation of your complaint in federal court and if you do it right your complaint will be easy to formulate.
An example might be as follows:
July 20th, 2008. Received 1st dunning letter from Smart Alec Collection agency which failed to include any Miranda notice as required by 15 U.S.C. 1601 et Seq. Section 809(4).
July 21, 2008
Called me at 10 A.M. and wanted me to pay the debt. I said I don't have the money right now and asked if they would take 6 payments. They agreed and wanted a series of post dated checks. I agreed to that and gave them my banking information and said I wanted the checks deposited on the 2nd of each month. They agreed.
July 30th, 2008
The first check hit my bank and caused me an overdraft fee. Violation of 15 U.S.C. 1601 et seq Section 808 (4) and may also have violated Section 808 (2)
And on and on and on for however many violations might have occurred.
With a history like that already written up it will be easy to write up your complaint when it comes time to file a case on them in federal court. Without that kind of history it can still be done but it will be more difficult to do and you will most likely miss several violations that could have been used against them.
When you have time you can also go to http://www.fdcpaexpert.com and look up the court cases that have been previously filed against debt collectors to make your case preparation even easier.
So don't let the thought of taking debt collectors and their lawyers to federal court frighten you. Once you have been guided through the process it is no big deal at all and you can end up with pristine credit, no outstanding debts and cash in you pocket.
What could be better than that? And all it takes to get you started is a phone call. You can make that call any time, evenings, Saturdays, Sundays and even holidays.