Expert: Michael Brotherton - 5/13/2008

Question
My wife received a summons to appear in court on May 28th of this year regarding a bad debt Unifund Partners picked up from a Chase Manhattan account she defaulted on.  The card was picked up five years ago and usage discontinued within a matter of months because of non-payment.  

They are seeking $5,222.74 plus costs.  The only evidence they provided was an "affidavit of indebtedness" that doesn't denote when the Chase account was established, proof it was taken out, etc.

I am at a loss here.  I think we have a case because the card was taken out just before our daughter was born, and actually when I think about it may be closer to six years.  Since I don't have the last bit of activity on the account with Chase, I don't know if they are within their right to sue or not.  

I can't afford thousands of dollars in legal aid, and I don't know if I can contact an attorney to start the bankruptcy process to halt this or not.  Searches for Unifund Partners has pulled up some disturbing information - I don't know if they "play fair" or if they will make life "interesting".

Answer
Unifund is very busy these days. They buy up old credit card debts and file suit, obtain judgement, and collect their money, sometimes beyond the statute of limitations. They get away with it because most people don't know about the statute of limitations or other collection laws and they putt their heads in the sand and do not fight back.

I would need to know what state you are in the determine the actual SOL. You can get the date of last activity from your credit reports. The date of last activity is the date of last payment or charge on the account. This is the basis for the SOL. If you are beyond the SOL you need to write the courts and make them aware of the SOL and ask them to dismiss this case. If you are still within the SOL and the debt is valid you should still go to court and ask them to prove their case and produce documents showing you owe the money and that their accounting is accurate.

I can tell you now that their attorneys are aggressive. They put on a good show and try every legal maneuver they can to frustrate your defense. The problem is most people cannot afford an attorney and these types of cases are not cost effective for you to hire an attorney anyway. Why spend $1500 to hire an attorney on a $2000 or $5000 debt that ultimately you owe. Financial hardship is not a legal defense so they will usually get their judgement.

Don't let them win by default by not showing up. You have a right to interrogatories just as they do and this is part of the process. They will probably send a questionnaire asking all sorts of questions, many you do not need to answer. It is their responsibility to prove you owe the money, not yours to prove you don't.

You may need to at least seek legal advice before responding to the courts. Ultimately they will get their judgment but you may be able to get the debt reduced as well as the interest. You may also want to offer a lump sum settlement before it gets to the courts.

Bnakruptcy can stop the suit so if things get out of hand talk to an attorney abouot this option.

Good luck to you.

Mike