Expert: Creditwrench - 6/30/2008

Question
QUESTION: Hello, I received a summons from Midland Funding for a Providian credit card that I do not believe that I owe. I filed chapter 13 back in 1999 and I lost the papers but I have requested the papers from the Federal court. I am not sure if this card was included with my chapter 13. How should I respond to the summons? I pulled my credit report and see nothing for any Providian account.

ANSWER: The first question has to be what state you live in.

Even though you may have included it in BK the greater chances are that the debt is well beyond the SOL for almost any state. One or two have very long statutes of limitations.

The BK angle might prove interesting in any case because if you did include it in your BK then they are guilty of contempt of the BK court on top of being out of stat. You can complain to the BK court as well as
filing an out of stat defense which is plenary and cannot be defeated so long as you can prove when you made your last payment to the creditor.

If they are out of stat then you could also file a federal case against them for misrepresenting the legal status of the debt which I would very much like to see you do.

These debt collectors who bring out of stat cases against consumers need to be taught some hard lessons.




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QUESTION: Thank you for responding so quickly you are AWESOME!!!
I now live in Ohio since 08/2006. I used to live in Florida and that is where my BK was filed.

ANSWER: Statute of limitations on credit card debt is 6 years according to Bankrate.com. They are probably the best for getting such information that I know of but I don't fully trust even them anymore since I have caught them making mistakes too. I don't fully trust anybody on line. Check out the Ohio statute of limitations by going to an actual government web site where all the statutes are listed and you will be able to get the real truth that way.

Ohio law is what will prevail and not Florida law because you don't live there any more. If the actual statute of limitations is 6 years in Ohio then they are beyond the SOL and you should present a statute of limitations defense to the complaint and then take them to federal to teach them their hard lesson.

---------- FOLLOW-UP ----------

QUESTION: Hello again, first I want to apologize for sending you such a loooong question. I am not sure if I will get my BK records from  the archives in time to respond to the summons using that as a defense and the deadline is 7/9/08. I am trying to draft a letter to respond and buy some time. I am not sure if my response is correct. Do I have to respond to each paragraph individually? There are only 5 and can I use the same response for all of them? In their paragraph 4 they say they notified me, but the only thing I ever got from Midland Funding LLC was the summons!!! I copied the format of the summons header info with the case number and all. Once I finish the response I am going to send a copy toe the court and one to the plaintiffs attorney and one to Midland all by certified mail.
This is what I want to use : RESPONSE TO PRELIMINARY ALLEGATIONS

1.  Answering paragraph 1-5, defendant is without sufficient information or
belief to admit or deny the allegations in these paragraphs. Based on this
lack of information or belief, defendant denies the allegations.

In your opinion is that okay to do and do I need to say anything else or request a signed copy of an agreement of the credit card or say that I want a court date to defend myself?

The summons paragraphs say:
1. Plaintiff acquired, for a valuable consideration, all right, title and interest in the credit card debt set forth below originally owed by Defendant to Providian. As a result of the assignment, plaintiff became and now is entitled to recover the amount loaned to defendant on credit card #xxxx
2.There is presently due the Plaintiff from the defendant for money loaned on defendant's charge card the sum of 1,887.27
3.The account records are not attached hereto because, upon information and belief: (a) plaintiff is not the original creditor and does not have possession, custody or control of said records; (b) copies were sent monthly to defendant and are or were in defendants possession,custody or control; (c) said account records may be voluminous.
4.plaintiff notified defendant of the assignment and and demand that defendant pay the balance due, but no part of the foregoing balance has been paid.
5.defendant is in default on this repayment obligation.

Wherefore Plaintiff prays for judgment against defendant in the amount of 1887.27 w/statutory interest from the date of judgement, cost of this action and such other and further relief as the court deems just and proper under the circumstances.

I really want to thank you for all of your time and help. You truly are a wonderful soul.

Answer
Why present a weak argument like that when you have a statute of limitations defense at your disposal? SOL defense tops anything you plan on doing above. If you don't argue it you lose it and it makes them prove that they filed in time.

The answer you outline is just asking to lose and get a judgment against you. File an out of stat defense and let them sort it out if they can.

Don't be foolish and lose the most powerful defense you have available to you.