Expert: Barnette Law Offices, LLC - 5/14/2009

Question
I am in Kentucky and am being sued for a debt that I believe to be beyond the SOL. I did use this as an absolute defense as well as the laches defense in my answer to the court.I feel very sure it is beyond the SOL.

My first issue: They answered one section of my discovery immediately with answers to the effect of, "This would call for a legal decision". Then, they politely answered the other two sections one year later and immediately asked for summary judgment. Through a mistake, they won, but I immediately explained the problem and I was granted relief. Now, 6 months later after their summary judgment was overturned, they send ME discovery.

I have to send this back to them tomorrow, but I want to make a motion to dismiss. Based on the fact that they are just jerks, but really because 1) they are creating a wider and wider time gap between me and records and 2) they are stating to the court that the last activity on the account was in Spring of 2003. I absolutely disagree and apparently they do too - they represent a totally different date on my credit report which more aligns with my stating that this card became delinquent in 2002. TransUnion reflects this debt to be removed 9/2009, 7 years after becoming delinquent. They have updated my credit report this month, so there is no mistake.

If you could possibly point me in the direction of a good solid copy of a motion to dismiss using more than one defense and help me understand this - do I have to use actual law or can I show where they are purposely dragging this out (1 year answers) and it hurts my ability to verify things they answer in discovery. (Though they did not answer anything. The only thing they have supplied are statements and an unsigned contract noting terms.)

I am so sorry for such a long story, but am grateful for any help in writing this you can offer. I want to make sure I have all my ducks in a row before I attempt this. I may get shot down, but it seems like I have a legit reason to ask. What do you think? Could I also use the FDCPA as a defense where they have represented the debt incorrectly?

Answer
Bethany:

If you already filed an Answer, which I presume you did, you cannot file a MTD.  However, you can move to strike their breach count based upon insufficient and inadmissible evidence.  In essence, raise the statute of limitation in your Motion to Strike the breach count and let them defend against it.  Use the credit reports to prove up the date of last payment.

You can assert a counter-claim under the FDCPA.

Jason Barnette
Barnette Law Offices, LLC
1800 Hayes Street; Suite 122
Nashville, TN 37203
615-585-2245
http://www.barnettelawoffices.com
info@barnettelawoffices.com