Expert: Creditwrench - 7/11/2009

Question
QUESTION: Hi. I have received a complaint and summons that was filed with the court in May by Asset Acceptance LLC concerning a credit card I had several years ago. They want $3,930 on a $1,500 limit card. I was served on June 29th. The summons has given me 20 days to respond.

I live in Washington State. I suspect that the Statute of Limitations has expired at time of filing. It is 3 years here for credit cards. My credit report goes back to August of 2006 and shows no payments and so I ordered bank statements from the bank for the 6 months before that date since I can't locate mine. I just received them and they are not the correct year so I have had to reorder and it'll be another 7-10 days until I receive them. That will place it past the time I need to file which is first part of this next week in order to reach the plaintiff within the timeframe. I am 99% sure no payments were made during this statute time but there is always that 1% in my mind thinking "What if?".

Though I remember that timeframe because we bought a home in May 2006 and I had closing costs and other expenses to pay at that time The townhome was what started getting us in over our heads. Since then I've been laid off three times and my wife was in an accident and had to have spinal surgery. So I had to pay what was immediate and this card was buried under the other debts. Which leads me to believe it is past the SOL.

My question is can I file an answer claiming SOL expiration based on my belief? I just won't get these statements before filing date and if I am in fact correct on the 3 years I don't want to allow my only defense to slip away. Any advice would greatly appreciated. Thank you."


ANSWER: Yes, you can file your defense even though you don't have the proof in hand at this time. Do you know how to prepare the defense?

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QUESTION: Generally yes. I will list as affirmative defenses that Statute of Limitations has expired and that Plaintiff has no standing. I've finished a draft of my answer and will finalize this weekend to submit to court. I have to submit by Tuesday at the latest so the certified mailing to the attorney will reach them in time. The complaint had only 6 assertions on it and 5 of them are easy to answer. One I am not sure of how to answer without violating the SOL but I intend to deny. I know you cannot answer those kinds of questions.

I really wanted to know as to filing with SOL expired since I haven't received my statements. I worried about what would happen if that 1% was correct and I had made a payment but I spoke with a legal advocate here and they said nothing would happen other than I would lose the case so if I believe its expired to go ahead and file as such.
I greatly appreciate your response. Thank you.

Answer
So you are going to claim that the plaintiff has no standing to sue? What will you do when the judge rules that the plaintiff does have standing to sue? Leave the courtroom raging mad because the judge was unfair to you? Howl that the cards were stacked against you? None of that will do you any good for the simple fact that you asked the judge the wrong question. Ask a judge the wrong question and you will get the right answer to the wrong question every time. Let me hasten to assure you that if you claim the plaintiff has no standing to sue you will lose your case. If you argue that the statute of limitations has expired you have to know the exact date that it expired and be able to prove it unless the plaintiff has proven it for you. I thought you said you know how to handle your case?  Believe me, if you proceed as you have outlined you will most likely be going home a whipped puppy.
And of course if you do lose then you probably won't know how to turn that loss into a win either. I do. I've begged debt collectors to sue me on a case that they were trying to collect because it was long ago out of SOL. They won't do it. I asked them why they wouldn't sue me for it after I told them I refused to pay. The answer was that they know the debt is out of stat, they know I know it is out of stat and they know that the only reason I was begging them to sue me was so I could file a federal case against them. So I asked them why in H they were even bothering to call if they knew they couldn't collect it and they never did again. Darn it! I do wish you luck and maybe the judge will listen to your SOL defense even if you can't really prove it but I'm betting you will lose regardless of what you argue. But one thing I can assure you of is that if you try to claim that the plaintiff has no standing to sue the judge is likely to think you are some kind of patriot nutcase and just ignore anything else you have to say. For your sake, I hope I am proven wrong. Please let me know what happens.

I see you are making another mistake in judgment. You must file within the time frame but what you file don't have to reach the plaintiff's attorney within that same time frame. That should give you at least 3 to 4 days more time to file. That's more than enough time to learn how to prepare your defense and properly present it to the court. And your credit reports aren't going to do you any good in court either. Credit reports are not legally acceptable as evidence because they cannot be verified. They are known to be notoriously lacking in accuracy. You say the complaint had 6 assertions and 5 of them are easy to answer? Why on earth would you even bother to answer them? That makes no sense at all. Quite frankly, if I were sued on an old debt that was out of SOL I would never answer anything. I'd simply prepare my defense and file that in lieu of an answer. My response would be my answer and no matter what the situation was I would never respond to any of their allegations. You do what you want but don't come back saying I didn't warn you.