Expert: Michael Brotherton - 4/8/2009

Question
Facts: I live in Texas, Law Suit from 3rd party collector is to use Delaware law, SOL is 4 years for both TX & DE, last activity “appears” to be prior to 11/04, suit was filed with the court on 2/09, this is longer than 4 years. I have entered a plea to the court claiming I am not liable for the debt.  

I spoke to a lawyer and he told me to offer a settlement, which I did.  They countered offered… and I counter offered again but have not heard back from them after repeated attempts and I’m getting the feeling they no longer want to settle.

Since it seems I may have to fight rather than settle, I’ve been doing my “homework”.  The acct was charged off on 3/05 and there was no payment for the 3-month prior (at least back to 12/04… they supplied the bills for 12/04, 1/05, 2/05, 3/05).  

My question is: Do I ONLY need to verify the last date of activity in beyond 4 years prior to filing by pulling my credit report and then petition the court for dismissal due to SOL?  Or are the bills they provided sufficient proof of no activity.

Also, what recourse does the 3rd party collectors have if the case is dismissed?  Can they still attempt to make me pay the debt?  Am I obligated in any way to pay the debt if the case is dismissed?  

Do I still need to file the “Request for Admissions”?  I ask because the 50 days time limit to produce the “Admissions” may run out prior to the court dismissing the case (there is about 10 days left).  Also, what should I be aware of when filling out the “admissions” so as to not undermine the SOL defense I hope to use?

Any advice would be greatly appreciated.

Respectfully,

-Dave


Answer
You are doing the right thing. Your motion for dismissal based on their own evidence should be sufficient for the judge to dismiss this case. However, with this being an ongoing case the plaintiff may attempt to bog you down in discovery. Just try to keep up with it and get your day in court. Give them as little as possible in the discovery process. The questions they ask may be irrelevant so state so in your response. Your credit report and their statements should be sufficient. If necessary, refile your motion to dismiss based on the SOL. The judge should have enough information to rule on this.

You may also object to their request for discovery since it is unnecessary because of the SOL. Be aggressive here and object to any procedure beyond proving SOL. If the judge does not dismiss go along with the process until you get a hearing then press the SOL issue. Be persistent with this issue.

Your response to the admissions (discovery) is to not answer irrelevant questions. State in your response why it is not necessary or relevant and submit the response to the courts. Only admit to the relevant questions and keep your responses brief. Do not elaborate on anything. Short answers only. This will help you get through the process. Also keep in mind you have a right to your own discovery and may ask them questions as well. Prepare a list of questions for them that may prove your position.

I hope this helps.

Good luck. Keep me posted on your progress.