statute of limitations not work?

[junker]

there have been so many posts about people being sued even though they are clearly past the sol, i know there are issues about which states sol would prevail, i.e. the cc company or your state sol,and if it is a written contract or open contract. if your state has a 4 yr sol, and the cc company is based in a state where it is 8 yrs sol would also be a issue. i was wondering if anyone used just the sol defense and lost based just on that defense. Can a judge ignore state statutes? i mean it seems so clear, if a state says 5 yrs and you are at 6 yrs, you simply can not lose, but obviously by the posts here of people being sued past the sol,this isnt the case, many have said it is a defense, but is it absolute? can a judge override the law? can he say even though you are past the statute i am going to ignore it ? even in my case which i posted earlier, i had a sol defense but my attorney used other defenses as well, so i am not sure which one the judge thought was relavent. and why would a rational jdb attorney invest $255 plus my attorney fees knowing that i had a sol defense? i know they hope you dont show up, but isnt that a risky and expensive chance? will someone please enlighten me here and tell me what i am missing, besides bad spelling.

[emoney]

You can lose if you do not defend yourself by filing an answer to a LS, or the judge may make a mistake. They after all are human too.
regards,
emoney

[junker]

You can lose if you do not defend yourself by filing an answer to a LS, or the judge may make a mistake. They after all are human too.
regards,
emoney

If you do everything properly, and have a valid defense of sol,and answer the lawsuit, can the judge override state statutes? even if other issues are raised, as long as no fraud is involved, is the judge bound by the statutes to dismiss

[magyar123]

Personal opinion: If the judge has a financial interest - stockholder/such in the plaintiff's case, you're screwed. He/she would side with that creditor, and deny your SOL expiration defense. Money talks, even in the judicial system.

[HHM]

I think you are confusing the issues a little...

The plaintiff can SUE someone even though the case is outside the SOL. If the Defendant does not show up to ASSERT the SOL Defense, then the plaintiff wins.

The statute of limitations, for the most part, is an "affirmative" defense. Meaning, the only way to claim it, is for the defendant to respond to the lawsuit. (personally, I think attorney's that bring claims that are beyond the SOL, should be sanctioned if they knew or should have known the claim is invalid. I think an attorney is acting in bad faith to the court by bringing expired claims, but that is another matter).

Judges can make errors...but they rarely deny a valid SOL defense. Also, the creditor has counter arguments to the SOL defense (regarding when the SOL clock starts to run...i.e. when was your last payment, have you actually affirmed the debt, etc).

As far as I know, anyone with an SOL defense on this forum, that decided to defend their case (vs simply filing BK), has won. Keep in mind, most people simply end up filing BK instead of doing an SOL defense, usually because they have other debt issues etc that are still within the SOL. Also, the only time you can claim an SOL defense is if you are actually sued. The SOL defense really doesn't help much for non-judicial collection efforts unless you are willing to bring the collector to court for an FDCPA violation. And even then, the debt will simply get sold to the next creditor who will start-up collection again.

[jp2861]

The reason you hear of folks getting sued beyond the SOL is because they failed to acknowledge the situation. You simply can't run and hide or ignore these problems. Too many times I see advice given here to ignore creditors. That's just not good advice! Like previously posted, the SOL is a workable defense, in most cases. But it only works if the debtor is aware of it, and takes the appropriate actions. Those that choose to ignore what's happening will be pulled out from the rock they crawled under.

If you're delinquent it would be wise to study up on the process. Folks can save themselves alot of grief by learning how to respond, and their local statutes.

[chpxiii]

Too many times I see advice given here to ignore creditors. That's just not good advice!

It is good advice depending on the situation. The only times on here on this forum I have seen people tell others to ignore a creditor is when the debtor is already taking action - i.e. filing bankruptcy. All other times, I have seen appropriate suggestions given and have seen debtors told NOT to just ignore the creditor.

It really depends on the situation. I've even seen NO advice or suggestions given but questions asked to get a fuller understanding of the situation before suggesting a course of action.

[HHM]

The reason you hear of folks getting sued beyond the SOL is because they failed to acknowledge the situation. You simply can't run and hide or ignore these problems. Too many times I see advice given here to ignore creditors. That's just not good advice! Like previously posted, the SOL is a workable defense, in most cases. But it only works if the debtor is aware of it, and takes the appropriate actions. Those that choose to ignore what's happening will be pulled out from the rock they crawled under.

If you're delinquent it would be wise to study up on the process. Folks can save themselves alot of grief by learning how to respond, and their local statutes.

True enough...but to be fair, I don't think we have given the blanket advice to "ignore creditors". That advice is context specific. For example, if you get sued, but have already decided to file BK, there really is no reason to respond to the lawsuit. But your right, people cannot hide from the problem indefinitely...at some point action must be taken.

[keepmine]

Junker,

The object of the execrise is to win. Does not matter what argument you make as long as it's the winning argument.
The lawyers I know that handle these dort of cases will try and give the judge every reason to rule in their clients favor.
They do this for 2 reasons. In some instances, the SOL may not be cut and dried. The collector may try and introduce evidence showing different dates. You want the judge to have other issues to consider. The other reason is, to let the plantiffs lawyer know we're going the long way here. You're going to lay waste to an old growth forest by the time all the motions and replies are filed. Let'em know fast that this is gonna be expensive and timeconsuming. They may well drop it like your creditor did and go in search of easier prey.
In my county, lawyers are winning on the chain of custody-assignability issue. Can you prove you have standing to sue? Often times, the paperwork on a sale of a debt from one collector to another is incomplete. Just a batch of thousands of files change hands {usually electronically} with no specific proof that your debt was one of them.
Of course, this applies to old debts that have circulated through a few collection agencies. Fresh chargeoffs where the OC sues or, only one debt collector has ever had the account is a different story.

[junker]

thanks everyone, i understand a little more now, in other words, they can and obviously do sue at any time regardless of sol, basically hoping you dont defend yourself, so they can get a easy judgement, as my case pointed 90% easy victories for them. also the more defenses you have, the better. my concern was, is the judge bound to uphold the sol, if no other issues cloud the case. say ten years from last payment, and covering just about every states sol, does he have any valid argument not to grant dismissal. the reason i ask, is for now i am judgement proof, and 5 1/2 years since last payment of debts. they were apparantly sold to different jdb buyers recently and have had a influx of calls about the old debts. so this can continue indefinitely and they can sue at any time (10 years later) and hope you dont show, and get a judgment. so unless i file bk and rid myself of this old debt, it could live on as long as i do.

[keepmine]

If the SOL is valid, the judge should rule in your favor.
Personally, I'd not file bk if I had a valid SOL defense. You need to get proactive and head some stuff off at the pass.
www.creditboards.com and www.creditinfocenter.com are 2 very good sites that deal with collection matters. Often, debt collectors will violate the FDCPA in their attempts to collect. Use that to leverage a deal where they'll extinguish the debt in exchange for you not filing a lawsuit.

[jp2861]

It is good advice depending on the situation. The only times on here on this forum I have seen people tell others to ignore a creditor is when the debtor is already taking action - i.e. filing bankruptcy. All other times, I have seen appropriate suggestions given and have seen debtors told NOT to just ignore the creditor.

It really depends on the situation. I've even seen NO advice or suggestions given but questions asked to get a fuller understanding of the situation before suggesting a course of action.

To a point true enough. The reason I wouldn't ignore it, even if I'm filing, is I'd much rather take my chances that a CA gives up knowing I'm filing, than for them to unknowingly resell the debt. Some collectors are doing good business. Others will claim they just bought the debt and didn't know you filed. Part of it could be timing, part of it could be dealing with dirtbag collectors. It's just me, but I make it known to all of them that I'm aware of the situation and give them my lawyers information. Folks here can read posts and make a determination for themselves. I'm not saying my way is the way to go, I just don't believe ignoring the problem is the way to go.

[jp2861]

thanks everyone, i understand a little more now, in other words, they can and obviously do sue at any time regardless of sol, basically hoping you dont defend yourself, so they can get a easy judgement, as my case pointed 90% easy victories for them. also the more defenses you have, the better. my concern was, is the judge bound to uphold the sol, if no other issues cloud the case. say ten years from last payment, and covering just about every states sol, does he have any valid argument not to grant dismissal. the reason i ask, is for now i am judgement proof, and 5 1/2 years since last payment of debts. they were apparantly sold to different jdb buyers recently and have had a influx of calls about the old debts. so this can continue indefinitely and they can sue at any time (10 years later) and hope you dont show, and get a judgment. so unless i file bk and rid myself of this old debt, it could live on as long as i do.

Yes, you got it. Even if the SOL has expired some will still prey on folks that don't know about the SOL or their rights. They will still try to get money out of the unknowing using various tactics. But, the system is not foolproof either. Even if someone files years later, who knows who has the debt in their portfolio. They may still try to collect even after you filed. There are even instances of a debt being in two different companies portfolios at the same time. They may not know you filed until after they pursue you. What happens if you moved and they send their letters to your last known address? You'd never know you were being sued on a debt you filed for, until they got a default judgement. It definitely isn't a perfect system.

[junker]

so, if it wasnt for the help of this forum and the knowlegable posters that help us, we who have been sued, and have absolutely no knowledge of the legal system and most dont even know where the small claims courthouse is in their town,most also dont know what a motion to dismiss, or claim of unjust enrichment is or the other stuff they sue you for, are supposed to put together some sort of defense in legaleze form to present to a judge that is the authority on law and has a vast library of books at his disposal and knows all the statutes, civil codes etc. and could tell immediately if you are wrongfully being sued, if he chose to.now we have to defend ourself against the jdb or ca attorney that knows fully that he has no case if you present it correctly, he knows exactly when you stopped paying the cc, when the statute starts, knows he doesnt have required papers ie. original signed contract, exact amount due, etc. in other words hes hoping you dont show or defend your self so he can get a judgment from you, that legally HE shouldnt be entitled to according to the sol.and they know it. yes i think i understand much more now.

[FreshLikeADaisy]

Yes, junker, you're right. I am reading where these scumbag collection agencies and attorneys are starting to get sanctioned (finally!) because a judge here or there is tired of having his orders flouted. (For instance, instead of showing requested proof at the judge's request, like ownership of a debt, they instead immediately move to dismiss.) But it's still just a drop in the bucket, and not enough to deter these slimebags even when huge fines are levied, because that kind of judicial disciplinary action is still just too rare.

Me, I'm still wondering how it is legal for an OC to ***sell*** a debt that is either a) in bankruptcy (and therefore under the automatic stay), or b) discharged by bankruptcy. In a) the sale of the debt is STILL an attempt to collect the debt, regardless of whether that attempt is made in the general direction of the debtor; and in b) it's one thing for a junk debt buyer to knowingly purchase a discharged debt (slimy enough) but quite another for the OC to sell it, because whether the buyer knew it or not the seller damn well did. In both scenarios the only party with an actual claim is the buyer of the junk debt, but it seems to me that the sale of a debt that the OC ***KNOWS*** is in bankruptcy or discharged is illegal in and of itself, in the same way that buying and selling stolen property is. I don't have the legal knowledge to know what it's called when people transact knowingly "invalid" property claims, but it has to be in the law somewhere.

Ah well. Just wondering.