July 8th, 2021
Question: Five years ago I ceased paying back my debt on a particular credit card. Thereafter I heard nothing from the creditor, other than to learn that it had “written off” its claim when I saw that on my credit report. I just got sued by a collection company on the claim, which now has considerably increased the amount due to annual 10% interest. Someone told me that old debts can’t be sued upon due to the “statue of limitations.” What should I do with the summons and complaint that I just received?
Answer: First of all, it’s true that old debts may become unenforceable due to the passage of time, i.e., barred by the 4-year statute of limitations. (It’s a rule, not a monument!) Don’t feel bad: many people call it a “statue,” mispronouncing or misspelling it. That the claim was “written off” by the creditor may be no defense for you, for there probably was no consideration you paid for that concession. It’s best if you have an attorney deliver a letter to the collection agency, arguing that suit against you was filed too late, i.e., more than 4 years after the first day you failed to make your last monthly payment on the account. The attorney’s letter ought to demand that he or she receive a copy of the credit card contract upon which the claim is being made: oftentimes the collection agency never received it from the creditor, and the creditor no longer has it or can’t find it, so there’s no agreement in evidence to enforce! If it was a company credit card, there’s no record you ever signed it or guaranteed to pay the company’s obligation. Or the collection agency doesn’t have a copy of the creditor’s record of payments received on account, so the collection agency can’t prove that your breach occurred within four years before the suit was filed against you.
If the suing credit card agency’s attorney won’t dismiss the case, your good attorney may be able successfully to demur to the complaint, to contend that it is defective on its face for failing to attach a legible copy of the contract to it, or that the complaint itself says the date of breach was more than four years before the case was filed. If the credit card agency can’t amend the complaint to correct such defect or defects, the court will sustain your demurrer without leave to amend, i.e., dismiss the case against you. You’ve successfully used the statue, – I mean the statute, of limitations to defeat the belated claim against you, i.e., the rule of law, not a pile of bricks.
Disclaimer: This article is intended for general educational purposes only and its contents should not be used except by a competent attorney familiar with the facts of your case. Attorney Pete Wittlin may be reached at (949) 430-6366 and at firstname.lastname@example.org.