Ask Pete: What should I do with the summons and complaint from creditor I just received?

Pete,

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 a credit report.  I just got sued by a collection company on the claim, which now has considerably increased the I amount due to added 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 from creditor 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 four-year statute of limitations.  (It’s a rule, not a monument!)  Don’t feel bad: many people call it a “statue,” mispronouncing it.

That the claim was “written off” 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 the suit against you was filed too late, i.e., more than four years after the first day you failed to make your last monthly payment on the account.

The attorney’s letter ought to demand to 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 agent can’t prove that your breach occurred within four years before 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.     

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Disclaimer: The information herein contained is intended to be for general education purposes only, and should not be relied upon without the advice of an attorney familiar with the facts of the real-life situation.