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Brent Blanchard
Brent Blanchard, Bankruptcy Attorney
Category: Bankruptcy Law
Satisfied Customers: 1927
Experience:  Twelve years experience in all aspects of debtor & creditor BK.
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Hello. June 2008 I was served a summons that I was being sued

Customer Question

Hello. June 2008 I was served a summons that I was being sued for over 13,000 for an unpaid debt. The debt is from citi which was written off by citi 12/04 and then purchase by a junk debt buyer Unifund. Last June I was served a summons that I was being sued in court for this. I responded to this summons which I
did have notorized and sent certified to the lawyer and the courthouse. I have good records from when I made my last payment, including the bank statement from that month. I made my last payment 5/26/04 but on the summons the lawyer has my last payment being made on 6/17/2004. Which is not when it was made. I am also questioning how the amount of the debt is above 13,000. when in 2008 on my credit report it was just over 5,000. Now I sent my response before the limit was up and they could file judgement but did not receive anything until 12/09. Why would they wait so long and can they do this if the SOL has passed. (ast payment to cc 5/26/04 lawsuit filed 6/03/08.
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  Brent Blanchard replied 5 years ago.
I'm willing to bet that whatever was in "I responded to this summons which I did have notorized and sent certified to the lawyer and the courthouse." was not a properly-formatted Answer to the Complaint and did not allege adequate legal defenses (if you even had any) to the claim for $13K. Under PA's rules of civil procedure, not getting the right paperwork filed can lead to a "default" and a "default judgment"...although this is NOT supposed to happen without at least one notice of what's going on being mailed out, I've seen cases where the mail was mis-addressed, a room-mate put the letter in a place so safe that no one found it, a room-mate threw the mail away, the person being sued accidentally tossed it out with the junk mail, or the person being sued didn't understand what it meant or set it aside and forgot about it.

You have multiple questions here. I'll try to get them all.

1. The statute of limitations STOPS running when the plaintiff files the lawsuit. Your last payment 5/26/04 was probably credited internally by their accountants on 6/17/04. That discrepancy in the date doesn't help because the last date of breach (for an "open account" like a credit card, that starts the SoL) results in the 4-year SoL not ending until May or June of 2008. The breach is not the date of the last payment, but the date of the first missed payment.

The SoL stopped when the lawsuit was filed, not a week or 120 days later when the summons is served.

Whether the payment was DUE on or before 6/17, 6/2, or 3/26 of 2004, exactly when payments are deemed received (I've never seen one in 20 years that used the postmark date, for example), and whether the credit card company had a right to declare a "default" for late payment(s) before or after 6/2/04 does not really matter, though, because on an open account like that the last breach was the first MISSED payment. That would have unquestionably been no earlier than the payment due date in June 2004, and most likely July.

2. The debt on credit cards grows at a huge rate once a person skips a payment or three. Your credit card agreement, if like every other one I've seen over the last ten years, probably included late fees of about $39.00 which could be added every month after June 2004. Then there is the "default rate" of 24.9 or 29.9% per year, added to the original balance and the late fees. Then there are the costs and attorney's fees of trying to collect on the debt, which can start racking up before the lawsuit is even filed.

3. The junk debt buyer gets all of the rights of the original creditor. Now, if the original creditor "wrote off" the bill years ago, but did not sent you an IRS Form 1099 showing "income" as "forgiveness of debt", then they still had the right to go after you. Writing something off is mostly an internal accounting measure which tells their shareholders that they don't think the debt is collectible and aren't trying to get it---for now. The write-off is NOT a defense to the debt.

4. Credit reports usually report the ORIGINAL account debt as of the last transaction, not the late fees, charges, additional interest, and other ways to jack up the bill described above.

5. Some clients and/or attorneys intentionally let default judgments sit for at least six months before trying to collect on them, to trigger a little rule of civil procedure which prevents the defendant from taking the lawsuit back to the beginning under a judgment "set-aside" rule which allows that for "inadvertence", "excusable neglect", and a few other reasons. There's usually a six-month time limit for that.

Creditors also can wait a long time before deciding which debts to sue on, they take some time to get through their list of accounts to sue on, and they sometimes don't sue for a long time because the accounts have been re-sold a few times and they are the third or fourth owner of the bad debt account portfolio.

BotXXXXX XXXXXne: Even if you can get the judgment declared "void" for lack of notice, I don't see any defenses here that would help once the lawsuit clock is run backwards to the beginning so you can meaningfully participate in the proceedings and lodge a vigorous defense. It would delay collections efforts for a few months, rack up the debt collector's attorney's fees a lot more, and cause you a lot of aggravation. There is a remote chance that some non-legal or "equitable" defenses like Laches (unreasonable delay in filing lawsuit which misled you to believe they had given up on the debt) which might be worth trying if you have the willpower to see this through.

Thank you.


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Brent Blanchard
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