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Joseph, Lawyer
Category: Legal
Satisfied Customers: 5299
Experience:  Attorney with significant and substantial experience in multiple areas of law.
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I received an Alias Summons from an Indiana Circuit Court for

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I received an Alias Summons from an Indiana Circuit Court for a complaint filed by a lawyer of a debt collection agency. The original debt regards XXXXX XXXXX store line of credit that I opened in 2004. The attached Affidavit of Debt, signed by the affiant, states that the last payment received was in 2006 (over 7 years ago). My question is- could I respond with an Affirmative Defense stating that the plaintiff's claim is barred by the statute of limitations? I've done some research, and it seems that this type of account would be open-ended and would have a 6-year statute of limitations in Indiana. Because I am not positive whether the debt collector's claim is past the statute of limitations, I am hesitant to claim this defense in my response for fear of perjury. What would be advised? Is the collection agency obligated to confirm the type of account and whether it is past the statute of limitations?
Hello and welcome to JustAnswer.

My name is XXXXX XXXXX my goal is to provide you with excellent service today.

Yes, you are correct, the statute of limitations is six years in Indiana. Since it's been longer than that since you made a payment on the debt, the debt is time barred by the statute of limitations.

So, you can definitely list it as an affirmative defense in response to the debt.

A collection agency is not obligated to confirm this type of account and whether it is past the statute of limitations before collection efforts are made or suit is filed. In fact, it is incumbent on the defendant to bring up the statute of limitations as a defense in order to have the cause of action dismissed as being time barred.

I hope the above information is helpful.

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Thanks and best of luck!

Customer: replied 3 years ago.

Thank you for your response. It is a relief receiving expert confirmation of my research findings. I tend to "overthink" situations, and this is definitely one of them. I fear that they will find some loophole or claim that certain courses of action took place after the last payment in 2006 that would have restarted the clock on the debt. I know of no such agreement or settlement, however. This brings me back to the subject of perjury- I don't want to be charged with perjury if it turns out that the clock on the debt did restart for some reason. Does it seem as though I am in danger of that, or am I in danger of that?

Hello Kristen,

No, you are in no danger of committing perjury. Perjury has to be a KNOWINGLY false statement made under oath. First off, the statute of limitations is six years and there aren't any loopholes. And, second, even if there were, you are not responding under oath.

So, no, absolutely no danger.
Customer: replied 3 years ago.

Thank you, XXXXX XXXXX good to know. One more thing to ease my mind... I read that the statute of limitiations is different for closed-ended vs. open-ended accounts and that some creditors/collectors will classify an account as closed-ended to take advantage of the longer statute time. What's the liklihood that the creditor/colector in my case has done this, and if so, how would it affect me if I list the Affirmative Defense based on the six-year statute?

Hello Kristen,

It was a department store line of credit, so it is the same as a credit card, it can only be characterized as an open ended account, so you should have no problem even if they try to mischaracterize the debt (which they won't be able to do anyway).

The judge would see that the debt is based on a line of credit and would apply the statute of limitations. In other words, you're fine regardless.
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