Author Topic: Do I have to file an appearance in Cook County Small Claims before filing motion  (Read 2618 times)

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biffster7199

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No howucantoo (and others who've asked) this  "zombie" was inadvertantly re- awakened( Arrggh!)  :vbkeule:so S.O.L. defense is not available to me  :(

Bruno the JDB Killer

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Only one court has found a violation of the Act in the absence of an express threat of litigation when a creditor attempts to collect on a time-barred debt. See Stepney v. Outsourcing Solutions, Inc., 1997 WL 722972, *4 (N.D.Ill.)(FDCPA claim stated where collection notice promised "no further collection action" if the time-barred debt was paid).

Some decisions have even gone further than Kimber and held that merely attempting to collect on time-barred accounts, even without litigation, or the threat of litigation, may violate the FDCPA's prohibitions against false or misleading communications. Taylor v. Unifund, 1999 U.S. Dist. LEXIS 13651 (N.D. Ill. 1999).
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Bruno the JDB Killer

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No howucantoo (and others who've asked) this  "zombie" was inadvertantly re- awakened( Arrggh!)  :vbkeule:so S.O.L. defense is not available to me  :(



What happened, you make a payment and restart the clock?

When calculating the statute of limitations, exclude the first day and include the last, unless the last day is Saturday, Sunday or a holiday, and then it shall also be excluded (5 ILCS 70/1.11). If the debtor makes another payment after default, it will extend the statute of limitations and restart the clock -- provided it is made within the original statutory period.
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howucantoo

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In Cook you won't have to go in front of a judge. On the 11th floor you see a clerk (A nasty guy ) he'll ask you questions about your job, income, etc. after you fill out the waiver application. He'll then go back and gets a signature and hands you the application.

B/c cook county serves a big population of the city and south , you'll see a variety of people there. When I lived in the vicinity and had to appear in court , I used to be asked for help, I assisted many people find their way around the courthouse every time I was there. There were elderly and some who couldn't understand the legal jargons or didn't know what court room to go to or where was the notary, things like that.
I remember once I babysat a little girl (for few minutes) until her mom went to court and back. I had spent a lot of time there. I hate that courthouse.
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howucantoo

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What happened, you make a payment and restart the clock?

When calculating the statute of limitations, exclude the first day and include the last, unless the last day is Saturday, Sunday or a holiday, and then it shall also be excluded (5 ILCS 70/1.11). If the debtor makes another payment after default, it will extend the statute of limitations and restart the clock -- provided it is made within the original statutory period.

We woke up a zombie LOL ^^^
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Bruno the JDB Killer

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Go back to babysitting. I bet that kid still has nightmares. It would help if we knew why he thinks this is not beyond the SOL when at first he said it was.
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biffster7199

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Well Bruno I never actually said the debt was beyond the Statute of Limitations, I merely implied it , to some, by using the phrase Zombie debt. I used that phrase because the original debt was over 10 years old  and ALMOST SOL.   Yeah,  stuff happens soooo bad news can't have the suit thrown out as "time-barred" debt,  Good News the debt WAS SO OLD even the OC admitted they no longer had records on it! Not that that alone stops some JDB's from trying their best to collect on it; hence my using a Sec 2-615.

Now a question for howucantoo please:  Does "legal action" toll the Statute of Limitations in Illinois to the best of your knowledge? 'cuz this debt is not too far away ( well several months) from yet another 5 yr period with NO ACTIVITY. Thanks! 

Bruno the JDB Killer

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Once they sue you within the SOL, it is no longer a factor in all 50 states, UNLESS the case is dismissed and they do not re-file within the original SOL.
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biffster7199

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OK Thank you for that info Bruno.

CleaningUp

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Filing your motion, whatever it might be, I believe, constitutes filing an appearance as would requesting leave of the court to file one.


biffster7199

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Oh didn't think of that. Thank you Cleaning Up.

I've attached a sample Motion I found online from Illinois Legal Aid that pretty much covers everything regarding my specific case, right down to the plaintiff being an assignee of an assignee. The only difference being that I cannot argue the debt is time-barred. 

howucantoo

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in Cook county you must file your appearance before 9:00 am of the return date/due date on the summons or (SJ) is foreseen. Motion does not constitute appearance according to Cook county local rules.

Motions in SC court are granted only by leave to file a motion "instanter". That means you must get court's permission to file MTD or whatever it is.

That legal aid's motion has been around Cook county for a long time , I believe judges already know this motion from internet.

 
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gwheelock915

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Please tell me that this is Mudland?!

Bruno the JDB Killer

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Who was the OC? Most of the agreements are available either here or on line. Since it is a JDB, arbitration will usually make them disappear if the agreement has it.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

biffster7199

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Thanks Bruno for the suggestion, was originally hoping to do that myself but unfortunately, like many, the cardholder agreement has a small claims exemption. NBD I can almost guarantee the JDB has NOTHING on this but my name and an alleged amount that is nowhere near anything imaginable I might have had.  After I win I will have to see what my options are for "returning the favor". 

Let me just take a minute to thank ALL THE POSTERS who have taken the time to offer well-intenioned suggestions ESPECIALY   howucantoo and yes, you too Bruno, as well as Cleaning Up and many others! All of you people are AWESOME!!

 

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