Author Topic: SOL documentation for adequate defense  (Read 556 times)

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Ranger

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SOL documentation for adequate defense
« on: August 19, 2014 07:37:00 PM »
What would be admissible in court when an account is way past SOL? 

I have an account that is way past SOL (2008) and now getting JDB dunning letter.  The only thing I have is that I remember that I defaulted in that same year and I didn't pay anything after that. 
I don't have it reporting on any of my credit reports.

So my question is how do you adequately protect yourself? 
How do I obtain proof that my account is way past SOL?

BellEbutton

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Re: SOL documentation for adequate defense
« Reply #1 on: August 19, 2014 07:54:19 PM »
You don't need to prove anything unless they sue you or you sue them.  If they were to sue you, they'd have to provide a date of last payment.  Then you'd just use your bank records to show that you didn't make that payment.  You'd also counterclaim for a violation of the FDCPA for suing you on a time-barred debt.

credit_h

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Re: SOL documentation for adequate defense
« Reply #2 on: August 19, 2014 07:57:45 PM »
You would need to show evidence of when you last made payment.

On my credit report, a TL shows last payment of 09-20-2009. I have credit card statements for September 2009 showing payment made, October 2009 statement showing no payment made and past due, November 2009 statement showing no payment made and past due. I also have a hard copy of the credit report showing the last payment date.

This kind of documentation should be sufficient.

credit_h

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Re: SOL documentation for adequate defense
« Reply #3 on: August 19, 2014 07:58:42 PM »
You don't need to prove anything unless they sue you or you sue them.  If they were to sue you, they'd have to provide a date of last payment.  Then you'd just use your bank records to show that you didn't make that payment.  You'd also counterclaim for a violation of the FDCPA for suing you on a time-barred debt.

Bank records may be incomplete though, they could argue you sent in a money order or used other forms of payment.

BellEbutton

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Re: SOL documentation for adequate defense
« Reply #4 on: August 19, 2014 09:07:00 PM »
Bank records may be incomplete though, they could argue you sent in a money order or used other forms of payment.

Let them argue it. 

First, the JDB would have to provide some sort of evidence of a payment such as a credit card statement.   No statement, no evidence.  The defendant's bank records would more than suffice to show that no payment was made on the date claimed by the JDB but for which the JDB has no evidence.

If a credit card statement reflecting a payment is provided,  the defendant denies making the payment by any means and provides his bank records that don't show a payment.   

credit_h

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Re: SOL documentation for adequate defense
« Reply #5 on: August 19, 2014 11:55:43 PM »
The defendant has to prove their own affirmative defenses. Does the defendant have evidence that shows the last date of payment?

It's very possible that a person has 2 or more bank accounts, just the bank statements alone would not be enough IMO unless the defendant has been using the same bank account to make payments every month.

BellEbutton

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Re: SOL documentation for adequate defense
« Reply #6 on: August 20, 2014 02:16:43 AM »
The defendant has to prove their own affirmative defenses. Does the defendant have evidence that shows the last date of payment?

The plaintiff also has to prove their allegations. 

Quote
It's very possible that a person has 2 or more bank accounts,

If the defendant has more than one bank account, he could present evidence from a 2nd bank account, as well.  But if he doesn't or didn't have a 2nd bank account, he can't prove what never existed.   He denies it in his affidavit.

Quote
just the bank statements alone would not be enough IMO unless the defendant has been using the same bank account to make payments every month.

If the judge felt it was necessary, the defendant would provide enough copies of bank statements to show that he made payments on a regular basis from that one account which would also show a payment on the date he claims is the last payment.

The point is that if the defendant presents credible evidence that he did not make the last payment, the plaintiff would have to do more than speculate as to how a payment could have been made.

In the OP's case, if a JDB were to claim that a last payment was within the SOL, it would seem they would either have no evidence, or they'd have to create a fake document.


credit_h

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Re: SOL documentation for adequate defense
« Reply #7 on: August 20, 2014 02:51:56 AM »
The plaintiff also has to prove their allegations. 

If the defendant has more than one bank account, he could present evidence from a 2nd bank account, as well.  But if he doesn't or didn't have a 2nd bank account, he can't prove what never existed.   He denies it in his affidavit.

If the judge felt it was necessary, the defendant would provide enough copies of bank statements to show that he made payments on a regular basis from that one account which would also show a payment on the date he claims is the last payment.

The point is that if the defendant presents credible evidence that he did not make the last payment, the plaintiff would have to do more than speculate as to how a payment could have been made.

In the OP's case, if a JDB were to claim that a last payment was within the SOL, it would seem they would either have no evidence, or they'd have to create a fake document.

Still, the defendant has the burden of proof if they want to use the SOL as an affirmative defense. Can a defendant show evidence of last payment and would those evidence be enough to convince the judge? If the defendant does not use the bank account to regularly pay that creditor, any bank statement used as evidence would not have much weight and they would need to find other types of documentation to support their defense. Naturally, I think credit card statements in the months immediately following the alleged last payment date would be very strong evidence.

BellEbutton

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Re: SOL documentation for adequate defense
« Reply #8 on: August 20, 2014 03:35:53 AM »
Still, the defendant has the burden of proof if they want to use the SOL as an affirmative defense. Can a defendant show evidence of last payment and would those evidence be enough to convince the judge?

The defendant can only show what he claims is the date of last payment and that the payment claimed by the plaintiff was not made. 

Quote
If the defendant does not use the bank account to regularly pay that creditor, any bank statement used as evidence would not have much weight and they would need to find other types of documentation to support their defense.

That's different.  At that point, the defendant may have a problem.  I've been talking about defendants who make payments from their bank accounts.

If an account is truly outside the SOL, the plaintiff will either have to provide false documentation or a credit card statement that is contains a payment that wasn't made because the OC made a mistake.   Once a defendant has shown that he made payments from his bank account and that the payment claimed by the plaintiff is not there, it's up to the judge to determine if the defendant has proven his defense.  Any other claims by the plaintiff about how a payment might have been made are for the plaintiff to support.   The judge makes his decision based on who has the best evidence.

« Last Edit: August 20, 2014 03:44:27 AM by BellEbutton »

Brunothe JDBKiller

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Re: SOL documentation for adequate defense
« Reply #9 on: August 20, 2014 01:56:01 PM »
If they do sue, you would resolve this with a simple discovery request. Also, in some states it is required that they inform you that the debt is past the SOL.

Also, in some circuits it is an FDCPA violation to send a collection letter on an out of SOL account. You may already have enough to sue them.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Ranger

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Re: SOL documentation for adequate defense
« Reply #10 on: August 20, 2014 02:08:21 PM »
I'm in Texas.  How do you look up that information for our Circuit?

Am I correct in understanding that for debt there is SOL of 4 years for the state before Credit Card Agreement?  (Chase Bank.)
« Last Edit: August 20, 2014 02:13:04 PM by Ranger »

Brunothe JDBKiller

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Re: SOL documentation for adequate defense
« Reply #11 on: August 20, 2014 02:59:09 PM »
Most of us use Google Scholar for research. You can select the courts and circuit you want to look at. TX is the Fifth Circuit.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

HeadsUp

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Re: SOL documentation for adequate defense
« Reply #12 on: August 20, 2014 04:31:16 PM »
Ultimately it would come down to discovery and your own records if they took it that far.

I personally don't let it get that far if I can head it off at the pass by discouraging them from suing me by mentioning the statute of limitations and 1692e in my first DV letter to them, and letting them know I will countersue them for $1000 + attorney fees and court costs if they file a time barred lawsuit against me. I think that discourages them from suing me.
Finally a collector admits it...

"The reality is that there are people who can't pay and the job of an agency in my opinion is to separate those who can and those who cant and to not waste resources and efforts on those who cant." -- Dr. Evil.

All this nonsense about aggressive judgment enforcement against someone with no assets is just that-- utter nonsense.

http://www.debtorboards.com/index.php?topic=13309.msg100303#msg100303