I received a summons from a collection firm HELP!!!?

Question

On Friday the 13th I received a summons from a company that bought my old visa debt from 1999 and they've filed a complaint asking for my original debt amount ( $1300) and an additional $4000 in interest. I've been told that the statue of limitations in my state of Ohio is 6 years and this is no longer on my credit report. I want to fight this in any way possible!!! I know that they bought my debt from visa for PENNIES. Visa, got their money when they wrote it off on their taxes long ago. I feel no shame in refusing to pay this debit. Times are very hard for my family and we're just getting by. I just don't know how to go about it. I have to send an "answer" letter in a few weeks but have no idea what I should send. HELP!

Answer 1

I agree with latebreakfast, you might go to creditboards and do some reading (yes, "everything" on that site is free to read, use and to ask questions)

I also agree with crazyjester. It is difficult in some states to use open SOL statutes in a defense and Ohio is one of them.

The big question is IF the Plaintiff included a copy of the contract, or a reason why they didn't, in with their pleading?

If they did, you still might try going for an affirmative defense of SOL in with your answer using the TILA and the statutes crazyjester posted showing the exclusion of credit cards as written.

If they failed to include the contract in with their pleading then they have violated Rule 10 (D) (1)

(and if it were me, I sure would "NOT" be requesting a copy of the contract at this time.

Requesting it gives them the opportunity to provide it, if they had failed to do so from the start.

Providing it means a harder time in trying for an open SOL defense.

I would rather use their failure to provide it, in the pleading, against them with Rule 10 and then use the Ohio open statutes, and the TILA, as an affirmative defense of SOL)

Answer 2

If you recieved a summons from them and not from the courts, you could in turn sue them for 1000$.  There are laws against this.  They know they cannot collect the debt and are deserate to scare you into paying them.  Contact an attorney or go to budhibbs.com.  He will help you find an attorney for free.  

http://creditcardwarehouseonline.com

Answer 3

Do not send any letter.  Contact a lawyer who specializes in financial issues.  With the amount you mention at stake, a consultation with a lawyer is well worth the money.  Let him send a letter if you both decide it's a good idea.  I totally understand your point of view, in that the original company has long since written this off as bad debt and the collection company bought this debt for next to nothing, but I believe (check with the lawyer) that this is still your debt.  No doubt it can be negotiated down quite a lot by a skilled lawyer, and I suspect there is some legal cap on the amount of interest they can charge.  You need professional advice on this one, and the sooner the better.  It will save you lots of money in the long run.

Answer 4

Ok, may I suggest you read up on this very subject at this message board (free)?

You'll find lots of help from people who have been where you are.

http://creditboards.com/forums/index.php...

Answer 5

Well the part that sucks is that Ohio is one of the worst states when it comes to defending credit cards as open accounts, but it's not a lost cause. The creditors will attempt to argue that a credit card falls under a written agreement, not open ended, even though the Truth In Lending Act defines all credit card accounts as open ended.

Of course you are going to be arguing that credit card accounts are open ended, so you basically have the following defenses.

- If they failed to include the written agreement, you might say something like "Plaintiff has failed to submit a written agreement pursuant to Ohio Rules Civil Procedure 10 (D) (1)  which states a copy of the written agreement must be submitted with the complaint"

The exact quote is here below.

Rule 10

(D) Attachments to pleadings.

(1) Account or written instrument. When any claim or defense is founded on an account or other written instrument, a copy of the account or written instrument must be attached to the pleading. If the account or written instrument is not attached, the reason for the omission must be stated in the pleading.)



============= Basically what that says is that if they failed to include a copy of the signed contract in their complaint, they cannot claim the written SOL ================

- Next, you have the Truth in Lending Act which defines credit cards as open accounts, see link below for the actual law.

- There is also the following Ohio state statute

***OHIO STATUTE OF LIMITATIONS AND CC EXCLUSION FROM WRITTEN CONTRACTS

§ 2305.09 Four years; certain torts.

Text of Statute

An action for any of the following causes shall be brought within four years after the cause thereof accrued:

(D) For an injury to the rights of the plaintiff not arising on contract nor enumerated in sections 2305.10 to 2305.12, 2305.14 and 1304.35 of the Revised Code.

DEFINITION IN OHIO CODE EXCLUDING CREDIT CARDS AS WRITTEN CONTRACTS

1335.02 Loan agreements with financial institution.

Text of Statute

(A) As used in this section:

(1) "Debtor" means a person that obtains credit or seeks a loan agreement with a financial institution or owes money to a financial institution.

(2) "Financial institution" means either of the following:

(a) A federally or state-chartered bank, savings bank, savings and loan association, or credit union, or a holding company, subsidiary, or affiliate of a bank, savings bank, or savings and loan association;

(b) A licensee under sections 1321.01 to 1321.19 of the Revised Code, or a registrant under sections 1321.51 to 1321.60 of the Revised Code, or a parent company, subsidiary, or affiliate of a licensee or registrant.

(3) "Loan agreement" means one or more promises, promissory notes, agreements, undertakings, security agreements, mortgages, or other documents or commitments, or any combination of these documents or commitments, pursuant to which a financial institution loans or delays, or agrees to loan or delay, repayment of money, goods, or anything of value, or otherwise extends credit or makes a financial accommodation. ["Loan agreement" does not include a promise, promissory note, agreement, undertaking, or other document or commitment relating to a credit card, a charge card, a revolving budget agreement subject to section 1317.11 of the Revised Code, an open-end loan agreement subject to section 1321.16 or 1321.58 of the Revised Code, or an open-end credit agreement subject to section 1109.18 of the Revised Code.]***

Section 3, above, contains the portion of the law which excludes credit cards from being a written account. I put "[ ]" around the important part to help you.

You might try finding a lawyer in your area that is a member of the NACA (NACA.net has a lawyer locator) and show him the statutes I listed, as they may be able to help you in filing your answer and arguing the open SOL.

Answer 6

Answer # 3 is wrong

It is past the statue of limitations , even if it were not , a summons is not served by a collection agency, so it is no doubt fake

The answer about sending the certified letter above answer # 3 sounds like what the best thing to do would be since getting an attorney might be expensive and the attorney would probably jsut send that exact letter to them

Answer 7

I would seriously consider consulting with an attorney who handles consumer credit issues.  You can get an attorney referral from your county bar association.  You might be eligible for free legal help from your local legal aid office.

Answer 8

a summons would come from the courts, not a collection agency - if the debt is no longer listed on your credit report - ignore it and don;t contact them or talk to them on phone - they use scare tactics to get people to pay - if they call, just hang up

Answer 9

pay your debt or it will kill your credit score or at least negotiate a payment plan with the collection agency

Answer 10

Was this a "real" summons? That is, were you served papers by a sheriff?  If the answer is "no."  Respond by the following:

Send them a letter via Certified Mail + Return Receipt stating:

Per the Fair Debt Collection Practices Act, I am requesting

written validation of this alleged debt and that said alleged is within the statute of limitations. Per the Fair Debt Collection Practices Act, cease all verbal communications with me about this alleged debt.

--------------------------------------...

If the answer is "yes" and this was an official summons:

This sounds you are dealing with a bottom-feeder collection agency that is playing the default judgement game. What these people do is file a bunch of lawsuits on old debt that's outside the statute of limitation and hope that the people don't show up in court...."No show" = default judgment...even if the debt is outside the statute of limitations.

What you need to do:  Send them a letter via Certified Mail + Return Receipt stating:

Per the Fair Debt Collection Practices Act, I am requesting

written validation of this alleged debt and that said alleged is within the statute of limitations

-----------------------------

It's very important to send this via Certified Mail....do not send via regular mail. You need confirmation that they received this response from you.

DO NOT under any circumstances be a "no show" on the court date....That's exactly what they want you to do. If you can afford one, hire an attorney to come with you. If you can't, show up and bring a photocopy of the letter of you sent with the receipt confirmation and tell the judge that this debt is outside the statute of limitations. You will almost certainly win just by showing up......

DO NOT let these people scare you with bogus threats.