Suit filed on behalf of Portfolio Recovery, advice on what to bring to court

[Anonymous]

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@cyrusvalentino wrote:

You would need to a copy of your reports that show when the account was updated as charged off from the original creditor. This would establish the SOL of when the debt originated. Also as they are the Plaintiff the burder of proof would be on them. But as suggested above either you or legal counsel need to file a Motion to Dismiss pursuant to the applicable state law regarding SOL. They court would then schedule a hearing in regards to your Motion.

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Thank you, first and foremost.

Their documentation says the account was charged off on 06/01, which combined with the new information you've provided here is where I am no longer sure I am past the SOL. The documentation they sent me is "Dated: June 01, 2020", however I did not receive it until June 17th, and the suit didn't show up on the docket until June 29th. So I will definitely ask the attorney if them simply putting the date June 01 on the forms counts as suing me within the SOL.

 Your best bet in this situation is to file a pro se motion with the motion asking to be appointed representation if in Civil Court and not small claims. 

It is in civil court, I believe, though I'm basing that only on the wording of the summons I received (Complaint under simplified civil procedure). I'll have to call the court and ask how to do that, I'm not entirely sure what it means but I get the gist of it.

I cannot wait for that piece of my life to finally be over, if I'm wrong about everything and they managed to get me within the SOL I guess my only option will be as everyone suggested earlier... try and settle. 

[Anonymous]

If the DO C/O was 6/1/14 and they filed 6/1/20 and the state has a 6 year SOL, the case was filed legally. When was the DOFD? You could go to court and represent yourself, pro se, and argue that although it was FILED in a timely manner, the court date is past the SOL. 

But, having worked in courts for many years, I can tell you that a judge will not look kindly on that excuse to get out of a debt, especially if the attorney can show that they have made efforts to locate you for months (or years) through alternate addresses, etc, which I suspect they will argue.  The attorneys that work in this field are slick and will make it sound like they tried to do it by the book and you should not get a pass because the hearing was a few weeks past the SOL. 

My rec is to get an attorney or settle. If you don't, you could end up owing the full debt PLUS legal fees. 

I wish you the best of luck. It sounds very frustrating. 

[Anonymous]

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@Anonymous wrote:

If the DO C/O was 6/1/14 and they filed 6/1/20 and the state has a 6 year SOL, the case was filed legally. When was the DOFD? You could go to court and represent yourself, pro se, and argue that although it was FILED in a timely manner, the court date is past the SOL. 

But, having worked in courts for many years, I can tell you that a judge will not look kindly on that excuse to get out of a debt, especially if the attorney can show that they have made efforts to locate you for months (or years) through alternate addresses, etc, which I suspect they will argue.  The attorneys that work in this field are slick and will make it sound like they tried to do it by the book and you should not get a pass because the hearing was a few weeks past the SOL. 

My rec is to get an attorney or settle. If you don't, you could end up owing the full debt PLUS legal fees. 

I wish you the best of luck. It sounds very frustrating. 

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while not ideal and the judge may not like it (they may not like a lot of things, but laws are still laws), but it is now outside the SOL. Are we certain when it was CO'd that is considered the date to consider being sued or is it the DoFD? Because many times accounts are infinitely 120d late, but still held to SOL. I would determine that first. I am not claiming to have that answer. I would look/research for cases like this to get an idea.

What they count on in this case is that you will know it is outside of the SOL, decide to not appear based on that, and then they will win by default judgement.

While outside the SOL, they can take you to court, but you still need to show up. bring your paperwork, and assert that it is outside the SOL. You have to give your defense and state the debt is time barred. I have seen this trick before from lawyers to obtain default judgements.

I would definitely still try getting a consultation with a lawyer asap (super rough since it is a holiday weekend), but absolute worst case scenario, you definitely need to show up.

Good luck!

[Anonymous]

Do contact the court to verify a suit has been filed. 

Do verify the suit if filed is in your jurisdiction.

Make three copies of all of your proofs if you go to court.

Put sticky tabs with numbers on the proofs you give to the judge and on your copies.

[Brian_Earl_Spilner]

@RobertEG

[Brian_Earl_Spilner]

Mister EG, could you please let us know when statute of limitations begins

[vntrsc]

From the Colorado Supreme Court.

A cause of action to collect a debt accrues when the debt becomes due. § 13-80-108(4), C.R.S. (2015). Since early common law, it has been universally accepted that a new promise to pay effectively removes the bar of any applicable statute of limitations by creating a new debt, with a new due date; and that a partial payment constitutes an implicit promise to pay. Hutchins v. La Plata Mountain Res., Inc., 373 P.3d 582, 585 (Colo. 2016).

[Anonymous]

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@vntrsc wrote:

From the Colorado Supreme Court.

A cause of action to collect a debt accrues when the debt becomes due. § 13-80-108(4), C.R.S. (2015). Since early common law, it has been universally accepted that a new promise to pay effectively removes the bar of any applicable statute of limitations by creating a new debt, with a new due date; and that a partial payment constitutes an implicit promise to pay. Hutchins v. La Plata Mountain Res., Inc., 373 P.3d 582, 585 (Colo. 2016).

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See, to me that makes sense because some creditors let accounts remain "late" for many, many years, and I just do not see how the CO date is when the SOL begins. For many of us, we go off the DoFD, which would mean to me, that is the date that they are able to begin suing, if they so desired, and would be the date the SOL begins. Since some people never get a CO date, that would be a "loophole" for FIs to be able to sue indefinitely, as long as they never CO the account, which seems to me, to be around the SOL, so then why even have one. Hence, why one has to be careful to not reset the SOL by confirming the bedt, promising to pay, or making a partial payment/payment plan (as you showed us above).

OP should definitely show up and defend themselves by stating that the debt is outside the SOL, as to avoid a default win, if this holds true. I am not saying OP was not going to show up, just reasserting that.

Again, just my thoughts, and thank you for the case to show that info! I hope this holds true for OP (and many of us!)

[Anonymous]

Thank you everyone for your help! Thank you also for attempting to clarify the issue of whether the SOL begins on DOFD or first CO. It would make sense to me from a layman's point of view that the period to collect started from the first "attempt to collect" (ie being issued the bill and asked for payment in return), but I am not a lawyer and those who have stated it is from the time of first charge off have done so with some level of confidence. 

I'll be talking to multiple lawyers throughout next week. Using those free consultations to determine if the consensus with them is that I should just settle or if I'm within my rights to deny this claim. I know some people here will feel like that regardless of SOL it's a debt that I owe so I should just pay it, but I have my reasons. If it comes down to it, I will pay it and move on. I'll post back here with whatever the outcome is.

[vntrsc]

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@Anonymous wrote:

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@vntrsc wrote:

From the Colorado Supreme Court.

A cause of action to collect a debt accrues when the debt becomes due. § 13-80-108(4), C.R.S. (2015). Since early common law, it has been universally accepted that a new promise to pay effectively removes the bar of any applicable statute of limitations by creating a new debt, with a new due date; and that a partial payment constitutes an implicit promise to pay. Hutchins v. La Plata Mountain Res., Inc., 373 P.3d 582, 585 (Colo. 2016).

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See, to me that makes sense because some creditors let accounts remain "late" for many, many years, and I just do not see how the CO date is when the SOL begins. For many of us, we go off the DoFD, which would mean to me, that is the date that they are able to begin suing, if they so desired, and would be the date the SOL begins. Since some people never get a CO date, that would be a "loophole" for FIs to be able to sue indefinitely, as long as they never CO the account, which seems to me, to be around the SOL, so then why even have one. Hence, why one has to be careful to not reset the SOL by confirming the bedt, promising to pay, or making a partial payment/payment plan (as you showed us above).

OP should definitely show up and defend themselves by stating that the debt is outside the SOL, as to avoid a default win, if this holds true. I am not saying OP was not going to show up, just reasserting that.

Again, just my thoughts, and thank you for the case to show that info! I hope this holds true for OP (and many of us!)

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Banks cannot fail to charge off accounts indefinitely.  They are required to charge off delinquent accounts after 120 or 180 days, depending on the type of account. 

The Uniform Retail Credit Classification and Account Management Policy, 65 Fed. Reg. 36903 (June 12, 2000) sets forth bank regulatory accounting requirements, which requirements mandate that credit card accounts be charged off after 180 days of delinquency for an open-end (revolving) account or 120 days for a closed-end (installment) account.

And we can't forget that a partial payment made after the DOFD can reset the SOL for collection and legal action.