Questioner: Betty BCategory: Collections LawSubject: Sued By Discover
CardQuestion: I’m being sued by Discover card. I’m supposed to appear
in court in about two weeks. I’m trying to come up with a defense. The
information they’ve included in the petition is scanty. I question
whether the debt has exceeded Missouri’s 5-year statutory limitation as
I believe I last paid in April 2003.The petition includes two copies of
my account summary. The first is dated Sept 25, 2004 and it says I owed
$7,798.96 (I do not remember owing this much) and that a late fee and
over the limit fee of $70.00 was added, bringing the total to
$8022.44.But I’d quit paying long before that. Surely they can’t use
charges they’ve added to the account as a means of extending the
statute of limitations. Right?The second copy of my account summary is
dated September 30, 2004 and it shows the $8,002.44 as the beginning
balance and then it shows a $8,002.44 payment (at the bottom of the
statement under transactions it says the $8002.44 is an “internal
charge-off”). Finally, it shows an account balance of Zero.Neither of
these statements were ever mailed to me. In fact, they have the wrong
address on them.They’ve also included a copy of the cardmember
agreement, but have included nothing that I’ve signed.I’m going to try
to get the case dismissed on the grounds that the statutory limits have
expired, that there’s no signed proof that I agreed to their terms,
that I dispute the amount they claim I owe and they’re offered no proof
otherwise of the amount of the debt, and also that I had their
AccountGuard Service. AccountGuard should have paid the debt after I
lost my job and home. I did write to Discover in 2003 and tell them
about my financial hardship but received no response.Do you think I
could possibly win the case? Any other
suggestions?Thanks,BettyAnswer:If you can’t prove when you made your
last payment by some means then you will have to go with their
statement date which is actually the chargeoff date so that would be a
few months after you made your last payment. Using a 6 month figure
then your last payment probably would have been sometime around April
of 2004. If you use the Missouri statute that would put the end of the
SOL in Sept of 2009 so you will lose using that argument. But the real
statute of limitations may not be 5 years as stated in Missouri law. It
may be much shorter than that depending on what you argue and how you
argue it. I’m sure that you have only considered the Missouri law which
isn’t the only law which in fact may not apply at all.Even if you lose
and they get a judgment and you have applied the correct statute of
limitations but the judge insists on applying the Missouri law you
would still have two options. One would be to appeal the judge’s
decision and the other to file a federal case for misrepresenting the
legal status of the debt.Although it is doable if you take a court
reporter with you (never go to court without having a court reporter
present) I don’t recommend that course of action because you may end up
having to put up a bond in the full amount of the judgment which the
plaintiff will get immediately if you lose. You would have a much
better chance in federal court and you don’t even need to hire a lawyer
to do it. Furthermore, it isn’t nearly as scary as local courts because
you will do everything over the internet using PACER and by U.S. Mail
and maybe by phone. In local court you will face a judge who is likely
to be all in favor of the plaintiff’s motions and pleas.Of course, you
will want to use your discovery tools to the max. I like to send demand
for admissions first then demand for production of documents based on
the responses to your demand for admissions and finally interrogatories
based on what you got back from the first two demands. Needless to say,
you are going to need help getting that all worded properly.You should
be glad they included a copy of the agreement with their complaint. The
agreement will be key in getting the court to see and understand your
arguments.Can you win the case? I think so but you are going to have to
present the proper arguments in the right way or you will most
assuredly lose.Even so it probably won’t be all that easy because the
court will want to impose the Missouri statute and they are apparently
in time with that.Message forum
