I have a credit card debt that the Michigan statute of limitations is definitely expired on (more than 6 years since last payment). The suing attorney refuses to accept this as defense and is requiring a formal answer to the complaint. I've contacted an attorney but I'm not feeling very confident with their response to the matter. Documentation regarding last payment has not been provided by the credit card company yet, however, I know for a fact that the 6 years is up. I'm not sure if it is worth mentioning, but the debt is no longer showing on my credit reports either. It was removed last year. Do I have any recourse here? I'm not proud of the situation but it is what it is. One of my concerns is that I'll have to pay an attorney and not be able to recover that money.
Family Law Attorney
Here's where you're mistaken - SOL's are affirmative defenses, meaning that you HAVE TO answer the lawsuit and formally make the SOL defense claim in your answer. You simply telling the bank's attorney about it is irrelevant. Further, it is YOU that has to prove the SOL expiration, not the bank. They are not required to make your case for you. You won't receive any attorney's fees...if you defend, it will be at your own expense since the bank's attorney is not breaking any rules in suing you. Unless you can prove actual fraud (which you can't), you won't get any fees awarded. SOL's are no bar to being sued; they are a bar (if successful) to the plaintiff obtaining a judgment against you. One other thing - SOL's get inadvertently reset all the time - if you told a collection agency that you admitted owing the debt, that reset the clock, even if your last payment was over 6 years ago.
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Lemon Law Attorney
Filing suit on a debt after the statute of limitations has run is a "per se" violation of state and federal fair debt collection practices statutes. Thus, if you are certain that the statute has run, it would be well worth your while to hire an attorney not only defend the lawsuit but, also file a counter-claim on your behalf. Both the state and federal laws allow you to recover your attorney fees as part of your damages, so it most likely would not cost you anything out of pocket to hire an attorney - and you might end up recovering money for yourself, as well.
If you would like more information on debt collection practices claims, feel free to visit our website: www.lemonlawlawyers.com and check out FAQs and "Resources" for links to additional information.
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Debt Collection Attorney
You should speak to a qualified consumer attorney in your area. My colleagues here are correct. The SOL expiration is an affirmative defense, at least in my state. If you are being sued by a third party collector, and the SOL has in fact run, then you may be able to counterclaim under the FDCPA. Attorney's fees and costs are part of the FDCPA. Search Avvo for a debt attorney or search the NACA sight to find a consumer attorney.
3 lawyers agree