I have a 2009 credit report from Experian stating that a Bank of America card would be dropped as of April 2013. No activity of outstanding debt has shown on my credit report in the past six years. I settled with creditors in 2008 and paid IRS the taxes that were reported by those creditors. I have had three calls from Midland in the past week and received a Bell County court summons for Dec 15.
If the debt is beyond the statute of limitations, you have an affirmative and powerful defense. Moreover, when a debt collector sues to collect outside the statute of limitations, it violates the Fair Debt Collection Practices Act (FDCPA). In that case, there are lots of consumer protection and debt collection defense attorneys who would like to meet you. FDCPA cases can be worth up to $1,000 to you, plus attorneys fees.
You should consult with a local attorney familiar with consumer protection laws and debt collection practices for a thorough analysis of the limitations period on your debt. Limitations analysis is not straightforward and it is possible the suit is valid.
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The statute of limitations is governed by your default date or last payment. So if you have not paid any creditors since 2008 it certainly seems like you have a good affirmative defense and possible claim. This defense must be proved by you in Court. The first step is to file an answer to the lawsuit so a default judgment is prevented.
You may have a claim against Midland under the FDCPA for filing a time barred lawsuit. A counterclaim could be added to your answer or a separate lawsuit could possibly be filed. Midland may produce evidence that you made a payment within the last 4 years so you will need to be sure that you did not. This is why it may be a good idea to first see their proof before launching into a separate lawsuit alleging they filed a time barred debt. Usually creditors will show a credit card statement evidencing a payment. If you had multiple debts that went into default you should make sure that this isn't a more recent debt. Also, it is important to note that you have one year to file an FDCPA claim.
The first step is to get an answer on file. Consult with some debt defense firms who charge flat fees.
My comments are not legal advice and are for informational purposes only.
I agree with Messrs. Weston & Berkson, and would only add this to their excellent advice: The devil is in the details. Limitations defenses are potent, IF but only if you have a lawyer who can assert them for you on a cost-effective basis. It's the very, very rare layman who can assert this affirmative defense effectively, but a good lawyer can help you analyze and confirm the relevant facts — or alert you to potential weaknesses in that defense, some of which a good lawyer can remedy.
Select and hire a lawyer ASAP. There's no upside to postponing that decision.
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