Payments And How Long They Keep Them In Storage?
Q: I'm being sued for an OLD credit card debt almost 10 years old. The statute of limitations here in California is only 4 years so the debt is legally considerd to be dead and uncollectable but the collection lawyer is playing games and trying to say the last payment I made was in june of 2002 whch is a bold face LIE! The last payment I made was in 1996. I'm hoping that the court will ask the collector to show a photo copy of a check or money order of the alleged 2002 payment. If all the collector has to show is a phony ledger sheet or payment card then I'm screwed because something like that can be made up and the crdit card company has already been found guilty of altering payments once before so I have no doubt they will do it again with me in order to win the suit. Can anybody tell me if credit card companies make photo copies of payments and how long they keep them in storage? I'm DESPARATE! as I could end up losing my home over this.
A: Since you could lose your home over this, there is no possibility that you will try to handle it without an attorney, right? Good, I'm glad we agree on that. You said you hope the court will ask the credit card company or their collection agency to show a photo copy of a check or money order backing up their allegation of a payment. The answer is, the court will not ask, but your attorney will. Whether the lack of the photocopy will be enough to overcome the plaintiff's testimony and computer records, nobody can predict. I doubt that credit card companies make photo copies of payments. That much paper would swamp a battleship. And those records wouldn't help them except in statute of limitations cases. It would be better for them in all other cases not to have any such records so the defendants cannot demand the records to prove a payment was made. But I don't really know. Maybe someone else here does. I assume you are right about California law. I seem to remember that California is one of the states having the rule that a payment will cause restart of the statute of limitations. But I haven't looked it up, and it is important that you find out. So be sure to stay tuned for an answer from someone who knows. Assuming you are right about the statute restarting with a payment, it becomes critical for the collection agency to prove that a payment was made, as they claim, less than four years ago. The burden of proof will be on them. Plaintiff's testimony about a payment, backed up by the plaintiff's computer records, will be sufficient evidence if there is no contrary evidence. So it will be up to you to provide evidence that there was no payment. There are four things I can think of that will help. First, there is your testimony. Second, you could present your check registers and bank statements going back four years and testify that the records show that there was no payment by check and that you always paid by check. Your attorney will know how to get the records authenticated and admitted into evidence. Third, your attorney will cross examine the defendant, and question the defendant in a deposition, asking to see a copy of the bank record showing the deposit of the alleged payment, and will make a great closing argument out of the lack of any record except a computer record which can easily be faked. The plaintiff will argue that the credit card company doesn't keep copies of payments and therefore the plaintiff cannot be expected to produce records that don't exist. But that argument won't work regarding bank deposits. The attorney representing the credit card company or their collection agency will not be able to get the company to find the records of the bank deposit and the backup records showing how one peanut little payment was included in the zillion-dollar deposit for that day. So your attorney will be able to argue that the credit card company has refused to deliver relevant records which they actually have, and therefore, their testimony about the payment should not be trusted. Fourth, if you have evidence that "the credit card company has already been found guilty of altering payments", your attorney will figure out a way to make that evidence admissible. Hint: a newspaper clipping or website printout won't be good enough. I looked back at your question. You said: "I'm being sued". If that means you "have been sued", then naturally, you need to get an attorney started immediately. If you meant that the "attorney has threatened to sue", that changes everything. Tell us if that's the situation and we will have comments about what to do. This answer must not be relied on as legal advice for the reasons posted here: http://mcgyverdisclaimer.blogspot.com -Search for "Fair Debt Collection" and you'll find a nice little diddy that protects you from scoundrels who seek rewards from past debts like yours. Is the account still active? If it is, the SOL has not run out. Collection agencies routinely go through records looking for past unsettled debts regardless of the SOL. They will use any method necessary to threaten you into a settlement and get their rewards. Even if that method is illegal. When the jerk calls again, "Sir, I am hereby formally notifying you of probable court action against your agency for the illegal acts your agency is taking. Under the laws of the Fair Debt Collection Act, you are hereby lawfully ordered to cease and desist. Any further attempts to collect either by mail or by phone, or any other manner, will cause me to file a lawsuit against your agency." Before that happens, call the credit card company and remind them that legally, under california law, they have no rights to reclaim any monies due them. As the SOL has been expired. Including wording to make sure they understand the collection agency is going to be named in a lawsuit to which the credit card company will be a party. I have a hunch you won't hear about it again. -Huh? Who gets to say if the account is "active"? If he hasn't used it in 10 years, it isn't active, even if the bank hasn't closed it. >When the jerk calls again, What part of "being sued" did you not understand? He needs a lawyer who knows the state laws _immediately_. There's some chance he could collect a _lot_ from the collection agency (in some states, attempts to collect illegal debts get multiple damages).