Legal Question in Credit and Debt Law in North Carolina

I was sent a court filing document in 3/2012 from a collection agency, I sent filed an answer certified and filed and then one year later 3/13 with no contact in between, I have been sent court looking papers requesting document and interrogation is there a time limit for them to continue this court case. The debt was from 5/ 2009.

Asked on 3/25/13, 9:32 am

3 Answers from Attorneys

Kenneth Love Ken Love Law

It sounds like you were sued, you filed an answer and now they have served you with what is called discovery. You need to answer the questions in the discovery and send your response in 30 days or hire an attorney to assist you. If they sent admissions and you don't answer, it is deemed that you admit anything they have asked and they will use that to get a judgment against you.

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Answered on 3/25/13, 9:35 am

You do not post all relevant information. Answers are filed in response to complaints. They are filed with the court. Sending via certified mail to the debt collector means nothing if the answer was not filed with the court. However, if you received discovery, maybe you timely filed an answer.

Telling me the debt is from 2009 tells me nothing. When was the debt last paid? When was the lawsuit filed? Those are the important questions. If the lawsuit was filed on before 3 years from the date the debt was last paid, then the action was timely. If your debt was last paid in May of 2009, then the lawsuit was timely because the creditor had until May of 2012 to sue you and your post suggests that the lawsuit was filed around March of 2012.

If filed more than 3 years later, the suit was untimely, but the statute of limitations is a defense that you would have to raise by a properly filed answer. If you did not raise this defense, then its WAIVED, meaning it does not count. If it is a valid defense and you omitted it, maybe you can file a motion to amend your answer to include it.

It sounds like you received discovery (interrogatories, which are a series of written questions, as well as a request fro production of documents and request for admissions). I agree with Attorney Love that you would need to complete it in general, but you need to do this after consulting an attorney.

You really need to step back here and think about what you are doing and what your goals are here before you continue to act unwisely. First, is this or is this not your debt? If its your debt and the complaint was timely filed and the creditor has attached sufficient proof of your liability, the creditor is going to get a judgment against you. If you answer the interrogatories and admit its your debt, they will get a judgment against you. If you don't answer the interrogatories, the creditor will still get a judgment against you. Notice a common theme here? It all ends up with them getting a judgment against you.

How do you want to resolve this if its your debt? By filing bankruptcy? Now is the time to do that if that is what you are going to do. If you can file a chapter 7 bankruptcy and have at least $10,000 in dischargeable debt, that may be an option.

If bankruptcy is not an option, how large is this debt? Who is the creditor? The law firm? Do you have at least 50% of the amount sought in the complaint available? If not, when will you have the funds? What assets do you own? How are they titled?

The answers to these questions will dictate whether you need to continue litigating or not. If you are thinking of bankruptcy, get a consult with a bankruptcy attorney NOW. If this is not your debt or if you think the lawsuit was untimely or if there is insufficient proof of your liability or that the creditor owns the debt, then get to a credit card defense/FDCPA/consumer lawyer NOW. Pay the attorney to review the complete summons and complaint (including the return of service), the answer and the discovery you received. If you think its beneficial to litigate, then do that and hire the attorney. And have the attorney propound your own discovery to the creditor. Just like they asked you to produce documents and answer questions you can do the same.

If this is your debt, there are no valid defenses, then its not really worthwhile to continue this. Answer the discovery truthfully and propound your own. The creditor will then file a motion for summary judgment which will probably be granted if the material facts are not in dispute (i.e. that you owe or are financially responsible for this debt and that it is in default). If you have little to no assets or all your assets are exempt, and no funds to resolve this now, then you need to start preparing for the entry of judgment and execution.

To collect on any judgment, a creditor first has to serve you with very important papers called a notice of rights to have exemptions designated and motion to claim exempt property. The soonest that you will receive these papers is about 30-45 days after judgment has been entered (you may or may not get a copy of that). Judgment will be entered whenever the motion for summary judgment is to be heard, which is sometime after the close of discovery.

I can help with the notice of rights ad exemption papers once you receive them. I can also help in either resolving debt if you have the funds to do that or in reviewing your situation and discussing the best option for you.

I charge very reasonable fees for document review, phone consults, review of exemptions or resolution of debts. If you are interested in discussing these matters in a non-bankruptcy, non-litigation context, please email me at [email protected] Otherwise, if you are interested in litigating or filing bankruptcy, please get up with these types of attorneys..

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Answered on 3/25/13, 11:33 am
Lynn Coleman Attorney-Mediator

This is correct - you do have to answer those questions. Please contact an attorney for advice before you answer them, in order to make sure you honestly preserve and present all of your defenses. There are many of us who will help people with these kinds of cases and we might be able to help you settle the debt or avoid having a Judgment entered against you.

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Answered on 3/25/13, 11:47 am

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