I received a summons from a debt collector's attorney. They filed in MA in May and delivered a summons earlier this month to my dad (of the same name) at his home more than 100 miles away from me. I'm not sure how they could have made such a mistake. I've lived in a different state for more than a decade with mailing addresses and operators' licenses there. Apparently, in addition to being sent to the wrong person and address the summons was signed by a Sheriff on one date and delivered by a local police officer more than a week later (no idea how that affects the 20 day response period). Lastly, the complaint identifies "a person who resides at" the above mentioned incorrect address.
I was informed of the existence of the summons when my dad called approximately one week after its delivery. He snail mailed a copy to me which I only just received today. I'm not quite sure what to do next. I am also concerned about how these delays have affected the timeframe in which I am allowed to respond.
The debt appears on my credit report marked as "last payment made August 2009. "Date closed" June 2009. Status charged off. Strangely, the complaint sent with the summons contains what appears to be a photocopy of a monthly statement from the original creditor dated March 2010 implying that the account was perhaps still active at that time. It was not. In a nutshell, this summons is an attempt to obtain a judgment for a debt for which the SOL may have run out in August 2012 (3yr SOL there).
I write "may have" because, in reading the most recent copy of the original creditor's Governing Law clause it references the laws of Delaware and states that the laws of Delaware apply no matter where one lives or uses the account. Delaware has a 4yr SOL on "open ended accounts". Is this enforceable vs the laws of the State in which someone resides?
So, this afternoon I researched some options not knowing where to begin: motions to quash, motions to dismiss, answers, and demurring. I then called the clerk of the Court at which the documents had been filed and hit a dead end...I was asked to consult an attorney. I cannot afford an attorney so here I am hoping someone can point me in the right direction. My questions are:
1. Can I file a motion to quash? Should I? How about a motion to dismiss? This is a court over 100 miles away. Can I quash to force the attorney to have the summons served again to the proper address in a local jurisdiction?
2. How about demurring? I researched demurring in MA on the grounds that the pleading does not state facts sufficient to constitute a cause of action. The potentially expired statute of limitations is mentioned nowhere in the complaint.
3. Respond with an answer solely on the basis of this might be a time-barred debt? Though I am under the impression I'd have to appear at that Court to make my case later anyway.
4. Some combination of the above? Something else?
Also, if you feel a specific approach would be most effective, how do I go about finding the references I would need, relevant to MA law, to support my filing?
Your insight would be appreciated.
I was informed of the existence of the summons when my dad called approximately one week after its delivery. He snail mailed a copy to me which I only just received today. I'm not quite sure what to do next. I am also concerned about how these delays have affected the timeframe in which I am allowed to respond.
The debt appears on my credit report marked as "last payment made August 2009. "Date closed" June 2009. Status charged off. Strangely, the complaint sent with the summons contains what appears to be a photocopy of a monthly statement from the original creditor dated March 2010 implying that the account was perhaps still active at that time. It was not. In a nutshell, this summons is an attempt to obtain a judgment for a debt for which the SOL may have run out in August 2012 (3yr SOL there).
I write "may have" because, in reading the most recent copy of the original creditor's Governing Law clause it references the laws of Delaware and states that the laws of Delaware apply no matter where one lives or uses the account. Delaware has a 4yr SOL on "open ended accounts". Is this enforceable vs the laws of the State in which someone resides?
So, this afternoon I researched some options not knowing where to begin: motions to quash, motions to dismiss, answers, and demurring. I then called the clerk of the Court at which the documents had been filed and hit a dead end...I was asked to consult an attorney. I cannot afford an attorney so here I am hoping someone can point me in the right direction. My questions are:
1. Can I file a motion to quash? Should I? How about a motion to dismiss? This is a court over 100 miles away. Can I quash to force the attorney to have the summons served again to the proper address in a local jurisdiction?
2. How about demurring? I researched demurring in MA on the grounds that the pleading does not state facts sufficient to constitute a cause of action. The potentially expired statute of limitations is mentioned nowhere in the complaint.
3. Respond with an answer solely on the basis of this might be a time-barred debt? Though I am under the impression I'd have to appear at that Court to make my case later anyway.
4. Some combination of the above? Something else?
Also, if you feel a specific approach would be most effective, how do I go about finding the references I would need, relevant to MA law, to support my filing?
Your insight would be appreciated.
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