I live in and am being sued in small claims court in Collier County, Florida. I am being sued by Sprechman & Associates from Miami who claim to be Attorneys for Capital one on an old credit card for $1360.64. The credit line of the card was $500.00 and was not maxed out when it became suspended. I have been doing some extensive research via the web and I believe the SOL has long surpassed. The last payment I made (by check so I have a copy) was in August of 2003. I found the original Customer Agreement which boldly states, "Applicable Law - This Agreement will be governed by Virginia & Federal law". The Florida SOL is 5 years on a written contract & 4 years on an open/revolving account and Virginia is 4 years on a written contract & 3 years on an open/revolving account. Do you know if Florida or Virginia state statute governs this? I have lived in Florida since 1991 and have never been out of state for any length of time so the SOL clock was never paused. Attorney Scott E. Modlin of Sprechman & Associates is trying to use Florida & Federal law to show I have breached a written contract which has an SOL of 5 years to allow this to just barely sneak in under Florida's SOL period.
I have a sent request for validation via Certified Mail -Return Receipt, which they have received already and at the pre-trial conference he said it was too late for the validation dispute as I only had 30 days from the initial letter he said they sent me last year. I told him I had never received a letter or anything regarding this account until I was served a summons on 06/17/2008. I asked how he sent it and he said regular mail and he couldn't locate it at this time to read it to me. I believe my 30 days to dispute started when I received the summons as that was my first knowledge of the debt collection activity by them. Don't they still have to provide me with the VALIDITY/PROOF that the account was mine and provide original documentation to back it up? I have credit reports from 2006 & 2007 that plainly show when the last payment was received and he is trying to say it was just charged-off in 2007 which is a blatant lie! Both years of credit reports show the charge-off date for the most current time which means they have been feeding false info to the credit reporting agency's. Accounts are charged-off 180 days after last payment was received per my extensive research. He also threatened to prove the 5-year Florida SOL for credit cards with case law history examples. Is there a site that can I find case law to back my claims on this?
Do you think I can WIN? I did not put my tail between my legs and say, "O. K., YOU WIN". I am doing what these attorneys do not expect, showing up for court and putting up an educated fight! No automatic DEFAULT this time boys! Should I also counter sue for falsely reporting info to the credit bureaus or knowingly suing on a time barred debt that is past SOL?
My court date is 08/19/2008 and I am running short on time here, so any help or advice you could offer would be greatly appreciated!