Should I answer now or wait and fight in court?
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Posted by MCM bait
(167.127.24.25) on January 30, 2004 at 08:46:45:
Hi, I'm in Illinois. Sorry if this is a bit long, but I could use some advise. Midland Credit Management filed a suit late last year for an old 1998 CC debt, which I'm pretty sure was outside the SOL on the date of the suit (almost certainly from date of delinquency, maybe not from the last payment..most definitely the statute has run as of today). The SOL in IL is 5 years. The complaint includes an affidavit from MCM (no other supporting material) stating that the debt became delinquent in 2001, which isn't even close because I made my last payment in 1998 (after a four month lapse) and had no contact with the OC at all after that. The affidavit makes NO MENTION of the OC! I'm wondering if they even have an original contract or records of the last payment. Now here's the rub: I did make ONE attempt a couple of years ago to work with MCM by making an offer to make payments, but I never received any response whatsoever. No refusal, no acknowledgement, nothing. I didn't send it by certified mail, just regular mail. So now I'm wondering if it's possible they have that letter and are using it as a basis for action, although the affidavit made no mention of that, either. Just mentioned something about the cardholders agreement. The amount sued for is less than $5000, so I don't need to file an answer, just an appearance. There is a presumption that the answer is a denial to all in small claims. My question is, should I file an answer anyway with my appearance denying all and stating my affirmative defense of SOL? Or should I wait until the actual court date to bring up my affirmative defense and HOPE that they're unprepared and have no evidence? I'm afraid that if I file an answer, I'll give them time to get evidence they may not otherwise have. But if I do file an answer, maybe they'll drop the suit or try to negotiate? Thanks for any suggestions...
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