debt

Going to court with debt collector

Steve BucciDear Debt Adviser,
I have to go to court over a credit card debt that's from 2006. It's in my name only, not my husband's. My husband said they can't do anything because I am on disability/Social Security and I get a little pension, but I'm thinking they can make me pay something. They want $1,500 plus court costs. What should I do? I'm for sure going to court, but what papers do I need to take? My husband is also on disability/Social Security and he receives also a small pension from the federal Pension Benefit Guaranty Corp., or PBGC.

What do I need to tell the judge in court? Does my husband's money make a difference if his name isn't on the credit card? Thank you for any information about this.
-- Deborah

Dear Deborah,
I am glad you wrote. Depending on the laws in your state, the statute of limitations for collecting a debt using the courts may have expired. To learn the laws that apply in your state, visit your state attorney general website. Many states have a six-year statute for written contracts such as a credit card agreement, so the creditor may be just getting in under the wire, but it would be worth it to find out.

Should the statute of limitations in your state be expired, that is the defense that you should present in court. What you will need to prove the age of the account and that it is no longer collectible is your original paperwork (cardholder agreement) on the account or documents from the collection agency that reference the original creditor and date of the debt.

Should the debt still be collectible using the courts in your state, it may be worth your while to appear in court. As long as the debt is valid and belongs to you, the judge is likely to find in favor of the collector. The court would issue the collector a judgment for the amount owed, and your day in court would be over. But you can present to the court your financial situation (three months of bank statements would suffice) and the collector will learn that you may be what is termed "judgment-proof." You might even consider using a pro bono (free) attorney to represent you in court. You could check with your city or state legal aid society.

If you live in Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin or Puerto Rico, your attorney can determine if your husband may also be responsible for the debt under community property laws if it was incurred after your marriage.

A judgment can be used by a collector to garnish wages, bank accounts or place a lien on real property to collect a debt owed. Social Security and retirement benefits are typically exempt from garnishment unless you owe the government or child support. If you own a home or other real property, the collector may be able to place a lien on the property. What that would mean is when you or your heirs sold the property, the lien would be satisfied first before anyone received the rest of the proceeds of the sale.

Lastly, what your husband is missing is that though the collector may not be able to get at your money, he or she can and very well might make your life miserable with calls, letters and other collection tactics in hopes that you'll pay to end the pressure. Although you may be judgment-proof, you aren't collection-proof!

Good luck!

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