CALLING ALL LEGAL VETS! I've been served for the first time

[milkmom]

Well guys. I should have known that this day was coming but it is still a shocker. Just a few minutes ago, I was served via certified mail. The CA is located in IL and while I live between here, Ma, and there, I was served in MA.

 

This is a medical collection with a DOLA of of sometime in 99. One the bill sent with the summons, the last office visit was in 2/99. At the time, both myself and my husband had health insurance. Only 1 was billed and even after giving them complete billing info, the other one was never billed. It was years later when I found out that there was a collection on my report.

 

In going through and trying to put a lid on unfinished business, I wrote them a letter demanding that after 2 years of waiting for correct validation, that I wanted the listing removed or I would pursue legal action. According to the date on the paperwork, the next day was when CA filed suit.

 

I am so psyched and excited because I have been chicken to get into the legal arena but now I have to defend myself. Here is what I know I have to do:

 

I have to file an answer: In this answer, I am going to use an affirmative defense of the collection has passed the 4 year SOL under the UCC in IL. I will continue with a presentation of evidence of letters written over the past 2 years explaining the billing error which, IMO, invalidates the collection in the first place.

 

I don't know if I can countersue but I would like to file something against them in IL.

 

After that is in the mail, I am going to file a few separate suits. One will be for the violations of the FDCPA, the other one will be for impermissible pulls of my credit report since they had been notified of the billing errors. I don't know if that one will fly but it's worth 49 bucks!

 

Once I file an answer, what happens? Do I still need to appear in court? What do I do? I do know that once I draft my lawsuits, I will make sure to use state statutes even though I think in both IL and MA, they refer back to the federal statutue. This way I have a better chance to keep things in state court.

 

It's one thing to read about everyone else's experiences, but once it happened to me, I can't remember a thing!

 

I appreciate any help I can get to guide me through this process.

[four20nik]

Sorry to hear that milkmom...but at the same time...get ready for a learning experience!

 

From what I've read, medical collections are NOT governed by UCC, unless Article 2 of your UCC includes services.

 

Generally, all caselaw I've seen considers medical as a sworn account...or as an express/impied contract.

 

PLease research your caselaw for your state...as it is VERY important to quote the right limitations.

 

Are they suing you in MA court?

[four20nik]

If you post which court you will have the case heard in...I will do my best to see what I can find.

[milkmom]

Nope, I have to appear in central IL. I want to sue sue them here in MA and possibly in IL in Lake county.

[four20nik]

If they are suing you in Illinois....

 

Then, all time in which you are out of Illinois, the SOL is tolled...

 

735 ILCS 5/13‑208) (from Ch. 110, par. 13‑208)

Sec. 13‑208. Absence from State. (a) If, when the cause of action accrues against a person, he or she is out of the state, the action may be commenced within the times herein limited, after his or her coming into or return to the state; and if, after the cause of action accrues, he or she departs from and resides out of the state, the time of his or her absence is no part of the time limited for the commencement of the action.

( For purposes of subsection (a) of this Section no person shall be considered to be out of the State or to have departed from the State or to reside outside of the State during any period when he or she is subject to the jurisdiction of the courts of this State with respect to that cause of action pursuant to Sections 2‑208 and 2‑209 of this Act, Section 10‑301 of "The Illinois Vehicle Code", Section 5.25 of the "Business Corporation Act of 1983", or any other statute authorizing service of process which would subject that person to the jurisdiction of the courts of this State. If a person files an action in a court of this State and attempts to secure service of process upon a defendant pursuant to a statute referred to in the preceding sentence, but does not obtain service of process upon such defendant, such defendant shall not be considered to be subject to the jurisdiction of the courts of this State at the time such action was filed, for purposes of the preceding sentence of this section. This subsection ( of Section 13‑208 of this Act shall apply only to actions commenced after October 1, 1973.

(Source: P.A. 83‑1362.)

[milkmom]

Here is the link to the UCC in IL. I am reading through it now.

 

 

 

http://www.legis.state.il.us/legislation/i...mercial+Code%2E

[four20nik]

Yes, I read it. CHapter 2 (sales) only refers to "goods"...and under the definitions portion, goods doesn NOT include services.

[milkmom]

Ok, I was reading the last statement. So does that mean that I can't be sued because I am not in the state? Also, I was finally able to clear my head and understand the UCC and it doesn't state anything about services. Oh well. I am not sure exactly what a medical CA would fall under. The date of last payment by the insurance is 6/98. They provided a list of services that I had but that was it. It was a glorified computer printout.

 

If they are suing you in Illinois....

 

Then, all time in which you are out of Illinois, the SOL is tolled...

 

735 ILCS 5/13‑208) (from Ch. 110, par. 13‑208)

Sec. 13‑208. Absence from State. (a) If, when the cause of action accrues against a person, he or she is out of the state, the action may be commenced within the times herein limited, after his or her coming into or return to the state; and if, after the cause of action accrues, he or she departs from and resides out of the state, the time of his or her absence is no part of the time limited for the commencement of the action.

( For purposes of subsection (a) of this Section no person shall be considered to be out of the State or to have departed from the State or to reside outside of the State during any period when he or she is subject to the jurisdiction of the courts of this State with respect to that cause of action pursuant to Sections 2‑208 and 2‑209 of this Act, Section 10‑301 of "The Illinois Vehicle Code", Section 5.25 of the "Business Corporation Act of 1983", or any other statute authorizing service of process which would subject that person to the jurisdiction of the courts of this State. If a person files an action in a court of this State and attempts to secure service of process upon a defendant pursuant to a statute referred to in the preceding sentence, but does not obtain service of process upon such defendant, such defendant shall not be considered to be subject to the jurisdiction of the courts of this State at the time such action was filed, for purposes of the preceding sentence of this section. This subsection ( of Section 13‑208 of this Act shall apply only to actions commenced after October 1, 1973.

(Source: P.A. 83‑1362.)

[four20nik]

You'll need to review your rules of service...under Civil Rules of Procedure for IL.

 

But...the tolling thing means that, if there is a 5 year clock on SOL....every time you leave the state, the "pause button" is hit on that clock...thereby suspending the running of SOL until you return.

SO...all the time you've spent out of state doesnt count towards SOL.

 

I'm sure rules of service will state that an out-of-state defendant can be sued...and it will list the process.

[four20nik]

Medical is, most certainly considered a contract....but it is either an open account, a stated account, a sworn account or an implied/express contract...

 

Which fall under 5 years for IL

[milkmom]

This is so discouraging!!!! I can't find anything that pertains to medical billing unless it's under some weird title.

 

 

http://www.legis.state.il.us/legislation/ilcs/ilcs.asp

 

I can't even find any reference to credit acts! This is going to be tougher than I thought....

[milkmom]

I moved last year but I have been back and forth during that year. So, when does the date for the SOL start? Would it be the last time a payment was received? That was in 98.

 

 

You'll need to review your rules of service...under Civil Rules of Procedure for IL.

 

But...the tolling thing means that, if there is a 5 year clock on SOL....every time you leave the state, the "pause button" is hit on that clock...thereby suspending the running of SOL until you return.

SO...all the time you've spent out of state doesnt count towards SOL.

 

I'm sure rules of service will state that an out-of-state defendant can be sued...and it will list the process.

[milkmom]

Ok, I might have an area to stir up some trouble. Below is a passage on waiving service. Per that statute, I have not been given 30 days to respond and have not been asked to waive service. The summons was sent through the mail. From what I read, I have to be asked to be served that way, right? Court is on the 22nd and the papers are stamped the 27th which is shy of 30 days. Is this even an issue?

 

Also, I know that I am very legal illiterate. Thanks Four for chiming in and being patient!

 

 

 

 

 

_____________________________________________________________________

 

735 ILCS 5/2‑213) (from Ch. 110, par. 2‑213)

Sec. 2‑213. Waiver of service.

(a) Notice and request for waiver. A plaintiff may notify a defendant of the commencement of an action and request that the defendant waive service of a summons. The notice and request shall be in writing in a form prescribed by Supreme Court rule. The notice and request shall:

(1) be addressed to an individual who is the

defendant or who could be served as representative of an entity that is the defendant;

 

(2) be dispatched through first class U.S. mail or

other equally reliable means;

 

(3) contain a copy of the complaint and identify the

court in which it has been filed;

 

(4) inform the defendant of the consequences of

compliance and of a failure to comply with the request;

 

(5) allow the defendant a reasonable time to return

the waiver, which shall be at least (i) 30 days from the date on which the request is sent or (ii) 60 days if the defendant is addressed outside the United States; and

 

(6) provide the defendant with an extra copy of the

notice and request and prepaid means of compliance in writing.

 

( Limits on waiver. A defendant who waives service of a summons in the manner provided in subsection (a) does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.

© Time to appear or answer. A defendant who returns a timely waiver of service is not required to appear or serve an answer to the complaint until (i) 60 days from the date on which the request for waiver of service was sent or (ii) 90 days if the defendant was addressed outside of the United States.

(d) Effect of filing. When a waiver of service is filed by the plaintiff with the court, the action shall proceed as if a summons and complaint had been served at the time of filing of the waiver, and no proof of service shall be required.

(e) Right to refuse to waive service; effect of refusal. A defendant may refuse to waive service of a summons. If a defendant does not return the waiver provided for in subsection (a), the plaintiff must serve summons on that defendant as otherwise provided by this Code and Supreme Court rules.

(Source: P.A. 87‑352.)

[milkmom]

Looking for items for my suit against them, I noticed that on EX, they have listed that the account is in dispute under the fcba. It's not. It's being disputed under the fdcpa. I am thinking that I can try and get them for misquoting the what is beind disputed. Also, it's is only listed on EX and not on TU. To this day, they have not properly validated per my request.

[dixiedrifter]

OK i'm going to try to help. First off where are you located at now (as in residence wise)?

[Pam]

By the way,

 

I think a lot of courts would frown upon you suing them while they have a suit out against you - unless it's in the form of a countersuit. They like to see all of the same claims arising out of one transaction all litigated together.

 

Anyone agree/disagree?

[Gib]

I'm no lawyer, but I don't you CAN file a seperate suit.

 

Gib

[milkmom]

Thanks for the help Dix! I am located in MA. I have been reading so much tonight that my eyeballs are about to fall out. LOL

 

OK i'm going to try to help. First off where are you located at now (as in residence wise)?

[milkmom]

I thought about that but I was going to sue them first and then in retaliation, they beat me to the punch. I have been reading about whether or not a countersuit is compulsory or and elective. I read that you can as long as the violations are related to the action. (I don't know if I said that right) I didn't think that my violations would be something I could countersue in IL for since they arrise out of the collection of that debt but don't have anything to do with the defense of the lawsuit.

[Jovick]

Let me get this straight here. You requested validation from them CMRRR and as soon as they received it they filed against you the next day? Seems like continued collection activity and a violation of the FDCPA to me. It also seems retalitory as well. Others please chime in.....

[milkmom]

Looking through my paperwork, I see that the hospital had a CSR certifiy that the debt is legitimate. Also, I have noticed that on 10/9/03 this debt was "duly assigned" to the CA. I think that's odd because they have different dates of assignment listed on my credit reports which are all in '99.

[Why Chat]

I have not had time to look through the old threads, but I THINK that I may have been the one to give you the misinformation about the 4 year UCC SOL, however, as I remember, I also advised against doing anything re validation or ITS if you weren't POSITIVE you were out of SOL, and that it would be SAFEST to wait the full 5 years.

 

I am not "into" suing the CA's for violations, the only thing I am reasonably sure of is that any violatons they may be liable for are NOT a defense to a lawsuit.

 

As to filing suit without validating, that has been discussed here several times, even though their filed lawsuit may have the mini-miranda, it is NOT considered a "collection activity" within the scope of the prohibitions of the FDCPA.

 

The only possible "positive" suggestion I can make is that in your answer you state that you gave no permission for the release of your personal medical data, and therefore the suit as filed is in violation of HIPAA.

[milkmom]

I just want to give a quick thank you for all who have posted. All of your comments are helping me so much.

[dixiedrifter]

Ok lets start punching holes in their lawsuit.

 

First off you need to file your answer and list every affirmative defense you can think of and then motion for a continuance.

 

Second, does the court have subject matter jurisdiction? The lawsuit must ahve been filed in the county where the contract was signed, or else in the judicial district where you reside. If its not in either one of those two, then the proper thing to do is to file a motion to dismiss based on a lack of subject matter jurisdiction.

 

You may also wish to file a motion of removal based on inconvieniant venue if the CA is not licensed or bonded in MA. That would be an easy win... judges are not to fond of litgants coming into their courtroom with unclean hands.

 

Another defense besides SOL is laches. Since its been almost 5 years since the cause of action, you could go into court and assert that the plaintiffs have been paid, but the records proving you paid them are unavailable due to the length of time having been passed, thus hurting your defense.

[SassyinAz]

Milkmom,

 

Can you please link to your previous posts that WhyChat is referring to.

 

WhyChat: As to filing suit without validating, that has been discussed here several times, even though their filed lawsuit may have the mini-miranda, it is NOT considered a "collection activity" within the scope of the prohibitions of the FDCPA.

What are you basing that on please?????

 

Filing in violation of Hipaa, as suggested, though without any private cause of action for consumers is as valid as filing in violation of the FDCPA, is it not?

 

Sassy