Legal Question in Credit and Debt Law in California

The fact that Sears had "charged off" the debt does not change whatever rights it has to pursue you for the debt. As such, any "charge off" does not give you a defense.

The statute of limitations is four years, but not necessarily from the last payment. It's more likely the time when credit was no longer extended to you, and demand was made for payment in full. I also assume that CA law applies to the statute of limitations, but that will be controlled by the terms of your agreement with Sears.

The credit card application is not otherwise particularly relevant, unless there is a real dispute as to whether this was your account.

You need to appear at trial and present your defenses. The focus will be whether this is really your account, and whether the statute of limitations has run -- all the stuff about phone calls is irrelevant. I doubt the fraud claim will be particularly important to the judge, unless you can prove it was fraud, and that you reported it to Sears.

Best of luck.

This service is set up to answer specific questions, not to provide a complete review of a legal situation or to prepare you for trial. If you were not provided complete discovery responses, you should have made a motion. The fact that Sears charged off the debt is an accounting issue. You, like many people, seem to think that charging off a debt cancels it. That is wrong. It means that for accounting and tax purposes the creditor converted the account from an asset to an expense. When you buy something the merchant credits an asset account - inventory - and debits either cash or an asset account - your credit account. In accrual accounting the merchant recognizes income at the time the sale is made, regardless of when you pay your credit card. If the credit card goes unpaid for a certain amount of time and after reasonable attempts to collect the money, the merchant can elect to reverse entry that showed the income by entering a "charge off" on its books. This entry debits the bad debt expense account and empties the money owed out of the asset account. None of this precludes the merchant from either selling the debt or collecting it later. It just means that if it sells it to a bottom-feeder collection agency, or otherwise gets paid anything for the debt, they must recognize it as new cash income. So the bottom line is that unless this is not your debt and you can prove it - you better start figuring out how to pay it, or talk to a bankruptcy attorney.

I'm guessing Midland's case will be a declaration in lieu of live testimony (they should have served this on you by now) that is from a Midland witness that tries to prove that a stack of attached purported Sears billing statements are the real deal which were mailed to you and you never objected to them. And the Midland lawyer is counting on you being there so he/she can grill you and get you to admit you owe this debt but just dont' have the money to pay it. (This admission will only cook your goose.)

If you hire a lawyer, your defense could be focused on challenging their proof, that is the inadequacy of Midland's proof that the alleged Sears records are valid. One must assert that the Midland witness cannot establish that the alleged records of Sears are valid unless someone from Sears with the appropriate knowledge of Sear's record keeping comes to court to testify as to the authenticity and other foundational matters . Unfortunately it is likely the plaintiff atty will be able to get away with this tactic of relying on a written statement from Midland unless the correct objections to the evidence & the declaration are made. That's what consumer protection lawyers that defend these cases are trained to do-- make the right objections at the right time. (its like a hockey goalie knowing how to block the puck and when-- remember to keep blocking.)

If you go to the trial to defend yourself, then chances are that you will become the star witness that proves up the validity of the Sears records no matter how much you yell "objection, hearsay" -- so unfortunately people like you, facing small debts claims purchased for pennies on the dollar by the grubby group of debt buyers, are in a quandary when it comes to inexpensively defending themselves. One way is to hire the defense lawyer at the last minute at a reduced rate. But that has its risks too since the case may be already screwed up somewhat by a pro per defendant.( I like to do home repairs too to save money but it generally ends up a worse problem in the long run.)

Debt Defendants are better served if certain set ups are in place well in advance of trial, like the appropriate affirmative defenses in the Answer, like a request for statement of witnesses and evidence 35 days in advance of trial.

However, surprising the plaintiff atty by hiring a defense lawyer at the last minute also has certain charming benefits.

I certainly wish you the best.