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Discussion in 'Credit Talk' started by LKH, Jun 4, 2001.
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SOL on this type of default would normally start to run when you default. Prior to default, there is no reason to sue. When you default, there is a reason to sue and the SOL starts running. But, if they file within the SOL, that stops the clock. They do not need to serve you within that time limit. They only need to file suit. Therefore, if you hid out, they could still file suit and stop the SOL from running.
My guess is that this is one last ditch effort to collect before the SOL runs. I doubt they will try after all this time. Even if they do, you can deal with the problem when they sue.
I would be curious whether any of the regulars here have been sued on a similar transaction. My impression is that, in most cases, the suit is only a threat.
Hi Tom, thanks for the response. I agree that it probably is a last ditch attempt since I haven't heard anything about this in 4 1/2 years. They have not sent me anything that states they are attempting to collect a debt. Aren't they required to do that and give me 30 days to respond to it?
I agree with Tom, and believe she (the collector) is blowin SMOKE! Note how she backed off when you called the bluff, mentioning the stale SOL? Submitting â??paperwork,â? â??Iâ??m not threatening?â? She knows (or darn well should) counsel will never consider a case on deficiency balance, where the SOL is stale! LOL, I have a strong feeling youâ??ve cut her enthusiasms a notch or two. [;-)
If you get any more calls, hereâ??s what I suggestâ?¦ Foremost stay as calm as possible, then memorialize the event (if a similar threat is issued) in writing. You may do this unilaterally, that is without requiring a response. If it happens a third time, consult with a lawyer about what to do next â?? preferably one specializing in consumer or collections law.
Also keep one thing in mindâ?¦ Deficiency collections are a hard nut to crack! Generally speaking the tougher the collector comes off from the gate, the weaker their position is. Clearly since youâ??ve indicated the collector jumped all over you during the initial contact, and suggested suit is possible? Iâ??d guess (and probably wouldnâ??t be too far off) that she knows her dog donâ??t hunt!
Nonetheless, just to be on the safe side, check your credit reports to see if a judgment is reported related to this matter. Because one MUST have a judgment to execute before wages can be garnished.
Thanks for the advice Anthony. I am aware that a judgment must be filed before a garnishment can be issued. I was never served and there are no judgments against me. And she definitely started off by yelling and screaming until she realized I wasn't quite as stupid as she was hoping for. The one problem I see is that the 6 year SOL is up this month as per my credit reports which show date of last activity of 6/95, so they could file suit in the next few weeks. My other question is still, must they send me notice of attempt to collect a debt in writing and give me the opportunity to respond in the 30 day period before they do anything? They have never sent me anything, in fact, I have never heard of this collection agency until today.
In some states, a deficiency balance on a repo is not enforceable. I know it isn't in VA. By that, I mean, they can try to get you to pay it, but they can't do anything to you if you don't. I know it isn't in VA. Don't know about other states - might be worth checking out.
I'm repeating myself.
Actually not a problem... The SOL period starts to run from date of initial delinquency, not when the item was reported to CRA(s). Certainly you were delinquent sometime before the vehicle was popped (repoâ??d), and thatâ??s when the SOL started to run â?? predicated on no additional payments being made. Providing no reset of statute was engaged, by way of payment youâ??ve made since for instance. The SOL appears to have already expired!
Recheck the applicable statute using the URL below (believe me I know these to be accurate). If you still come up with a six (6) year SOL then Iâ??d say youâ??re on very safe ground, based on what youâ??ve stated. Therefore, when (if) the collection agent sends a validation notice per Â§809 of FDCPA? A Cease & Desist letter from you would be in order, because whatever bark the agent puts forth has no teeth!
I was wondering why ohio is left blank under the open category on your URL. Does it mean their is no statute for open ended accounts? Just wondering? I live in Ohio.
No it simply means I havenâ??t obtained conformation of the appropriate statute, if applicable, thatâ??s all. In short Iâ??m not certain about that portion of Ohio, sooooo itâ??s been left blank.
Anthony is up late again. Gosh, I thought that I was crazy. Especially since I must start working again in 3 hours. Well, sometimes a sacrifice is necessary to achieve ones goals. In my situation sleep deprivation will be a large part of my life for the next couple of months. Thanks!!!
By the way from the Ohio Statutes it looks like its 6 years.
I sent a validation letter to Plaza Associates a couple of months ago demandion validation of a debt.
I sent them other letters, including estoppel and claiming that they had violated FDCPA although I did not state how or why they had violated.
At that point, I got a letter from their attorney in New York which stated that his client had broken no laws and that Plaza had made at least 6 phone calls to my home in an attempt to resolve this issue but to no avail.
His letter also had a standard statement at the bottom which said that this was an attempt to collect a debt and all of that standard wording.
Did that letter violate the FDCPA rule on no communication allowed until validation had been completed?
Re: I disagree with crdt dfnse
My impression is that the SOL starts running from the time the cause of action accrues. What that means here is that it is either when you first stopped paying or when they repossed the car, sold it, and found out what the deficiency was.
Crdt Dfnse seems to be arguing the first, when you stopped paying on the loan. I disagree because at that time, they do not know how much you will owe, because they have not sold the car yet. You may not owe anything. And, you still had the option to start paying again.
I agree with the second, when they repo the car, sell it, and determine the deficiency. Only then do they know how much you owe, if anything. That is when they first have a cause of action they can sue you over. So, if that is the case, then the SOL is still running.
Having said that, I still think the CA is bluffing. I would wait it out.
As was said above, they cannot garnishee your wages until they have a judgement.
Thanks Anthony and Tom for responding.
Breeze - thanks for your input. In Arizona the deficiency is definitely recoverable, but, it does appear that the statute has run and they are out of luck. I hadn't heard anything about this for over 4 years and I'm sure the only reason I was contacted was because Junum was disputing it.