Can CA pull hard inq on 11 yr debt?

Thanks herauntsis. Their response to my request for validation was that they were not going to attempt to collect or sell this account any further, and they are going to stop all further contact with me. The issue I have now is that I want that inquiry removed, which they say they won't do. However, I know there is no way they could validate this debt either, which is why they said they wouldn't make any further efforts...
Mike
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I know there is no way they could validate this debt either, which is why they said they wouldn't make any further efforts..=======This alone shows they pulled a report knowing full well it was an uncollectible debt.

****** ******** ******

Can they do that 6 years after the SOL has expired? This account, or rather collection of accounts, has been dead for many years.
Mike
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I think there is something in the FDCPA about it being a violation for a CA to attempt to collect on a debt that is past the SOL.Pulling your report is an attempt to collect there fore it seems you have the CA on a 1000 dollar violation.Send the CA a demand letter for $500 and deletion from your report or you will sue for $1000.
LB 59

 

Lets not lose our focus here.

The base line question here is: On an 11 year old debt is it legal for the CA to cause you "financial damage" over the acct. Or looked at differently would it be illegal if they did?

I believe the answer is a resounding NO, they can't! And YES it would be (respectively).

Now we can discuss what "financial damage" I'm refering to. That would be causing a collection inq on the CR.

We may want to focus on these 2 simple questions.



PS. John you seem to know some about the UCC. Unbeknownst to many the UCC has a lot to do with collections, dunning notices, and the "paperwork battle" that is faught via the post office. I'm currently working on using the UCC to handle the OC regarding validation. Wanna help?

 

LB
I hate it when that happens! The tap and die hurts when it goes in to fix that. OUCH!

JohnM

 

Butch,

I would be glad to help, feel free to email if you like. I think the UCC may contain a few tricks that can be exploited to our advantage.

My knowledge of the UCC comes from my business. I use UCC filings to protect our security interest in goods delivered and not fully paid for. We make a customer sign a UCC financing statement, and record it at the courthouse, this put others on notice that we have retained legal rights to our equipment until the bill is paid in full.

If the customer tries to sell the equipment before we are paid (he does not have clear title) he is guilty of fraud and WILL be prosecuted for criminal fraud as well as the civil suit we file to collect our money. The possibility of jail time causes most people to think twice about trying funny stuff and we usually get the equipment back if they default.


JohnM

[Editor's note: removed email upon author's request. -pbm 09.23.02]

(Man that makes me sound like a big bad collector, but this is large commercial equipment that can be worth $250,000+, and the sales contracts are written really tightly. I donâ??t go to a little old Grandmaâ??s house and take back her washing machine! We send a crane and a rigging crew to repo our stuff)

 

You've got mail.

 

Thanks cma for asking the question, and a big thanks to all who have responded....Great Thread!

Tuit

 

Some courts have held that collecting attempting to collect on a time-barred debt is a deceptive practice and a violation of the FDCPA.

I think the easiest thing to do is to send a cease and desist letter, I know I posted that previously, but specifically say cease any and all communication, direct and indirect.

Then, should they pull your report again, it doesn't matter which courts have held it is deceptive and which have not. A communication is defined by the FDCPA as:

§ 803. Definitions [15 USC 1692a]

As used in this title --

(2) The term "communication" means the conveying of information regarding a debt directly or indirectly to any person through any medium.

We've debated whether a credit report is a communication before, I think though in your circumstances you could definately make the argument that it is.

Anyway, here's some dandy links and information that I found and WhyChat's SOL time-barred letter (I should have gone to his site, FIRST).

IF time-barred then there is no legal way left to collect -- that makes the remaining ways deceptive and illegal.

from: http://www.mylawyers.com/articles/rb_old_debts.html

Courts have held that a lawsuit filed to collect a time barred debt violates the FDCPA. However, the collector in the above example does not sue, it merely sends a letter asking the consumer to transfer the balance of his or her old debt to a new credit card. The deceptive and misleading aspect of this practice is the failure of the collector to inform the consumer that if he or she transfers part or all of the balance of the old debt to the new credit card, acknowledges the old debt, or makes payment toward the old debt, that debt is renewed and the consumer may once again be sued (and use other legal remedies employed) to collect that old debt.

from: http://www.courts.state.pa.us/OpPosting/Cwealth/opinions/0398/tc0lzen6.wp5.

In Kimber, the defendant debt collector brought actions against approximately 200 consumers in an effort to collect debts clearly barred by the applicable statute of limitation. The court found that the defendant had violated the federal act in attempting to collect debts obviously time-barred. The court stated that:

These statutes [of limitations] â?¦ 'afford[] plaintiffs what the legislature deems a reasonable time to present their claims,' while at the same time 'protect[ing] defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.'

Here, the trial court, stated that the legal pronouncement in Kimber was sound and adopted the federal court's reasoning. We agree with the trial court's finding that Dr. Cole had violated the Law by filing and prosecuting actions barred by the four-year statute of limitation and by continuing to prosecute the actions after being made aware of the applicable statute of limitations.

from: http://www.consumerlawoffice.com/Violations/violations.html
We have recently seen many attempts to collect checks dishonored more than 3 years ago, which is the applicable statute of limitations. Collecting time-barred debts is a Fair Debt Collection Practices Act violation.

from: http://www.polk-associates.com/articles/ABCs.htm
Time-Barred Debt. Sometimes an "old" debt is bought by a financial entity that was not originally connected to the debt. Buyers of old debt pay a few pennies for each dollar of debt and then try to collect the debt for themselves. For example, a credit card may be offered if the consumer will transfer part or all of the time-barred debt to the credit card. The consumer probably would not be aware that this transaction actually renews the old debt which could not otherwise have been sued upon. This practice is a violation of the FDCPA.

from: http://www.kscourts.org/kscases/ctapp/2001/20011116/86620.htm
In Hustead, the court made it clear that part payment and acknowledgment are distinct means to revive a time-barred claim under K.S.A. 60-520. The court pointed out that pursuant to K.S.A. 60-520, a part payment is an executed acknowledgment that requires no writing to establish it and has the effect of tolling the statute of limitations. 233 Kan. at 877.

from: http://www.gottrouble.com/legal/consumer_law/getting_sued.html

What defenses might I have to a debt collection lawsuit?
First, if the debt is pretty old, it might be barred by the "statute of limitations". For example, in California a creditor must file suit on a written contract within four years of breach and on an oral contract within two years of breach. But you might have lost your statute of limitations defense if you have acknowledged the debt in writing after enforcement is barred by the statute of limitations or paid any portion of the debt after enforcement is barred by the statute of limitations.

from: http://www.carrco.com/newsletter.htm

See this for a comparison, a time-barred CA threatening collection action via a notice and a time-barred CA being silent on the debt being time-barred -- the difference in the two rulings, I believe is in the action of the CA, one making contact and hoping to get lucky, another actually threatening collection action. Reporting and continued reporting; Pulling a report -- is a collection action.

http://www.jtexconsumerlaw.com/TCL_WebSpring2002/pdf_files/Debt_V5N3.pdf.

Collection Agencies and Statute Barred Debts
Limitations Act does not extinguish a debt
A letter was recently forwarded by the Government of Alberta to collection agencies requesting that they discontinue attempts at trying to collect statute barred debts. Reference is made in the letter to certain prohibited practices as contained in Section 116 of the Fair Trading Act, which states specifically:

â??116(1) No collection agency or collector may

(a) collect or attempt to collect money for a creditor except on the belief and good faith that the money is due and owing by the debtor to the creditor; . .

(i) directly or indirectly threaten or state an intention to proceed with any action for which the collection agency or the collector does not have lawful authority; . . .

(k) give any person, directly or indirectly, by implication or otherwise, any false or misleading information; . . .â?

It is suggested that a debt may be considered â??due and owing by the debtor to the creditorâ? even if it may be statute barred. The provisions of the Limitations Act do not cancel debts, but simply make the collection of a debt unenforceable after two years, unless the debtor has made a partial payment or acknowledged the debt in writing in that two-year period. It would seem that if the debt still exists, it would be permissible for the collection agency to obtain an acknowledgement in writing of that debt so that proceedings can be taken. However, it is also suggested that the collector must be very careful not to state an intention to proceed with an action or to give any false or misleading information.

from: http://www.nwjustice.org/docs/200.html

Some examples of disputes of debts are: (1) you don't believe you owe the debt or the amount as stated; (2) you already paid the debt; (3) you had medical coupons to pay for a debt, and the creditor should have billed the state; (4) you were hospitalized, informed the hospital you couldn't pay for care, and the hospital should have considered payment under a charitable care policy; or (5) you believe collection of the debt is time barred (see below).

There are statutory time limitations within which a legal claim must be commenced or it is "barred". The exact time limitation will depend on the basis for the debt or the type of claim being made. Most claims based on written contracts or accounts receivable governed by WA law must be commenced within 6 years; most claims based on oral contracts or accounts receivable must be commenced within 3 years.

from: http://www.collectioncenter.com/FDCPA Paper.htm

ii) regarding the nature or legal status of the debt; Simmons v. Miller, 970

F. Supp. 661 (SD Ind. 1997) (attorney did not violate the act where he

brought action upon a time-barred claim, as he believed that a longer statute

of limitations period applied to the debt);

Wisconsin and now Vermont too! COOL: http://www.state.vt.us/atg/Rule CF104.htm

CF 104.05 Unconscionable Means.

The use of any unfair or unconscionable means to collect or attempt to collect any debt arising out of a consumer transaction constitutes an unfair trade act and practice in commerce under 9 V.S.A. Section 2453(a).

Such unfair acts include (but shall not be limited to) the following:

(a) The seeking or obtaining of any written statement or acknowledgment in any form containing an affirmation of any obligation by a debtor who has been declared bankrupt, an acknowledgment of a debt barred by a statute of limitations, or a waiver of any legal right of a debtor, without clearly disclosing the nature and consequences of such affirmation or waiver and the fact that the debtor is not legally obligated to make such affirmation or waiver; provided, however, that this provision does not prohibit the accepting of promises to pay that are voluntarily written and offered by the debtor;

Sassy

 

from WhyChat's site (LOL, WHY didn't I go here first):

http://community-2.webtv.net/Y-chat/WhyChatsCredit/page3.html

NOTICE TO COLLECTION AGENCY
LAWS RULES AND CODES RE;SOL

(Subscriber]

[Address]

[City state ZIP]

[Collector]

[Address]

[City State ZIP]

[Phone number]


[Date] Certified Mail No.: _____________

Re ; inquiry dated ____: your file # _____


Greetings:

Thank you for your recent inquiry.

This is not a refusal to pay, but a notice that your claim is disputed.

Please be advised that under the TILA section 15 a credit card account is legally defined as an "open" account.

The Act is in Title I of the Consumer Credit Protection Act and is implemented by the Federal Reserve Board via Regulation Z (12 C.F.R. Part 226).

The Regulation has effect and force of federal law.

Open-end Credit Transactions:

Open-end credit includes bank and gas company credit cards, stores' revolving charge accounts, and cash- advance checking accounts.

Typical features:

Creditors reasonably expect the consumer to make repeated transactions.

Creditors may impose finance charges on the unpaid balance.

As the consumer pays the outstanding balance, the amount of credit is once again available to the consumer

Under my State of ________Code #__________
such accounts have a _________ year limit for filing any action for judgement.

The starting date of this statute of limitations being the later of the date of last activity, or the date of first default.

Records show that this date on the subject account #___________ with (creditor name)is __ ___ ____.

Any filing of such action by you, or your representitives or assigns, is therefore time-barred.

Under the FDCPA, any such action, or threat of such action is a violation of the law,and grounds for fines and civil sanctions.

807. False or misleading representations

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.

Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(2) The false representation of-- {{4-30-97 p.6620}}

(A) the character, amount, or legal status of any debt; or

(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

This notication to you is of applicable legal statutes,codes and laws.Other Federal and State laws may apply.

((include this paragraph when appropriate))
Under the laws of my State,(statute # if available) continued collection activities, including reporting of accounts beyond their legal collection date, may be considered extortion and/or fraud and subject to criminal as well as civil prosecution.

Please note that proof of your receipt of this notice may be used by me or my legal representative in further action.I also reserve the right to forward a copy of this letter,and any other pertinent material to the _____(CA lawyer's State) Bar Association.
Best regards,

[Subscriber]print or type name

Sassy

 

Sassy,

This is a quote from one of your referenced links:

The issue has not been resolved by the courts and conflicting opinions have been issued. This is a hard one to argue, you lose some and you win some , it's no slam dunk.

Don't expect your $1000 check in the mail on this one.

JohnM


JohnM

 

Oh no, John, I didn't mean to imply that it was a slam dunk either way.

Just still arguable and gray.

It appears to me to depend on the specific activities of the collector and definately what state you are in.

If they threaten to take any action, that's a no no because there is no action that can legally be taken.

However, if they are calling you or you write and acknowledge the debt, or agree to make payments, or agree to settle -- which I think is the point in continuing to make contact, in some states that tolls the SOL.

Sassy