My husband and I are closing on our first home next Wednesday and I knew that inquiring into our credit would "bring out the sharks"...but today I got a call from someone representing an attorney (said the name at lightening speed) for MBNA. Maybe I am just strung out over the close of the house...but now I am all frazzled. He is threatening to obtain a judgement against me (the DLA is in 1999 and the SLA in Arizona is 4 years) and when I reminded him of the SLA he said he would "get a judgement anyways". He actually siad that I am CURRENTLY being sued by them. Then he threatened to do an "assets and liability" search on me...which to my knowledge wouldn't mean anything without a judgement to obtain the right to remove anything from my bank account. If, in fact they are trying to sue.... how would I find this out? I lived in AZ at the time of the contract and now I live in another state. Also...he said they were sueing me for $5K and when I checked my records I only owe MBNA $3K. Also... I asked that he only contact me in writing and he said he would send things to me in writing but that he would not stop calling. He REPEATEDLY failed to identify himself on the phone when he first called. HELP! HELP! HELP! I am panicked. ~WOK
Let me ask the obvious question. Are you panicked because you think this may affect the closing of your home mortgage next week? From what I'm seeing here, there's no way this could happen in time to affect you immediately. If he has in fact filed suit, then surely you will receive a written notice and can deal with it at that time, right? Calm down for a few minutes and breathe. It will all work out.
I hope you got his address. First of all, you need to send by CRRR a letter stating you do not wish any contact by phone - a limited Cease and Desist. Since the debt was originally in AZ and you have moved, they might have started proceedings at your prior home. Check with the county court there to see if any filings have been made against you. It is possible that they HAVE started proceedings, but have just been unable to locate you. If they started that before the 4 years, then you will be unable to use SOL as a defense. If there is not pre-existing court case, they, assuming they have your current address, are required to notify you by mail of the collection activity within 5 days (I believe) plus mailing time. So in summary, confirm that there is or is not a court case. If there is, now that they know where you are, you'll need to deal with it. If there currently is no court case, you need to start logging violations on them. That's why you send the letter with a limited C&D. If they don't have your address yet, be cautious in sending the C&D. You don't want to give it to them. If your new address is on your credit report, then likely they already have it (since they were able to call you). Since you are so close to closing, it is unlikely they can now file anything with the CRAs that would impact that. I assume all of that has already been pulled by the mortgage lender and is good to go. Good luck and keep us posted.
I checked with the clerk of court in AZ and she said nothing has been filed against me. So...they don't already have an open case. Now... if there a chance they will attempt to sue me in Florida... (Where I live now). Or can they only sue me in Arizona (where the contract took place)?? Obviously if they don't have an open case number then they are outside of the SOL. What should I do now other than start a record of all of their calls? I need to make certain that I am protected. My husband and I have just finished cleaning up our credit as best we could and the remaining items will age out within 2 years, so I can't afford to get a judgement. I know alot of you are well versed with dealing with this kind of matter in a legal manner and I just need all the help I can get. Thanks! ~WOK
Also... to respond to the question asked as to why I am panicked...I guess there are several reasons. 1) I am under enough stress right now as is and I'm going to implode here soon. 2) I am afraid of them damaging our credit with a judgement and therefore being unable to refi in a few years to better our interest rate (we have shaky credit - all the bad stuff is old- and we have been trying to rebuild over the last 2 years and so we have a sub-prime rate). 3) I am afraid of them getting a lein against the house. 4) I am afraid of them garnishing my wages or of going after my tax returns or savings accounts. I am trying to take a deep breath and chill out but I am a bit frazzled these days and thats why I came here to get myself some perspective by talking to people who are very knowledgable. The more I know about things, the better I generally feel. ~WOK PS~ How effective is the affirmative defense? Since I cannot afford to fly to AZ... can I send my response via mail?
It sounds like things are under control to a certain degree, and the panic feeling is generated from events that will all happen in the future ... or not at all. If you are certain about the SOL and the Date of Last Activity, then you should be able to concentrate solely on getting into your new home, and following the directions you find here (such as the C&D) until such time as they file the lawsuit. Keep in mind that they are liars, and they are trying to scare you. Do not accept thier phone calls, it's a tactic to make you want to pay them. When this gets moved to only communicating in writing, I think the emotional side will settle down for you, and you can deal with this on your own terms. I'm not a legal expert, but from what I've learned reading this board they will file in your state of residence and if they do not you can move it get the court changed. You should be able to confirm this with your local court, with a quick phone call I would think. That might be an easy way to put your mind at ease. Then if it does see the light of day in court, you will use the affirmative defense that this is SOL. Meanwhile, you can ask for them to verify the date of last activity so you can see if they have any dates from what you recall. Make sense?
I double and tripple checked on the SOL information. I have 2 crdit reports showing a DLA of 7/10/99 (which is 100% accurate. I have had no contact with them since that time) and in AZ the SOL is 3 years and in FL (where I currently live) it is 4 years but according to the way the laws are written in FL, if the "actionable" part happened in another state then the amount of the SOL does not exceed the SOL in the originating state. So, either way I am cool. The account is also charged off and has been so since 2001 (according to 1 credit report and 2000 on another). So, they could not have re-aged it further legally. Well... they couldn't have re-aged it further legally no matter what since July of 1999 was the last date of any legitimate activity. I am going to go ahead and send the letter you suggested and also send the whychat letter RE: SOL expiration. Hopefully showing them that I mean business and know my stuff will discourage them from wasting their time on a frivolous lawsuit. Is there any advice from anyone who went to court on an affirmative defense?? Also... I found out that the firm needs to be licensed to collect a debt in this state and to pay a bond to do so... where would I find out if they have a current license? Thanks so much all for you timely repsonses! ~WOK
Usually to find out about the licensing you would go to the Dept of Licensing (or whatever they call it) for your state. If you can't find it call the attorney general's office and ask them. Some states have a web site. I've never been to court on this, but the reason it's called an "affirmative defense" is that there is no rebuttal to it. All you have to do is go to court and tell the judge when it went delinquent and that there have been no payments since then, and it is out of SOL. The judge will send them packing.
