Help with abandoned lawsuit

Discussion in 'Credit Talk' started by Riddley, Jun 3, 2011.

  1. Riddley

    Riddley New Member


    I have a credit card account on my report that was last paid in 2006. The original creditor is no longer on my report, but the account has been passed around to a series of collectors. Due to job issues, etc etc, my response has been generally to ignore phone calls and letters over the years.

    Last summer I was served in big kids court (~$6000 w/interest) by midland financial. I put together a basic answer which was cobbled from info that I had gathered on these sites. Mainly that the company has never proved to me that I owe them. The case was assigned to arbitration, but before the date was set, I received a notice that the company was withdrawing the complaint.

    Not quite one year later, the collection account is still on my report, and they still periodically send invoices. Depending on which state's SOL applies, the deadline has either already expired, or will expire next year, and the entry will be eliminated from my report in 2013.

    I am now working to clean up my credit, and I am wondering what the best course of action here is. The fact that they withdrew the complaint seems to suggest to me that they don't actually have any paperwork proving that they own the account. Based on that, would it make sense to send them a validation letter even though I am well beyond the 30 days? Should I skip the middle man and dispute the record with the bureaus directly?

    I realize this will all go away in two years, but I would like to speed it up if possible. Is there any likelihood that if I do push back on the collector or bureau, the collector will file another lawsuit?

    Any suggestions or advice will be appreciated.

  2. JoshuaHeckathorn

    JoshuaHeckathorn Administrator

    I would determine exactly what the SOL is before making any decisions about next steps. If it doesn't expire until next year, there's still a chance they could file a suit just before the SOL is up, even though they've already tried once before.
  3. Riddley

    Riddley New Member

    I have yet to find a definitive answer to the SOL question. I took out the card in MA, currently reside in OR (as I did when last payments were made), and will soon be moving to WA. The original issuer was based in (I believe) DE.

    So... MA and OR give 6 years. WA gives 4 or 6 depending on who you ask, or perhaps how the account is interpreted, and DE is only 3. Doing some research, I found a recent NY supreme court case (Portfolio Recovery Associates, LLC v . King) that ruled that the SOL for the state in which the issuer was based at the time of issuance prevails, though I'm not sure if that carries any weight outside of NY.

    Any thoughts?
  4. FCRAlawyer

    FCRAlawyer Member

    Don't do anything until over one year has lapsed between the time Midland dismissed the Complaint (or Motion to Compel Arbitration) for most jurisdictions allow the Plaintiff one year to re-file for a "non-suit" which is a state-law parallel to Fed. R. Civ. Proc. 41. After more than one year has expired, skip "the middle man" and dispute it with the credit reporting agencies premised upon inaccurate date of last activity, pay status, account type, and any blank data field.
  5. Riddley

    Riddley New Member

    Thanks FCRA.

    I just fished out the actual paperwork and it looks like the dismissal was dated May 21, 2010. With the uncertainty about the SOL, I am a little bit wary about provoking them while they still have the opportunity to win a lawsuit.

    Is disputing the account with the CRAs likely to provoke a response from the CA?
  6. FCRAlawyer

    FCRAlawyer Member

    Check the Rules of Civil Procedure in the jurisdiction where the Complaint was filed, but I'd be willing to bet they cannot re-file the matter now that one year has elapsed. The applicable statute of limitations is inapplicable presuming your jurisdiction has a parallel to Fed. Civ. R. Proc. 41. You can visit you state's supreme court website and they should have the Rules published or just Google "non-suit" and the state where the civil action was filed.

    Of course, look at the Order of Dismissal. They may have dismissed it w/ prejudice. Midland, and they're are many subsidaries, is not very bright.

    As to whether a dispute will provoke Midland, maybe, but so what? They have already sued you, I seriously doubt they can do so again for the reasons above. The likely outcome is that they'll verify the account tradeline across all three credit reporting agencies giving you three FCRA violations (if you request re-investigations in the fashion I prescribed - not mine or never late doesn't hook them under s-2b) and three FDCPA violation (although you could have a thousand and it would only be as good as one because it is a per action remedy).

    You're ultimate recourse against this bunch is probably suing them. They do not typically delete much, violate the law, and generally just don't care for it behooves them not to. No one - well a few people out of millions - sue them. You can also sue the credit reporting agencies if you wish. You WILL NOT make a lot of money out of this, but you SHOULD get Midland out of your hair and off your reports. Investing in an attorney is not a bad idea. Some will do it on contingency, some won't. I can't because I'm out of your jurisdiction, but I don't do contingency work because with with the costs, fees, etc., it's actually cheaper for my client's to pay a flat rate or even on an hourly basis.
  7. Riddley

    Riddley New Member

    I looked over the Oregon civil procedure rules, and from what I could discern, there is a "savings clause" which essentially extends the SOL by one year if a case is brought and then dismissed without prejudice in the final year of the SOL. The case law is unclear as to whether or not this applies to cases dismissed before trial...

    "B. A voluntary nonsuit granted before the trial commences is not a
    dismissal within the meaning of ORS 12.220. Vandermeer v. Pacific
    Northwest Dev. Corp., 284 Or 517, 587 P2d 98 (1978); Alderson v. State
    of Oregon, 105 Or App 574, 806 P2d 142 (1991). A voluntary nonsuit
    granted during trial is a dismissal under ORS 12.220, and the additional
    year to refile is applicable. Quick v. Andresen, 238 Or 433, 395 P2d 154

    As far as the particular dismissal, it was indeed without prejudice, and the six years will not be up until next year.

    So it looks like I am on the hook for another year. That being said, I am moving to Washngton in a few weeks, so if they do sue me again, I assume that I would be protected under their 4 year SOL(?).

    Again, thanks for your advice and input!
  8. FCRAlawyer

    FCRAlawyer Member

    In my candid opinion, they are not going to sue you again. My interpretation of the "savings clause" is that they have one year to re-file after a non-suit. After that, it's over.

    Moreover, they dismissed it for a reason. One, you fought back a little. Two, Midland never has very good documents - most are rank hearsay - and they will not call a witness to testify. In short - and this is my experience - they fold when opposed. 99% of people default so why fight someone who is willing to fight back or has counsel. Only Calvary does that and even then, they fold when a legit counter-complaint is served on them. Portfolio will sometimes go to the mat, but their documentation is absurd.

    Furthermore, if they tried to compel arbitration I can only presume that came from the NAF? If so, they have nothing.

    My "opinion" is to dispute the tradeline if for no other reason than to mount FCRA violations, as well as FDCPA violations, in the unlikely event they do sue you again. They can sue you in a new state and Oregon's saving statute would have no applicability; i.e., it is not res judicata. You could use those as counters or hit them first with a Complaint of your own and be done with them. Again, just my opinion and you simply never know what is going to happen in life or in court.

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