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Discussion in 'Credit Talk' started by cumbare, Apr 17, 2001.
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Yes, they can put a judgemnet on you. Worse yet, they can proceed from judgement to garnishment and then start seizing assets if any are available. They may or may not choose to any or all of the above. It's their call.
Well, I hate to sound like more of a moralist than I already do around these parts, but if you owe the debt, then you should pay it off if it is possible to do so.
It may not be possible to do so if you can only come up with small amounts of money to make payments with because the interest will eat up small payments faster than you can make the payments, so you end up tossing good money after bad in a hopeless "dog chases own tail" routine.
Sometimes you have to do what you have to do. Only you know what you can do and what is practical for you. I wouldn't advise just ignoring them and hoping they will go away. That's never a wise thing to do.
Have you tried calling them and asking them what is the least amount of payments they will accept and if you agree to accept payments you can afford to make will they stop tacking on more interest and carrying charges so that you have a crying chance to make good on the debt?
If you do that, get everything in writing, tape record all phone calls with them, and keep yourself on solid ground.
That's the best advice that I think I can give you.
Look at the dates!!! Wait. I think I really disagree here. Depending on what state you live in, the SOl (statute of limitations) may have already passed which means they wouldn't be able to get a judgment on you.
What they can try to do it pass it around to collection agencies who will try to "reage" or change the last date of activity to a more current one... then try to put it again on your credit report.
Right now, a collection agency could get it and add it onto your report. But if the SOL has passed... then they're more bark than bite. they can hurt your credit but that's about it.
The creditor and collection agency will try to use your credit report as blackmail to get you to pay.. now, ethics aside
If you pay now you restart the 7 year clock. It's stupid but true. in 2 years, if the last date of activity is correct, it'll drop off and even a collection agency won't be able to add it (legally) back on.
Now, the account could keep passing to collection agencies who might try to bug you... but if the 7 year reporting timelimit has passed you can just send them a cease and desist letter and they will have to go away. Also, after the 7 year mark, if they try to put it on your credit report (by acting like it's a newer account) you can make them validate, remove the info, and pay you for violating your rights.
Now, for the next 2 years or so... collection agencies and/or the original creditor can keep bugging you. Are they?
If you want to do the honorable thing and pay... then give them a % settlement for a FULL removal of the tradeline. Paid in full, settled in full etc will only hurt you more b/c it restarts the 7 year clock.
It's a strange world, I agree. So you either wait it out and it drops off (if the SOL has passed) or you can try a lump sum settlement for a full removal.
Be warned though... again, ethics aside... if you call in and ask about paying they'll assume there's a reason you want to pay (buying a house etc) and you may stir up collection activities on you.
YOu're lucky that they haven't gotten a judgment on you yet. look up the sol and then make the decision. At least that way it'll be an informed one.
OH, even if you pay a % settlement.. don't ever expect to get another First USA card... which is fair.
First things first. To get a judgement, they first have to file a lawsuit and win. Have you been served with a lawsuit?
Marie, a question
but if the 7 year reporting timelimit has passed you can just send them a cease and desist letter and they will have to go away.
He can do that regardless of the 7 year reporting timelimit.
Also, after the 7 year mark, if they try to put it on your credit report (by acting like it's a newer account) you can make them validate, remove the info, and pay you for violating your rights.
I am wondering about the "violating your rights" part. I am thinking that it's not really and truly a violation of your rights, but rather of damaging you by their disobedience to the law. Maybe even "damaging your credit" may be a bit more legally correct. I really don't know for sure what it would actually fall under, but I just question the part about "voilation of rights"
NOt attacking here, just wanting to know what you think or might even know for sure.
Thanks in advance.
Re: Marie, a question
My suggestion would be to contact a lawyer and make darn sure the SOL had expired before I started writting letters and drawing attention to myself. If the SOL has expired, do nothing and wait for the 7 years and see if it rolls off automatically. If a collection agency contacts you, tell them you will mount an affirmative defense-the SOL has expired. But, be sure it has expired.
Re: Marie, a question
I would listen to marie's advice regarding the SOL. Much of what Bill says is NOT correct. The only part that I may agree with is the morality issue.. but really consider the SOL.
If the judgement is served, you can dispute this by showing the SOL has expired. Validation, validation, validation...
Re: Marie, a question
In most states, a judgement can be renewed. In California, a judgement can be renewed if unsatisfied for most of your adult life. Hence, it can be on your credit report for most of your adult life too, because each time it renews, it restarts the clock.
Now, if they don't have a judgement against you, then the SOL clock is ticking down on them. If you are in California, then you are in the clear. The SOL is 4 years. FUsa and their CA's have no legal claim to your assets.
In a couple more years the charge off must drop from your credit history.
At this point, paying them off is only a moral judgement on your part. Only do so if you can give them a lump sum payoff. Otherwise, they could re-age the account.
Re: Marie, a question
If the sol hasn't passed yet and you send a cease and desist letter, you leave them no course of action but litigation. A C&D sometimes can push the issue and make them file. Hence why the sol is so important. If he's close on the sol and he sends a C&D it lets them know he knows his rights.. and it might make them pay attention to the sol when before they hadn't...
I would only send a JUSt a C&D when there's no chance of either additional negative credit reporting or a lawsuit.
Now, for example, say the sol is 4 years and it's been 5 years. Ok, you're in the clear for a lawsuit (and if they did have the stupidity to file you have an ABSOLUTE defense = SOL).
Now, take the same 5 year point and say a collection agency enters the picture. They can do only 2 things:
1. they can add another negative tradeline on your credit report (lets assume it's w/the correct dates here)
2. they can contact you and bug you to collect.
If, in this circumstance, you send a cease and desist then they'll go away and only contact for a lawsuit... which they can't pursue. BUT, now you have another mark on your credit report. You can only dispute with the CRAs and that's a crapshoot.
But if instead you send a validation series of letters to the collection agency, which, under the FDCPA you can require a validation... if they can't validate (which most times they can't) then they have to also cease and desist (as part of the timeframe for the validation) and then you can require they remove all info from your credit reports.
If it doesn't happen expeditiously... or if the CRAs don't respond to the (I have 2 entries for the same 1 account) you now have MUCH more leverage for a lawsuit. No proof of debt leads down the liability road (willful or negligent noncompliance).
If the collection agency admits during the validation that they have no proof... then everything comes off the credit report and they automatically have to cease and desist. See the difference?
It makes a very big difference what you do based on how aged the account is...
Now, with regards to violating your rights: I'm not sure if we're just splitting hairs here or if there's a real difference (in practical terms). this is how I explained it when dealing w/companies, collectors, and attys.
They violate statutory rights (by violating statutory laws) eg: FDCPA, FCRA etc when they:
attempt prohibited contact after a c & d
attempt to collect during a validation period
attempt to collect a nonvalidated debt
do not make a notation on your credit report that the account is in disupte during a dispute
reage an account and place it on your credit reports
keep collection info on your credit reports if they cannot validate the debt
etc etc. in my letter to an atty regarding a debt I put it this way:
xxx actions violated the FDCPA and my rights under it by attempting to collect a debt when the debt could not be validated
xxx actions violated the FCRA and my rights under it by knowingly and willfully dissiminating erroneous negative information yadadadada... causing me harms such as......xxxx
I'm not a lawyer so I can't really do justice to legal theory... so I hope this clears it up some...
I guess if you're referring to 5th ammendment rights... versus the rights given to us by statutory laws... maybe there's a better way to legally phrase it but as for just communicating with a message board... I'm not really seeing the impact.. Hope this helps.
Marie Is Correct
Please check the SOL as suggested by Marie, because the collection agent may no longer have a right to litigated recovery. Under my signature line (below) is a link to the most current SOLs, correlated by state. Look-up the state in which the contract issued, and correspond it the appropriate SOL.
And (as much as I hate to mention it)â?¦
You may want to consider discounting what Bill Bauer suggested, because such is totally inaccurate (and very dangerous) info! Although I (sincerely) appreciate Mr. Bâ??s enthusiasm and eagerness to help, he is far too many times waaaaay off base to be a reliable (hence, trustworthy) source. i.e.; Acknowledging the debt as suggested by Mr. B (calling as â??askingâ? for payment arrangements, etc.) will (in all probability) restart the reporting period, because your debt appears to be pre (FCRA) amendment applicableâ?¦ â??nough said about that!
Bear in mind that the SOL doesnâ??t affect a collection agentâ??s right (legal ability) to attempt recovery (calls and letters), only their ability to litigate (sue) for recovery and therefore acquire a judgment. The SOL is a, snooze they lose concept. They either use the right within established guidelines (the SOL period) or lose it. There is no middle ground.
Now hereâ??s the kickerâ?¦ If the collection agent threatened an action it could not legally engage, like suing you when the SOL has expired. You have a claim under Fair Debt Collection Practices Act, a particular violation (unsupportable threat) that is almost a sure win for you. Be very certain about your stand before throwing this back in the collectorâ??s face, however. If youâ??re wrong it could provoke a lawsuit if allowable, considering the amount you owe (well worth their effort).
Keep The Faith,
Nice personal attack
Nice personal attack and attempt at doing a hatchet job.
Way to go! Keep up the good work.
Does wonders for your own credibility too!
You may want to consider discounting what Bill Bauer suggested. because such is totally inaccurate (and very dangerous) info!
Although I (sincerely) appreciate Mr. Bâ??s enthusiasm and eagerness to help, he is far too many times waaaaay off base to be a reliable (hence, trustworthy) source. i.e.; Acknowledging the debt as suggested by Mr. B (calling as â??askingâ? for payment arrangements, etc.) will (in all probability) restart the reporting period, because your debt appears to be pre (FCRA) amendment applicableâ?¦ â??nough said about that
No Personal Attack
Your statement above is precisely the point I was aiming to make, thank you for the assistance. Clearly youâ??ve a strong propensity to misconstrue issues, not unlike your interpretations of law. Albeit, just to be clear, I in no way â??attackedâ? you â??personallyâ? but rather (and quite plainly for those with a pittance of grasp) what you advised. Nonetheless, I make no apology.
As far as my credibility is concerned, Iâ??ll suggest you use great caution broaching that issue in the future. Doing otherwise may find you facing more than a friendly misunderstanding. That said, I had perceived you as an advocate for learningâ?¦ Do I stand corrected?
Let me see if I understand what you're saying. You said:
What is illegal about suing when the SOL is up? Suppose I don't know about the SOL and a CA sues me. If I didn't use that as my defense and/or didn't show up at court then the CA wins the judgment, regardless of whether the SOL has expired or not. Isn't that correct? If so I don't see how this is an unsupportable threat, a violation of the FDCPA, because a creditor has the right to sue and it's up to the defendent to provide a defense.
I keep coming across so much contradictory information on my quest to resolve my credit problems my head is spinning. I'm just trying to sort it all out.
LOL, I understand your frustration (and chuckling with, not at you)â?¦ Confusion is often part of the learning curve, so hang in there â?? youâ??re on the right track.
Okay hereâ??s the dealâ?¦ If a collection agent were to threaten a suit, using language such as: â??If you donâ??t pay, weâ??ll get a judgment and garnish yourâ?¦â? The statement assumes theyâ??d be successful (key word, assumes) without actually having the authority or likelihood to prevail, if the SOL is stale (expired).
The threat/statement (or a facsimile thereof) would be false because, were the consumer to contend the plaintiff (collection agent) would certainly lose. Therefore, an unsupportable threat would have been made violating FDCPA. So yes, while the defense must be raised by the consumer. The collection agent would have no reasonable basis to hope for a win, if that consumer in fact raised a stale SOL defense. That defense, mind you, need not be raised in court either; but can issue anytime after the threat (your knowing that its false) was asserted.
I hope this simplifies the concept for you, as these things can get heady in a hurry.
Keep The Faith,
Re: Letâ??s Simplify
Yes, that does indeed help! I see what you're saying now. Thanks so much for taking the time to simplify things for me.
I'm sorta laughing myself while trying to figure all this out. It's either that or cry and I don't want to give in to dispair. Grin and bear it, that's my motto.
Re: No Personal Attack
I have no intention of broaching any issues now or at any other time.
I have had more than my fill of broaches and I am sick and tired of broaches, mine and those of others as well.
I will leave broaches to the hair of the ladies.
Have a nice one and a better one tomorrow.
A Good Thing
So glad you see the wisdom of leaving well enough alone. Itâ??s a good thing to be CLEARLY understood. [;-)~
Maybe someone else has already answered this part of your post and gave you the same information. I have not read all of them, so don't know.
What is illegal about suing when the SOL is up?
You can sue for just about anything, no matter how silly or incorrect. That has been proven to death.
Suppose I don't know about the SOL and a CA sues me. If I didn't use that as my defense and/or didn't show up at court then the CA wins the judgment regardless of whether the SOL has expired or not. Isn't that correct?
That is probably up to the judge. It isn't up to the judge to be sure that all of your rights are never violated, all the defenses you might use if you were there. That's not his duty. His duty is only to hear pleadings, legal arguments, briefs, and render judgement based upon the pleadings and evidence.
Some judges may very well render a judgement in vavor of the defendent based on the fact that the SOL has run out on the debt, therefore plaintiff has no right or grounds upon which to sue. Others may just ignore such matters because they were not part of the evidence placed before him.
Basically speaking, if you don't know your rights, don't defend your rights, don't know the law, don't demand your rights under the law, you don't have any rights before the law.
You must understand, of course, that I am not an attorney, and although I do study the law a lot, I am not competent to give legal advice. So the above is nothing more than a personal opinion no matter how many times it has been proven in court.
In my personal opinion, if you discover that the SOL has run out and the judgement was rendered in favor of the plaitiff against you even though the SOL had run it's course, you have three courses of action. The first is to do nothing at all, pay off the judgement and take your licks. A second option might be to go to a law library, look at West's Law or Black's Law Dictionary or any one of the other similiar works available at such libraries and determine for yourself what the law and the decisions based on the same type of problem have been.
If you can find cases where such judgements were overturned in the past on appeal, write down the cites and the pertinent judges opinion stating reason why appeal was granted and judgement overturned then you would have reason to believe that you can use the references and opinions you have discovered, go into court and appeal the judgement and have some reasonable basis to expect that your appeal would be granted and the judgement would be overturned exactly as it was in previous cases. That's how such things are done.
The next thing you could do is to go to a lawschool and tell a law professor a little bit about your problem and they may assign a student to work with you to be sure that you do it the right way and don't make any big mistakes. They usually charge very little or nothing to do that for you or, go to an attorney and ask him/her what they think.
Even if you go to an attorney, you really need to already know the law because much of the time, even though the attorney is willing to go fight your case for you, you still have to help him if you want to get the job done right. Only a very few of them actually know how to get the job done unless it is extremely simple and all that is needed is to file a few papers.
Before I get lambasted for saying that about attorneys, I would reference those who disagree and wish to deride my statements to consider the words of U.S. Supreme Court Justice Black and the president of the American Bar Association who made their feelings public and in doing so stated that one has less than a 50% chance to secure competent counsel in America today, no matter how much one pays for that counsel.
I concur completely with the words of Justice Black.
My personal experience proves to me that they know exactly what they are talking about.