Hello all. OK - so by my being here, I guess this tells you I've had some credit issues. Back in 2003 I defaulted on a credit card I had started using in 2000. I lived in FL at the time that I got the card (I think) and when it defaulted. In 2005, I moved to PA. Then, in 2007, I moved to WV and bought a house. I recently moved back to PA and since 2 days after the phone was installed, I started receiving calls from a Collection Agency. I had pulled my credit report when I bought the house in WV, so I knew the name of this CA had to do with that old CC. (there are 2 entries on my credit report - one from the original creditor and one from this CA - apparently, not enough to keep me from getting both a house and a car in 2007, but, I digress...) My question is - in which state would the SOL apply to? FL and PA are each 4, WV is 5. Any which way, it's well over that, but how do you determine and does anyone know about this 'tolling' stuff? I've tried to call an FDC attorney but have not rec'd a return call yet and I'm kind of freaked out. The CA said today that the next step is a summons, and that it's not their fault I've never received any notifications they claim to have mailed because they did not receive them back. They will not resend any paperwork when I've asked them to verbally. What should I do?
I think it's generally the state in which the credit agreement was first made. There are a few exceptions, however. If the original card agreement contained a "choice of law" provision, it will -- in theory -- make that state's law apply. These usually read something like "this agreement is bound by the laws of the state of Florida". However, the judge does not have to enforce this clause. It's certainly a valid defense that should be raised if you're ever sued, but it's far from bulletproof. "Tolling" can more or less be replaced with "pausing". If you open a credit card in FL, default in 2003, move out in 2005, and return in 2009, the SOL will expire in 2011 (assuming FL's SOL is 4 years, as you said). Unfortunately, as I understand it, tolled SOLs can last forever. I may be wrong, but if you open a card in FL in 2003, default in 2005, move out in 2007, and never move back, you can still be sued and won't have an SOL defense.
Thank you for your response. What should I do going forward? They refuse to send me any documentation when I've requested it verbally saying that they sent that in 2006 and have done their part legally (though I've received nothing.) I have never heard anything from this CA directly, I have only seen the entry on my Credit Report. And to start calling me now - 6 years later?? The woman who called me yesterday said she was going to note the account as "Refusal to Pay" since I requested the information. Then today, they said it litigation has been filed and the next step is a possible summons. WTH does that mean? What can I do here?
Well, you need to assume that it means exactly what it says and take appropriate action which is to first of all go to the clerk of the court in your county courthouse and ask to see your public record. They will show it to you on a computer screen. Look for any judgments that have been filed against you. If there are any you need to ask the clerk for copies of all the paperwork in the court file. Next ask the clerk if the court records are available on line so you can follow the case on line and ask them to write down the url for you so you can follow it from home. If it isn't available on line then you will need to personally check the file about once a week regardless of whether your record has a judgment on it or not. If you have a judgment then you need to take the paperwork home and prepare your case. Your preparations should include a validation letter for the attorney, your response to the complaint, a certificate of mailing and you will probably want to include a good set of admissions for the plaintiff. Of course, that sequence can vary depending on what defense you have available to you if any. My links which you will find in my signature line below contain a great more information about how to do all of that and much, much more. In the event that you don't have any judgments listed and none are filed within the next 15 days or so then I would consider filing a federal lawsuit against them for threatening to file a lawsuit which they had no actual intention of doing. Federal courts have ruled that if a threat has been made and no action taken within 10 days then a violation has been committed. The theory is that the lawsuit should have already been filed when the threat was made otherwise there is no way to prove whether they had actual intent to sue or not.
