hi all In Jan. 98 i purchased a truck and after some very hard times i eventually had the truck repoed and sold at auction. well in 2001-02 or there abouts i got a letter from calvarly investments about the truck and i basically told the to show me the contract that I signed or leave me alone. they left me alone and today i got a call from some company in IL stating that i owe them 16000.00 dollars but they well settle for 5000.00 they emailed me the orginal contract that i signed anyways with it being 2008 am i past the SOL in New Mexico? i have never reaffimed the debt or nothing i have never recieved and letters from this company. what are my options should i play the SOL card?
Yes, this is 2008, and the SOL in New Mexico is 6 years. But this is only the middle of May. If you first defaulted prior to the middle of May 6 years ago, you have a valid SOL defense should they sue you. By the way DO NOT believe anything they tell you over the phone unless you're recording the conversation. Get everything in writing printed on their letterhead.
Time for a FOAD letter. Do not use an SOL letter unless you want to get a 1099-c next January (I assure you, it means extra taxes at worst, extra hassle at best).
i believe i did default in late 98 or early 99 so should i send them a letter stating that this debt is past the sol or should i wait and also does it matter that they have the original contract with my signature and they also have where i went to apply for a title the original creditor was arcadia financial then calvarly investments bought it i believe and those are the guys i told to prove it to me or delete it from my credit report so they removed it . now these guys are trying to collect from me. i guess this current CA is trying to pull a fast one on me hoping i dont know the laws.
well i got a call today from the CA and the lady was being real nice till i told her that SOL has run out on this debt then she proceded to hang up on me does anyone know what will probably happen next. also she wanted me to agree to some sort of payment reduction i told her hell no. i believe i defaulted somewhere late in 98 so i should be fine right? also too she told me that there was activity on this account in 10/03. i told her i didnt know what she was talking about. should i still send tha a letter requesting valadation or a cease and desist letter. she also said that she was the processor for the original creditor. who knows what she is trying to do!
The '03 activity could be a phantom payment ... be prepared to prove there wasn't one made by you. Old bank account statements would help here.
got another call from the manager and she told me now that it was 04 when there was activity and that they are trying to amend my credit report to put it back on there. Is this legal once it has dropped off my report?
Not if it never brought the account current. Tell the manager if she succeeds you'll be seeing her in federal court for FCRA and FDCPA violations (actually, her lying to you like that was an FDCPA violation). You might want to get equipment to tape phone calls. This CA sounds moronic enough to make you some money.
More lying, yelling, some good cop bad cop, possibly weirdly worded seeming threats to take "action". When they get particularly out of hand, ask them to tone it down a bit because you are also trying to watch Jenny Jones. Is what you "believe" actually the case? I doubt valadation will give you the true SOL. You should figure that out from your records. Is there any point in a cease and desist letter other than making their response now instead of later? Later is more likely to be after the SOL.
Dumb Bob I know it was around late 98 because they repoed the truck and then they told me if i could come up with 1400.00 that i could get my truck back well i wired them the money called them up and they told me it was too late to get my truck back so i went and had the wire transfer cancelled and that was the last i ever heard from them since 98 so i should be out of the sol for NM right as i have never given them a dime since then. anyways get this i got a letter from them today postmarked May 17 2008 and in the letter they say i have until the 17th of May to accept this offer and if i do accept this offer they WILL not report anything bad on my credit report. is what they said a violation?
This is 2008. 2008 minus 1998 is greater than six. Is six years the right SOL for NM? You signed this in NM, you lived the entire time in NM, nothing could've tolled anything? Are you referring to the FDCPA? You can assume that if you point out something that is a violation of that act, they will claim it was a mistake. That's a "safe harbor". So you need to find ways to make sure you can prove that their actions were not mistakes. Another ploy would be to claim that they never said they would report it on your credit report if you didn't accept by the 17th of May, they said they wouldn't put it on your credit report if you did accept. Isn't that clever? Read the language carefully, I think they could be tricking you.
well now i am nerveous because i dont have any records from the 98-99 years (ex-girlfriend took all my info in a lock box) from all the conversations i have had with this CA they are trying real hard to make me say that i will accept this settlement. and in the letter they sent it states " as per our converstation we the CA agree to the settlement and i told her that i would like some sort of verification and she kept saying do you agree to the settlement and i told her no i dont agree to nothing and she said so you are refusing to pay i said no i am requesting further info before i make any decision. and that is when she said they want to amend my report to get it back on there. anyways am i going to end up in court? or will they even procede knowing that the sol has past on this debt? or am i going to get alot more letters in the mail with a bunch of hogwash? and i am positive the sol in NM is 6yrs on written and 4yrs on open accounts.
It would be a good idea to read EXACTLY what your state laws say about what it takes to turn an out of SOL debt into a new one. It might require something in writing and that might be why they are trying to get you to agree to it in writing. So you are not refusing to pay? I think you need to read your state's laws very carefully. I bet they want to amend your report. It's supposed to be a violation, I think, of the FDCPA to knowingly sue someone on an out of SOL debt. That doesn't mean they won't do it. They might just say that you reaffirmed it or that there was in fact a payment made sometime within the needed number of years. Then they'll hope you roll over and let a default occur. This is pretty effective, probably works 90% of the time. But the SOL in NM doesn't end the obligation, it just means that you have an affirmative defense if they sue you. They can call and write you FOREVER, well, until you assert your FDCPA rights and tell them to not call or write you. Then they'll sell it to another CA and restart the process.
Language like that is known as "overshadowing" ... as in, the tricky language they used caused you to believe you didn't have some right you actually had because the language "overshadowed" the protection provided by the Act. Overshadowing isn't as easy to win on in court as it once was, but it's still an important part of FDCPA jurisprudence.
A flat out refusal to pay moves a claim from one place in the CA/JDB's flowchart to the next. That is why they want to find out if you flat out refuse to pay. If you refuse to pay, the people who are working it right now stop working it and send it to someone else within their organization, or outside their organization. If you refuse to pay, it could go into their "dead" file, it could go to an outside attorney, or it could get sold down the line to the next JDB. Unless you absolutely can't stand the harassment and/or know that it's undocumentable or beyond SOL, refusing to pay is perhaps not the best approach, because it helps your opponent know what to do next, whereas being obstreperous and inquisitive without actually refusing to pay may lead to them handing out information to you (debt validation) that will reveal the weakness of their situation, or their improper reaging, or you may just get lots of violations on tape or in the mail, and in any case it uses up something valuable that the other side can't get back: time. They will have wasted their time trying to get you to pay, and they will have moved that much closer to the SOL clock running out. Repeatedly inquiring whether you refuse to pay is also an intimidation tactic ... because you think that if you do refuse to pay something bad may happen (an unspecified something bad that frightens the ignorant). If you know what they're going to do, or at least have a fairly good idea, it's not so frightening.
question the ca told me that they did an inquiry on my credit report to see if i could pay back the debt in question? Is this legal?
If you haven't sent them a full C&D it's legal regardless of whether the debt is in or out of SOL. But if it's out of SOL and there's a C&D, permissible purpose no longer exists. As for the SOL ... it's possible that the NM on a repo is 4 years. In the UCC secured transactions model code the 4 year SOL is the last section ... which makes it easy for states to lop it off if they want to keep their written contract SOLs consistent, or if they keep all their SOLs in one place in the statutes. You want to check the secured transactions part of NM's UCC. In any case, I think this gal is pulling stuff out of her a** to try to convince you that you still must pay. And I doubt that's the case.
I believe there are FTC opinion letters to the effect that if you send a C&D, you leave them with only legal options (suing). Well, it's an FDCPA violation to sue past the SOL. So if you send a C&D after the SOL and they pull, there is no purpose whatsoever for them to do so. Ergo, it's at the very least an FDCPA violation and very probably an FCRA violation as well.
