I have read and read and have only managed to confuse myself. Here is the situation - Bought car in 97 in Indiana. Repo'd in Florida in 2000. I now reside in TX In any case, the OC is reporting the account as a charge off on all 3 bureaus as a 9,076 writeoff. (Incidentally, though they knew where to come to pick up the car, they sent all the correspondence to the address I lived at in IN when I signed the contract. Seems strange) I have a letter from The Sagres Company dated 1/01 showing an amount due of 4,217 principle and 471 interest. I honestly don't recall if I ever received a copy of what the car sold for at auction, I was going through some personal trauma at the time and didn't pay much attention. Questions - 1. Can they still sue for the deficiency? The SOL in IN for written contracts is 10 years (bummer) but I haven't been able to figure out what the SOL for a deficiency is. 2. Shouldn't the balance being reported be 4,688? 3. TU in its wisdom is reporting the same account, same creditor, twice - but with different account numbers. One is showing as a charge off with DOLA of 7/00, the other shows 90 days late, DOLA 8/99. I haven't heard a peep since 1/01. I'm cautious of disputing with TU because I don't want to wake the sleeping giant, so to speak. The OC hasn't updated with EXP since 2/01. Any thoughts on how best to proceed? Thanks!
The SAFEST thing to do is to wait until 2004, (4 year UCC after repo sale). The written contract was voided by the repo, however, IF there was a legal repo, and IF you were sent notification within 2 years of the sale of the deficiency, THEN there is a 4 year UCC SOL for filing for a judgment on the deficiency. The starting date is the date of the sale that created the deficiency. Technically speaking, your reports are correct. You WERE in default on your original contract on the dates shown, (there should be no balance showing) and whoever repossessed the car, or whoever the deficiency account was transferred to is accurately reporting the date of the repo as the date the deficiency was created.
Thanks for the speedy reply! At the risk of sounding dense - Why can they report a different amount charged off than the amount of the deficiency? If they recouped enough from the sale that I only owe the 4688, isn't that the actual charge off amount that should be shown? Why can the OC report 2 separate line items for the same account? With different status? TU is the only one that does this. EXP & EQ both report one line item as a charge off. The problem is I would like to apply for a mortgage later this year and I don't want to be hit with a lawsuit at a critical time. Is there any chance that they might accept a settlement and either delete or upgrade the reporting? The OC is National City Bank.
The chargeoff amount is the balance that was due on the car note when it was repo'd. The collection amount n the deficiency is the $ difference between the chargeoff amount and the $$ the car sold for at auction. Example- the payoff was $10,000 the repo costs were 1,000 it sold at auction for 6,000 the deficiency is 5,000 ($11,000 - $6,000) I don't think you need to worry about a judgment (since the notices were sent to the wrong address), and if you contact the CA for a settlement you will likely cement the entry to your report. I suggest you wait until Nov. and send a dispute to the CRA's that are reporting it, that it is not yours.
Look up Barnett Recovery Corp. v. Johannesson, No. 95-6952 CI (Fla. 6th Cir. Ct. June 4, 1996) The Judge ruled: "The amount received at a dealers-only auction is NOT the fair market value, therefore, the trial court was CORRECT to find the sale was COMMERCIALLY UNREASONABLE. The secured party then failed to carry its burden to show the fair market value of the vehicle was LESS than the amount of the debt". Is it possible that if the debt does not legally exist as determined by this case law, then what are the ramifications of attempting to collect over statelines and using the US Mail System?
I will check out that case tomorrow (eyes are going crossed at this point) but it is definitely an interesting suggestion. Thank you for the information. Is it unusual that the CA is not reporting to the CRAs? and that the OC has not reported for 2 years? Does that typically indicate that they don't see any value in pursuing the account, or are they just lurking in the shadows waiting for me to try to get financing somewhere? I am a little puzzled by the timing that WhyChat is suggesting. In the first post, you advised waiting until 04 (I'm assuming 7/04 as that would be 4 years from the sale), then in your second post you say wait until this November and dispute. I'm not questioning your advice, but would like to know the reasoning.
If you dispute in Nov.during the Holiday season, you will likely have it removed intime for your proposed home purchase. To be ABSOLUTELY certain there is NO WAY any action can be brought against you (I believe it is very UNLIKELY), you should wait until 7/04. I say this as you have NO record of what was actually provided to you regarding the repo, or how and why notices were sent to a prior address. IF they were sent to your last know legal address, and IF they were sent in a manner that fulfilled the legal reqirements of notice of sale and your rights and notice of claim of deficiency, then you would still be within the 4 year SOL until 7/04.
The amount received at a dealers-only auction is not the fair market value, therefore, the trial court was correct to find the sale was commercially unreasonable. The secured party then failed to carry its burden to show the fair market value of the truck was less than the amount of the debt. Barnett Recovery Corp. v. Johannesson, No. 95-6952 CI (Fla. 6th Cir. Ct. June 4, 1996). A secured creditor is not bound by the valuation of the collateral as stated in the secured creditor's affidavit in support of its motion to lift stay in bankruptcy court. Id. A secured creditor's entitlement to a deficiency judgment depends upon the commercial reasonableness of the sale, which in turn establishes the fair market value of the collateral. Id. If it is determined that collateral was disposed of in a commercially unreasonable manner the presumption is the fair market value at the time of repossession equals the entire amount of debt it secured. The secured party then bears the burden of proving the fair market value is less than the debt. Id.
Can someone answer if sol for deficiency is 2 years or 4 years from date of resale???? Pretty important, so if anyone knows for sure and knows where I can find the info, that would be great.
Re: Re: Yet another Repo Question 2 years for a claim of deficiency to be made, 4 years for an action to be filed for collection on a deficiency where legal notice was provided withn the 2 years, all, of course, predicated on it being a LEGAL repo.
§ 2-725. Statute of Limitations in Contracts for Sale. (1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. (3) Where an action commenced within the time limited by subsection (1) is so terminated as to leave available a remedy by another action for the same breach such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute. (4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before this Act becomes effective.
Re: Re: Yet another Repo Question According to [2], the cause of action starts when the breech occurs...which, wouldnt it be the time of repo? Also, if no notice prior to the sale is received and if it is required by that state, that would make it an illegal repo, right? Same goes for if no notice was received after the sale stating the deficeincy amount, right? Does voluntary repo make a difference?
Re: Re: Yet another Repo Question The problem I have is that even though the law IS on our side concerning these illegal repos getting the OC's to respond is like pulling teeth. I cannot sue them for UCC violations anymore because i had 4 yrs from "cause of action" ofcourse same for them, I am past SOL. So they just are reporting and letting this take its natural course on my CR. When i saw the repos on my CR I wanted to make this as burdensome for the OC as possible..1st asking them to verify the acct and asking them to send proof that I ever had an agreement with them. If so, prove what I owed. if they can prove that iw as going to try to get them to prove they did the repo legally BUT they havent even responded to my 1st request, yet they verify with the CRA's thus leaving me with very few options but a lawsuit. Which who knows how it would turn out. If anyone has had success with this same scenario feel free to chime in.
Re: Re: Yet another Repo Question Frankly, I dont mid letting this rot on my cr...until I know for sure I am past SOL and/or there is NO legal recourse they can take. Cant seem to get a straight answer...have been researching and reading, but keep finding conflicting info. If I am sued, need to know the proper defense to respond with. I see your point though...try another request, see what happens, and document the info in your next dispute to cra...if it verifies, ask for procedural request to find out exactly WHAT it is they are verifying. "hello...yes, he had an account" *click* They do this all the time.
Re: Re: Yet another Repo Question Procedural request letters ent late last week. We'll see what they are verifying.
Re: Re: Yet another Repo Question What makes you believe that you ever had any cause of action under UCC?
Re: Re: Re: Yet another Repo Question I see people all over the internet trying to use UCC on consumer debts. UCC and consumer law have many things in common but they are not the same and one cannot go grabbing up laws willy-nilly and trying to make them into that which one believes the law should say rather than what it does say. Another example is trying to use HJR 192 to claim that our money is illegal. The foolishness never ends, and more so when some magician can see how to turn their ideas into huge bucks at the expense of those who want to believe but don't know anything about the law. They become entrapped in these schemes and then get involved in helping support the looney ideas and proclaim them to be true and if one does not believe them he must be stupid or something. I just recently got accused of being a government plant because I failed to see how HJR 192 (repealed in 1933) makes it illegal to coin anything but gold and silver for money. (LOL)
Re: Re: Re: Yet another Repo Question "letting things take a natural course" when it comes to this crap is like trying to pee out a kidney stone.... (sorry...rough week)
