Conflicting SOL, HELP

[longstreet169]

Question,I live in Calif and I'm getting conflicting answers from the board as to when the clock starts concerning SOL.In my case open end account last payment date is 8/03/98 but charge off is 11/20/00.I have been told after last payment it goes 30-60-90 then 180 days later bringing it to 5/03/99 the clock starts.Now I'm being told the clock started 180 days before charge off making it 5/20/00.You can see my dilemma as in the 1st scenario SOL would be up in a couple days and 2nd scenario will not end until 5/20/04.As I type this I am looking at receiving a summons for court in the very near future(weeks if not days)and I'd like to use SOL as a definite defense. Do I have a case or not??? HELP

[md]

If it were a 180 days before charge off wouldn't that make it earlier not later than the charge off date. The later date you list should be 180 days before, which would be that date of your last payment. Hope that clarifies something at least.

As for what date you would use, I do not know for sure with regards to this. It would almost seem to me that it would be from the day you became delinquent, since that would be when they started trying to collect from you on the debt. That makes sense to me with regards to SOL. Thanks for helping me figure that out.

[md]

If your last payment was made when you said, then by law they must charge off 180 days (not more than 210 depending on their billing cycle) after you became delinquent. It sounds like they waited much longer than that, which is against the law.

If you did make a payment at anytime after you said you made the last payment, it would restart the clock for SOL.

[longstreet169]

6 mo. before charge off is 5/20/00,making the SOL end 5/20/04,thats not good for me,but I believe that 9mo after my last payment should have started the clock on SOL,last pd 8/03/98 + 9mo= 5/03/99 making the SOL end 5/03/03 next week good for me and a defense,I just need to know when exactly when clock starts

9mo after last payment or 6mo before charge off?

[md]

Charge off must occur 180 days (up to 210 days, depending on their billing cycle) after the account becomes delinquent (the first payment you missed and no payments have been made since). If you are 100% certain about the date you made the last payment then add 210 days to the payment date you first missed to be sure of it. Add the SOL and this is when it expires. Try to verify with the OC when they received the last payment, the amount, etc.

[red]

Help help help! I can't seem to get a straight answer about SOL either, and it's maddening. Here are several contradictory clippings about this very issue:

The FTC has adopted the position that an adverse report may be made dating from the date of initial delinquency.

-- from an attorney in Washington State

Possibly all of your debts are past the SOL, (statute of limitations) for legal collection. The starting date to figure this time period is the FIRST time you were late or past due on the account with the ORIGINAL creditor. The $$ you paid to CCCS count towards your balance, but DOES NOT extend your time frame.

-- from a guy who runs a credit-related website

Its from date of last payment to OC or CA.

--from somebody on this discussion board

SOL is based on DOLA (day of last activity), not the date you became deliquient. The only thing that is good for is charge off dates. You can reset the clock on something that is charged off if you pay on it. So even for a charged off debt that a CA buys from 1999 and you paid them something while you were in your SOL, you just added another 6 years that they can sue you for the debt.

--from the same person

To add another wrench into this, once the SOL has passed , if you then make a payment on it to a bottom-feeder CA, the SOL is *not* reset. CA's will try to tell you differently.

(This is in most states, I've yet to find one that it's different, but just in case you live in a very consumer-unfriendly state, I'll cover my butt).

--from a different person, same discussion

Your SOL in Hawaii is 6 years from date of last activity, which would be date of charge off. It's my understanding that the SOL begins from the date of the last most serious delinquency, which would be the charge off entry.

--from somebody else in a different thread on this board.

In MOST States the "legal" SOL starts at the same time the reporting SOL starts, that is the FIRST Month you were delinquent or late with your payment before it was charged off. In SOME States it starts when you last made a payment or made a charge on the account. SO, in California, the FIRST Month you were "late" is the start of BOTH SOL periods.

It is NEVER in ANY circumstances from the "charge-off" date. It is NEVER in any circumstances from your last payment to any collection agency.

Usually, your Experian credit report shows the "date of removal" of an account. If you deduct 3 years from that date, you will get the date beyond which you CANNOT legally be sued.

--from a guy who saw one of my posts on a credit discussion newsgroup

Debts are reported from FIRST delinquency or written off date, not by last activity or last payment. Exclusions would be tax liens, they remain from date paid for 7 years and can remain indefinitely if unpaid. Paying a debt will not restart the clock for reporting it but you could restart the clock for collecting it, so if you pay it, either pay it in full or restrictively, as to have no worries.

A promise to pay or partial payment will renew the statute, many people think that only a renewed promise to pay does this. That is not the case. Either or can renew the statute. In every state where their is the right to file suit on a debtor there is also a time within that the suit may be filed. This is a powerful tool if you are aware of it. Just remember a partial payment, promise to pay or regular payment on the debt can remove the limitation and the period can be renewed!

What state should I use in figuring out the Statute of Limitations? The state statute can be either where the debtor lives or where the contract was entered into. The creditor does have the right to choose the state with the longer statute but the creditors or collectors location is moot.

The SOL is very important when you have past due debts or charged off debts that you cannot or do not want to pay back. When a debt is created, there is an original SOL The date of the contract signing. If you default on a new debt - meaning you never even made one payment then the SOL would be the date the contract was signed by you. If you default on a debt that has had payment(s) then the SOL would be from the date of last payment. Why does this matter to you? Because many- in fact millions of dollars in debt nationwide have an expired SOL but consumers rarely know this. If you pay back the debt after the SOL has expired then you have just renewed it therefore making it collectable for another number of years.

Sol's vary from state to state and the creditor can use your state SOL or where the contract was created. If a debt collector is hounding you on an old debt, be sure to check your SOL before you pay a penny. Additionally there is also an SOL for how long the debt can be reported on your credit. That statute is covered in the Fair Credit Reporting Act. The key to better credit is to acknowledge that a charged off or seriously past due debt will NEVER go current again. It will either be reported as a "paid charge off" or "paid collection account" and neither are good for you. Using an expired SOL as leverage to negotiate a better credit rating can really improve your credit reports.

By offering the creditor or agency a restrictive offer or telling them to cease and desist because a debt is legally expired- you can definitely have the upper hand. Let's face it, if you have to pay a derogatory debt shouldn't you try to get the best deal possible? Of course. Don't count on the collection agency or creditor telling you this either!

--from the website www.carreonandassociates.com

What??! Why do you want to give them money? The statute of limitations has almost expired! If somebody tries to get a judgement, give me a call. Otherwise, don't worry about it. I'm going surfing now. Good-bye. <click>

--from a local attorney

HELLLLLLLLP!!!

thanks,

red

[Swede]

Lets not confuse SOL and reporting period. The 7 year reporting period, which is the time a furnisher can report derogatory information on your credit file starts with the first missed payment that led to the delinquency of the account plus 180 days. THIS HAS NOTHING TO DO WITH THE SOL.

SOL is the timeframe they have to take legal action against you to collect on the debt and that varies by state and type of account. You need to first check what type of account, open ended, closed ended, written, oral, promissary and THEN check your individual state as to how long that period is and when it starts.

Furthermore, they can still attempt to collect if the SOL has passed and they can sue you, because it is up to the debtor to bring up the SOL defense and many of them count on you not knowing.

[longstreet169]

Swede,I have read alot of your posts and they have been helpful,Hows this,I live in Calif,last pay date on this account is 8/03/98 with no more activity,it's an open end account,about 2 weeks I made an offer to pay 1/2 the amount they responded with an attorney's letter to pay TRIPLE the amount WOW WHAT LOW LIFE'S, I believe my states SOL is up & I have a case,What do you think?

[LadynRed]

If you last paid them in 8/98, then the SOL started 30 days later when it went delinquent and you never brought it current. In that case, the SOL EXPIRED 9/2002 - 4 years per CA statute.

Write them a cease and desist letter telling them never to contact you again as debt is time-barred.

[calawyer]

The real question, in legal terms, is when the statute "begins to run". This website, responds to a question from a collector and gives you several useful citations:

http://www.mpbf.com/meeart6.htm

[bingo]

Very nice Calawyer. Many people get confused or, misled by a ca. Hope many folks see this and bookmark it.

[longstreet169]

Very good reading thanks,But tell me what really dictates a promise to pay,signed letter agreed by both parties,possibly an offer letter to pay a portion of total bill,I'm vague on this as usual

[red]

Okay, ye faithful band of clever comrades, kindly tell me if I know what I'm doing, or if I'm hip-deep in the dingaling pond.

Ladynred, an aside to you: I still cannot find an adequate explanation of the SOL, as it applies to my case. I am a professional researcher & writer, and I spent hours searching today yet still cannot find the statutes that pertain to my situation. Hawai`i law websites are a dreadful and inadequate mess!

I already know that the SOL in Hawaii for open-ended accounts is a brutal six years, and for judgements 10 (though I, knock wood, have none). Most of my accounts originated on the Mainland, in states with more forgiving SOLs, but I'm just assuming that the Hawaii SOL applies to me, whether I like it or not.

A couple things you should know: The last payment I *personally* made to this account was in 2/1998. I subsequently made payments through Genus until 9/2001.

So, here's what my three reports look like for one particular account, ASSOCIATES CREDIT CARD...

Transunion CR:

Date reported: 3/1/03

Past due: $972

Balance: $2627

Condition: Derogatory

Status: Collection/chargeoff

Remarks: Charged off as bad debt/canceled by credit grantor

Two/seven year pymt history: None on report

Experian CR:

Reported since: 6/1996

Date of Status: 4/2002

Past due: $972WO: $2627

Status details: Acct. scheduled to continue on record until 10/2008.

Creditor’s stmt: Closed @cred grntr’s request

Acct. history: 30 days late as of 3/98, 8/98, 10/01; 60 days late as of 9/98, 11/01; 120 days late etc.

Charged off 4/2002? (9 dates listed, but that’s the earliest CO date)

Balance history: Last pymt 8/01 (this was thru Genus)

Equifax CR:

Last activity: 9/2001

Acct Status: Chargeoff

Balance: $2627

Past due: $972

Date reported: 3/2003

Times past due: BLANK

Previous high status: 90+ days past due 12/01 (from the last Genus payment in 9/01)30 days 03; 60 days 01; 90 days 04

Description: Charged off acct; acct closed by credit guarantor

****

Those are my reports. Now, here's my question: WHEN THE HECK DOES MY SOL EXPIRE?

I have seen so many conflicting SOL theories that my poor red head is spinning like a top! Holy cow! Linda Blair would be scairt of ME. I am possessed by credit demons! My eyes are on fire and my bowels are churning! (Sorry for the excess information, but I *have* exaggerated a bit; it's just a little bit of undigested pudding!)

mahalo for your kokua*,

Red

* THANK YOU SO MUCH FOR YOUR HELLLLLLLLLLLP.

[red]

Yesterday I called the local Office of Consumer Affairs and asked about SOL. First I asked the guy what the statute of limitations for open-ended debt is, in this state. Big silence. "You know, CREDIT CARD DEBT," I said.

"There ISN'T a statute of limitations on ANY type of debt," he told me.

I took a deep breath. "Um, I think according to the Fair Credit Reporting Act there is a statute, but it depends on the state. All the stuff I've seen online indicates that it's six years in Hawaii, but I'm trying to find out where I can read the law itself, to figure out when it starts in my own particular situation."

"Well, I'm sorry, I can't help you, and I don't know who can," he said, not sounding very sorry at all. "Maybe an attorney."

Click.

Arrrrgghhh!

I still don't know what to think about SOL, and it's making me crazy, because I need to understand my own SOL before I start sending letters to CBs or CAs or OCs or anydurned combination of letters. Please, can somebody help? I feel like a horrible pest, but I don't know what else to do.

[cybercrusader]

<blockquote>Originally posted by Swede

Furthermore, they can still attempt to collect if the SOL has passed and they can sue you, because it is up to the debtor to bring up the SOL defense and many of them count on you not knowing.

</blockquote>

Just a note on this SOL issue:

If a CA files suit against you AND you have requested validation but never got it, AND the CA states that the debt is within SOL in the complaint, isn't it up to the CA to proove this?

I am mentioning this because this is what happend to me. I have filed an objection (actually my attorney) stating that since CA hasn't provided any evidence to even substantiate the debt, how in the world do we even know if it's time barred or not?

I am counting on them not having the proof, thereby dismissing the complaint entirely. I am no legal expert by any stretch of the imagination, but isn't this another way for validation to shift the SOL issue onto the plaintiff?

[cookiemnster]

<blockquote>Originally posted by red

I took a deep breath. "Um, I think according to the Fair Credit Reporting Act there is a statute, but it depends on the state. All the stuff I've seen online indicates that it's six years in Hawaii, but I'm trying to find out where I can read the law itself, to figure out when it starts in my own particular situation."

</blockquote>

The FCRA isn't what determinse the SOL, it's state statutes. The person you talked to was an idiot, because all states have SOL's on ALL KINDS of debt. Duh.

Having said that, you know where you'll find the definitive answers to your questions?

In the state statutes of the state you're sued in.

SOL is a very confusing issue. But it's basically the last payment made to the OC. Generally payments made through Genus or other CCCS-type companies won't extend the SOL.

http://community-2.webtv.net/Y-chat/WhyChatsCredit/ should give you some more info, there are links to 40 states statutes re: SOL on this website. Hopefully HI will be one of them.

From the author of that website, posted on another board

Some States start the "legal" SOL, (the time during which a lawsuit can be filed) with the last payment or charge to an account (THE ORIGINAL CREDITOR ONLY), so if you were paying on a past due account, never caught up, were paying late charges, and perhaps still even charging additional purchases,it is POSSIBLE for the "legal" SOL to be months after the "reporting" SOL.

and from yet another post on the same board (and this should set your mind at ease:

The SOL cannot be reset by payment to a 3rd party collection agency OR payments through CCCS. It can only be reset if a NEW SIGNED agreement or contract has been made, with BOTH the debtor and the creditor's signed agreement.

By the way - this guy, Why Chat - is probably the smartest person regarding SOL info that you will ever encounter. He is extremely well respected in this little niche on the 'net (credit repair, etc.)

HTH some

[calawyer]

The Statute of Limitations is not really as confusing as it may seem. It is easy to find out what your state statute provides by clicking the above link. Then, the only remaining question is when it begins to "run" (ie. when it "starts"). The answer to that question will depend on your state law, and perhaps the terms of the written contract (if you have one) upon which the debt is based. For example, the statute might say it begins to run upon breach of the contract. Then, you must look at the contract to find out when you have breached or defaulted.

The problem is that people want some sort of universal rule and there simply isn't one. But, unless you are suing someone, you don't usually need to calculate the date with any great certainty. If you are in a four year state and you are four years plus a few months past the SOL, tell the creditor you believe the debt is time-barred and let them prove otherwise.

[Edit by calawyer on Sunday, May 11, 2003 @ 02:40 PM]

[ADSOFT]

Calawyer

I got a question for you, after the SOL, does the original creditor have to clear out the account and extend you service.

i.e., if you owe the local phone company for 4 yrs and they can't get and $$. Do they have to give you service when you apply after the 4 yrs.

[cookiemnster]

<blockquote>Originally posted by ADSOFT

Calawyer

I got a question for you, after the SOL, does the original creditor have to clear out the account and extend you service.

i.e., if you owe the local phone company for 4 yrs and they can't get and $$. Do they have to give you service when you apply after the 4 yrs.

</blockquote>

ADSOFT -

please pose your questions once in one place - it's annoying to see the same question over and over in different forums. Most of us read all the forums on this board.

Thanks.

~Cookie (not mad, just annoyed, okay?)

[ADSOFT]

Cookiemonster,

I was trying to get a response on this thread, and I couldn't get one so I addressed it to the general board.

It's more annoying when you want answer and you can't get one.

Sometimes people ignore your question so I think its fair to start a new thread, there is no way to force people to respond, and sometimes these issues will be good for the general and new readers.

So I'm sorry, I requested something from somebody and didn't get a response: That really pissed me off. So by starting a new thread maybe somebody on the board at the time can give you an answer.

[Edit by ADSOFT on Sunday, May 11, 2003 @ 04:05 PM]

[Edit by ADSOFT on Sunday, May 11, 2003 @ 04:07 PM]

[cookiemnster]

<blockquote>Originally posted by ADSOFT

Cookiemonster,

I was trying to get a response on this thread, and I couldn't get one so I addressed it to the general board.

It's more annoying when you want answer and you can't get one.

Sometimes people ignore your question so I think its fair to start a new thread, there is no way to force people to respond, and sometimes these issues will be good for the general and new readers.

So I'm sorry, I requested something from somebody and didn't get a response: That really pissed me off. So by starting a new thread maybe somebody on the board at the time can give you an answer.

</blockquote>

Perhaps you should give it some time before you post it in three or four places trying to get an answer.

a) it's rude to hijack someone else's thread

it's the weekend, more people post during the week

c) it's Mother's Day, fewer people than normal are posting today than a normal Sunday

d) if you don't get an answer within 24 hours, feel free to bump a post but don't post it in every forum

e) patience, grasshopper - the posters on this forum will be more than happy to answer your questions but we're doing it for free so it's even more rude to be pushy about it. We're not here for your convenience, yanno

~Cookie

[IronMan]

If you wanted real-time answers you should consider using Instant Messaging or a Chat-room instead. This type of board will usually yield results within 24 hours. Until then, you'd have to move on to next issue(s) or research another issue.

Cheers!

[calawyer]

Adsoft: You will drive yourself crazy if you think I will respond instantly to a post on this board. If I understand your question correctly, the answer is no.

[Swede]

<blockquote>Originally posted by ADSOFT

It's more annoying when you want answer and you can't get one.

Sometimes people ignore your question so I think its fair to start a new thread, there is no way to force people to respond, and sometimes these issues will be good for the general and new readers.

So I'm sorry, I requested something from somebody and didn't get a response: That really pissed me off. So by starting a new thread maybe somebody on the board at the time can give you an answer.

</blockquote>

People need to understand that this board is a privilege not your right and that a lot of very knowledgeable people come here and put in the personal time and effort in helping others. This should be respected and appreciated and people have NO RIGHT getting pissed off if they don't feel they're getting an answer to a question.

The best thing to do when you feel nobody is replying is to "bump" the thread by putting the word "bump" or something else in the same thread, moving it to the top. That is usually the format on the boards and this causes minimum confusion and allows the same issues to stay in one thread- PEOPLE WILL NOT GO SEARCHING for all the pertinent information all over the board.

<blockquote>Originally posted by calawyer

Adsoft: You will drive yourself crazy if you think I will respond instantly to a post on this board. If I understand your question correctly, the answer is no.

</blockquote>

As for Calawyer- most of the members here knows that he's a man of few words and sometimes doesn't check the board for a few days- however when he does speak- his posts are GOLDEN.....

[calawyer]

Thanks, ye of the ever-changing picture.