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I have been looking through this site for a couple of days now and cant seem to find anything that matches what I have, so I thought I might ask to see if anyone has any insight as to what I can do.

The situation is this;

I received a voice mail on my business cell phone last week from a creditor telling me to call him. Monday of this week I received a ceritified letter from a lawyer stating that he has been retained by the credit union to which I owe money. This debt is for a credit card from '96 that I defaulted on in '97. The envelope had a C/O name also listed below my name. Question number one is can they send this type of information with a C/O if the person is not my spouse or in any relation involved with the debt? In my mind legally if their name is on the envelope that means legally they can open it to see that I owe these people money.

Next, as far as SOL on a credit card/open account debt in IL, does anyone know if it is 5 or 6 years? Everything I can find goes back and forth on the issue. As far as a last active date, I dont see one anywhere on any of the three major CRA's, only a date opened. All three report charge offs and Equifax reports the account as OPEN. Now, I dont have good records(none at all) involving this account. Thoughts?

The letter states that I have 30 days to dispute the debt and so forth but the lawyer does NOT have to wait the 30 days to begin litigation. I was thinking that I could wait to see if he actually sends a summons and then request validation of debt to post-pone his actions. The letter contains all the minor details as far as the laws require so I am not looking for a way around that(other than the outside name on envelope).

Please give any feedback you might have. Thank all of you for your time and dedication to this site as it has been most useful to me and from what I have read many others too.

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First of all, the SOL in Illinois is 6 years. Contact the OC and find out the date of last activity. It appears the SOL expires this year.

Second, the CA cannot communicate this debt to anyone other than you or your representatives. This includes delivering notification in the manner of placing another's name on the envelope in order to allow the communication to be viewed by anyone other than yourself.

§ 805. Communication in connection with debt collection [15 USC 1692c]

(B) COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

Third, if you dispute the debt and seek validation the CA must cease all collection activity until such time the debt is validated.

§ 809. Validation of debts [15 USC 1692g]

(B) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

What they're telling you is you have 30 days to respond, they can file litigation durring that 30 day period (ie: tomorrow if they want). They cannot, however, file litigation durring the validation process.

This is what I would do. Contact the OC and get the DOLA and find out is the SOL has expired. If the SOL has expired, you're protected. They can still take you to court, and short of the judge being intoxicated, judgment cannot go against you.

Write your dispute for validation of the debt to the attorney.

Call the Illinois Attorney General and file a formal complaint against the attorney for violation of the FDCPA. Notify the AG that you will immediately forward hard copies of the envelope, original letter, and any other documentation from the attorney including your letter of dispute.

Be prepared for retaliation from the attorney. If a judgment is made against you, you have the right to petition for a payment plan. If it gets to this stage, I would file a countersuit against the attorney for violation of the FDCPA.

You have nothing to lose at this point, you might as well come out swinging. Otherwise, you're a sitting duck and will be sapped for everything.

Good luck to you.

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Tiny disagreement from my end here....

<blockquote>Originally posted by DocDon

What they're telling you is you have 30 days to respond, they can file litigation durring that 30 day period (ie: tomorrow if they want). They cannot, however, file litigation durring the validation process.

</blockquote>

A lawsuit can still be filed within the initial 30 days where the debtor has requested validation, it must however be stayed until validation has been provided.

Mezines Opinion Letter

March 31, 2000

Basil J. Mezines, Esq.

Stein, Mitchell & Mezines, L.L.P.

1100 Connecticut Avenue, N.W.

Washington, D.C. 20036

Dear Mr. Mezines:

This is in response to the American Collectors Association's ("ACA's") request for two Commission advisory opinions ("Request") regarding the Fair Debt Collection Practices Act ("FDCPA"), which the association submitted pursuant to Sections 1.1 - 1.4 of the Commission's Rules of Practice, 16 C.F.R. §§ 1.1 - 1.4. The two issues will be addressed in the order in which they were presented.

FIRST ISSUE:

Does Section 809(B) of the FDCPA permit a collection agency to either demand payment or take legal action during the pendency of the thirty (30) day period for disputing a debt in situations where a debtor has not notified the collection agency that the debt is disputed?

"[The] starting point in every case involving construction of a statute is the language itself." Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., concurring)). The language of Section 809(B) provides that, "f the consumer notifies the debt collector in writing within the thirty-day period" that the debt is disputed, the debt collector must cease collection of the debt until verification of the debt is obtained and mailed to the consumer.(1) Where Congress intended that debt collectors cease their collection efforts during the thirty-day dispute period, it so specified: if, and only if, a consumer sends the debt collector a notice in writing. Congress did not specify that collectors must cease collection efforts during the dispute period even if consumers send nothing in writing.

The Commission has voiced this opinion in recent annual reports to Congress mandated by the FDCPA. As the Commission stated in the 1999 report, for example, "Nothing within the language of the statute indicates that Congress intended an absolute bar to any appropriate collection activity or legal action within the thirty-day period where the consumer has not disputed the debt." Letter from Chairman Robert Pitofsky to the Honorable Albert Gore, Jr. regarding Twenty-First Annual Report to Congress Pursuant to Section 815(a) of the Fair Debt Collection Practices Act, at 10 (Mar. 19, 1999) ("1999 Annual Report"). Because there appears to be some confusion regarding whether the thirty-day period is a dispute period or a grace period, the Commission has recommended in recent annual reports that Congress clarify the FDCPA by adding a provision expressly permitting appropriate collection activity within the thirty-day period, if the debt collector has not received a letter from the consumer disputing the debt. The Commission emphasized that the clarification should include a caveat that the collection activity should not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt specified. 1999 Annual Report at 10-11.(2)

Federal circuit courts that have addressed this issue recently have arrived at the same conclusion. In a 1997 opinion, the Seventh Circuit stated that "[t]he debt collector is perfectly free to sue within the thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor." Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir. 1997) (Posner, J.). In the most recent federal appellate court pronouncement on the subject, the Sixth Circuit stated, "A debt collector does not have to stop its collection efforts [during the thirty-day period] to comply with the Act. Instead, it must ensure that its efforts do not threaten a consumer's right to dispute the validity of his debt." Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. 1999).

The Commission continues to believe that the thirty-day time frame set forth in Section 809 is a dispute period within which the consumer may insist that the collector verify the debt, and not a grace period within which collection efforts are prohibited. In response to the ACA's question, therefore, the Commission opines that Section 809(B) does permit a collection agency to either demand payment or take legal action during the thirty-day period for disputing a debt when a consumer from whom the collection agency is attempting to collect a debt has not notified the collection agency that the debt is disputed. The collection agency must ensure, however, that its collection activity does not overshadow and is not inconsistent with the disclosure of the consumer's right to dispute the debt specified by Section 809(a).

SECOND ISSUE:

Where an attorney debt collector institutes legal proceedings against a debtor but has no prior communications with the debtor, are the requirements for the validation of debts set forth in Section 809 of the FDCPA supreme to state law or state court rules that otherwise prohibit the inclusion of the validation notice on court documents?

In responding to this issue, the Commission notes first that Section 809(a) of the FDCPA, 15 U.S.C. § 1692g(a), provides:

(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

Section 803(2) of the FDCPA, 15 U.S.C. § 1692a(2), defines the term "communication" as "the conveying of information regarding a debt directly or indirectly to any person through any medium." In its Staff Commentary, Commission staff stated that the term "communication" "does not include formal legal action (e.g., filing of a lawsuit or other petition/pleadings with a court; service of a complaint or other legal papers in connection with a lawsuit, or activities directly related to such service)." 53 Fed. Reg. at 50101, comment 803(2)-2. Similarly, in the introductory portion of the Staff Commentary, Commission staff opined that "[a]ttorneys or law firms that engage in traditional debt collection activities (sending dunning letters, making collection calls to consumers) are covered by the FDCPA, but those whose practice is limited to legal activities are not covered."(3) Id. at 50,100.

Seven years after the Staff Commentary was issued, the United States Supreme Court held that the FDCPA's definition of "debt collector," Section 803(6), 15 U.S.C. § 1692a(6), "applies to attorneys who 'regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation." Heintz v. Jenkins, 514 U.S. 291, 299 (1995). In arriving at this conclusion, the Court explicitly considered and rejected Commission staff's introductory remark regarding the coverage of litigation attorneys. Id. at 298. In light of Heintz, the Commission concludes that, if an attorney debt collector serves on a consumer a court document "conveying [] information regarding a debt," that court document is a "communication" for purposes of the FDCPA.(4)

If an attorney debt collector has had no prior communications with a consumer before serving a summons or other court document on the consumer, that document would constitute the "initial communication" with the consumer if it conveys information regarding a debt. The attorney would therefore have to include the written notice mandated by Section 809(a) (often referred to as the "validation notice") in the court document itself or send it to the consumer "within five days after the initial communication."

According to the ACA's Request, some "state laws or state court rules [] prohibit the inclusion of additional language such as the validation notice on documents filed with courts." Request at 9. The association asks whether the requirements of Section 809(a) are "supreme to," and thus preempt, these state laws or state court rules. Id. Preemption cases generally proceed from "the starting presumption that Congress does not intend to supplant state laws." New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995).(5) According to the Court in English v. General Electric Co., 496 U.S. 72 (1990):

tate law is pre-empted under the Supremacy Clause, U.S. Const. Art. VI, cl. 2, in three circumstances. First, Congress can define explicitly the extent to which its enactments pre-empt state law. Pre-emption fundamentally is a question of congressional intent, and when Congress has made its intent known through explicit statutory language, the courts' task is an easy one.

Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a "scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," or where an Act of Congress "touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." . . . .

Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements, or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."

Id. at 78-79 (omission in internal quotation in original) (citations omitted).

The preemption provision of the FDCPA, Section 816, 15 U.S.C. § 1692n, provides:

This title does not annul, alter, or affect, or exempt any person subject to the provisions of this title from complying with the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of this title, and then only to the extent of the inconsistency. For purposes of this section, a State law is not inconsistent with this title if the protection such law affords any consumer is greater than the protection provided by this title.

The Commission does not believe that this section expressly preempts state laws and court rules that prohibit attorney debt collectors from including validation notices in court documents. The quoted provision makes express that Congress did not intend to preempt the field, but allowed only for conflict preemption. However, there is no conflict preemption here.

First, there is no conflict preemption based on impossibility of compliance because it is possible for attorney debt collectors to comply with both the federal provision and the state provisions.(6) Instead of including such notices in court documents, attorney debt collectors in jurisdictions that prohibit validation notices in court documents may deliver the notices to consumers via some other medium -- either before serving the court document on the consumer or, if the court document is truly the first communication with the consumer, within five days of serving the court document.(7)

Second, there is no conflict preemption based on state law standing as an obstacle to the full accomplishment and execution of Congressional purposes and objectives. As Congress declared in Section 802(e) of the FDCPA, 15 U.S.C. § 1692(e), the purpose of the panoply of protections under the federal debt collection statute is:

to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

The state provisions about which you inquire do not prevent consumers from receiving the full panoply of protections from abusive debt collection practices afforded by the FDCPA. The only FDCPA provision that could be affected by these state laws and court rules is Section 809(a). As noted above, an attorney debt collector who is prohibited from including the validation notice in court documents may deliver the notice to consumers before serving the consumer with the court document or, if the court document is the first communication with the consumer, within five days after serving the court document. Thus, even in a jurisdiction that prohibits validation notices in court documents, a consumer will receive the validation notice and learn, for example, that the debt collector must provide the consumer with written verification of the debt if the consumer disputes the debt within thirty days. State legislation that prohibits validation notices in court documents also does not stand as an obstacle to the promotion of "consistent State action to protect consumers against debt collection abuses." Consumers will receive their validation notices in jurisdictions that prohibit validation notices in court documents as well as in jurisdictions that permit the practice.

After reviewing state laws and court rules that prohibit validation notices in court documents under a preemption analysis, the Commission concludes that such state legislation is not preempted by the FDCPA.

By direction of the Commission.

Donald S. Clark

Secretary

[Edit by Swede on Thursday, May 1, 2003 @ 07:29 AM]

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Thanks for the in-depth answers so far. Next question would be this. If I defaulted lets say in Feb after I lost my job, then was forced to make a few "token payments" over the course of the next few months, when does the SOL start? Would it be the first time I went into default and never caught up or brought the account to current or would it be the date of the last attempt(forced) made?

Also, obviously I am looking for the shortest amount of time on the SOL standpoint, and on http://www.nationallist.com/laws/il_laws.shtml reads that it has been updated for 2003 and says SOL for Open accounts is 5 years. Sorry for that poor sentence. If anyone has the code from IL that states that it is in fact 6 years could you please send me the link. Thanks

I hope to hear from more of you for the points of view and thanks again for the ones that have given so far.

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SOL on open-ended accounts (contracts not in writing) is 5 years per the IL statutes:

ILLINOIS SOL & CODE FOR CREDIT CARD EXCLUSION AS WRITTEN CONTRACT

(735 ILCS 5/13-205)

Sec. 13-205. Five year limitation.

Except as provided in Section

2-725 of the "Uniform Commercial Code", approved July 31, 1961, as amended, and Section 11-13 of "The Illinois Public Aid Code", approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued. (Source: P.A. 82-280.)

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So what you just posted is 5 years SOL on credit card debt? And since the credit union that supplied the card is also an Illinois "resident" then I am fine at this point? I know you(Ladynred)said in another post from some time ago that you have IL experience so anything you might be able to tell me would be great! Thanks

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