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Credit Report v. Credit History?


dolphingrl
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I recently received a letter from a CA regarding a voluntary repossession I had tried to settle in '96. I explained that the SOL had long since passed, and now 7 years had passed since the DoLA on this account. Therefore, the information needed to be removed from my credit report. The customer service (ha!) rep stated "that the information would not be on my CR, but would be reported in my credit history for at least another 3 years". WHAT??? I was under the impression that my CR is my credit history. Is there, in fact, a difference?

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I recently received a letter from a CA regarding a voluntary repossession I had tried to settle in '96. I explained that the SOL had long since passed, and now 7 years had passed since the DoLA on this account. Therefore, the information needed to be removed from my credit report. The customer service (ha!) rep stated "that the information would not be on my CR, but would be reported in my credit history for at least another 3 years". WHAT??? I was under the impression that my CR is my credit history. Is there, in fact, a difference?

The CA is bull-sh*tting you to try and leverage a "pay-for delete." They know it is past SoL and uncollectable. They also know that the reporting for derrogs is 7 years. So they are lying to try and convince you to pay something. Hmmm...I think that's an FDCPA violation under the deceptive practices section...

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DECEPTIVE AND MISLEADING ASPECT

The deceptive and misleading aspect of this practice is the failure of the collector to inform the consumer that if he or she transfers part or all of the balance of the old debt to the new credit card, acknowledges the old debt, or makes payment toward the old debt, that debt is renewed and the consumer may once again be sued (and use other legal remedies employed) to collect that old debt.

Depending on your state of residence, the fact that you spoke to a "customer service" rep and acknowledged the debt may have reset the SOL, meaning it could now be how X number of years from the date of your telephone conversation (which was probably recorded). In order to protect yourself in the event they try to sue you, you need to send a DV letter CMRRR tomorrow.

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There might be a kernel of truth there ... do a search on "full factual" reports or "RMCR" reports. Over $150k mortgage, over $75/yr. job, or over X amount of life insurance, they can pull a different, more detailed report, and one that doesn't have a 7 year cutoff. But I didn't think it had a 10 year cutoff ... didn't think it had a cutoff at all (maybe it goes back to your grade school "permanent record", I don't know).

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Depending on your state of residence, the fact that you spoke to a "customer service" rep and acknowledged the debt may have reset the SOL, meaning it could now be how X number of years from the date of your telephone conversation (which was probably recorded). In order to protect yourself in the event they try to sue you, you need to send a DV letter CMRRR tomorrow.
I haven't seen the case law on this, it doesn't happen in my state. Can acknowledgement revive an SOL debt? Or merely extend the SOL on a debt that was aging toward SOL? And what constitutes "acknowledgement"? Surely if you refuse to pay because it's SOL that wouldn't constitute acknowledgement? I mean, the SOL affirmative defense is "confession and avoidance", so an acknowledgement of some sort is inherent in its use. It would be strange to be able to do something in court pleadings that wouldn't hurt you, but the same thing, if done on the phone to a CA would be a poison. I can't believe courts would make such an interpretation.
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From what I have been told by many is that the only ways to cause a SOL debt to become "enforceable" was if the consumer signed an aggreement, must be personally signed by consumer and authorized agent, accepted the CC offer to reinstate, which is becoming the new thing, and lastly, returning to the State the debt was originally made, if the consumer had moved outside of the State. Remember, the State with the longer SOL takes precedence. As flacorps says, no court would make that interpretation that IF a consumer acknowledges the debt, it restarts the clock. It does not fly.

As one person explained, The SOL is tolled for the same reason when a person returns to a State regarding a criminal complaint.

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Fortunately or unfortunately, it depends on the state. It can pose some problems. An alleged debt of mine is tolled in FL but beyond SOL in OH, so I'm going to wait 8 more months just to be safe.

SOL EXCEPTIONS

AR

Partial payment or written acknowledgement of default stops SOL.

CA

SOL is stopped if debtor makes a payment on the account AFTER the expiration of the applicable limitations period.

DC

An oral promise to pay re-starts the three years.

FL

The SOL is stopped for any period during which the debtor is absent from the state and each time a voluntary payment is made on a debt arising from a written instrument.

HI

SOL is stopped during the time of a person's absence from the state or during the time that an action is stayed by injunction of any court.

ID

A written acknowledgement or new promise signed by the debtor is sufficient evidence to cause the relevant statute of limitations to begin running anew. Any payment of principal or interest is equivalent to a new promise in writing to pay the residue of the debt.

The time limitation for the commencement of any action is tolled during the time of a person's absence from the state or during the time that an action is stayed by injunction or by statutory prohibition action.

IL

Actions based on a written contract must be filed within 10 years, but if a payment or new written promise to pay is in made during the 10 year period, then the action may be commenced within 10 years after the date of the payment or promise to pay. A person's absence from the state or during the time that an action is stayed by injunction, court order or by statutory prohibition tolls the time limit.

IN

Written acknowledgement or new promise signed by the debtor, or any voluntary payment on a debt, is sufficient evidence to cause the relevant statute of limitations to begin running anew.

IA

Open account: 5 years from last charge, payment, or admission of debt in writing.

MD

The 3 year statute of limitations begins again if creditors can document that a debtor has reaffirmed a debt by a good faith basis by a written agreement, orally, or by payment.

MI

Another state's limitation period may apply.

MN

New written acknowledgement or payment stops the SOL for the debt.

MT

A written acknowledgement signed by the debtor or any payment on a debt is sufficient evidence to cause the relevant SOL to begin running anew.

NE

SOL can be interrupted by partial payment or written acknowledgement of debt. The statute starts to run anew from the date of the partial payment or written acknowledgement.

NH

Payment on an account stops SOL.

NM

If the limitations period has expired, an acknowledgment or payment starts the period running again.

NC

Partial payment BEFORE the SOL expires renews the SOL from date of payment.

Payment AFTER SOL expires renews SOL ONLY if, at time of payment, circumstances infer the debtor recognized obligation to pay. Partial payment on open account restarts SOL on purchases made within 3 years of payment date, if acknowledgment can be inferred, starts the statute anew as to the full obligation acknowledged, even if all of the charges were not made within the last three years.

ND

A new written acknowledgement or promise or voluntary payment on a debt revives the SOL for the debt.

SC

A partial payment or acknowledgment in writing tolls the SOL.

UT

A written acknowledgement signed by the debtor revives the SOL.

VA

3 years from the last payment or last charge for goods or services rendered on the account.

WV

If a debtor makes an acknowledgment by a new promise, or voluntarily makes a partial payment on a debt, under circumstances that warrant a clear inference that the debtor recognizes the whole debt, the statute of limitations is revived and begins to run from the

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Which particular section of the State Law are you referring to regarding CA?

Oral and written agreements. However, there is a caveat. The CA must tell you that the debt is SOL and that they have no legal recourse. If the CA fails to do that, it's an FDCPA violation for deceptive practices. So anyone who would do that, would do so voluntarily, knowing that the debt is SOL and that they cannot be sued for judgment (at least theoretically).

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I must apologize, but, you still did not answer my question. I have all sections of California State Law regarding debt collection and court procedures, among others, printed out and cataloged in a 3- Ring Notebook. No where in there can I find reference to what you are saying. Would you mind putting a particular section and number here so I can find it and add to what I have?

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DECEPTIVE AND MISLEADING ASPECT

The deceptive and misleading aspect of this practice is the failure of the collector to inform the consumer that if he or she transfers part or all of the balance of the old debt to the new credit card, acknowledges the old debt, or makes payment toward the old debt, that debt is renewed and the consumer may once again be sued (and use other legal remedies employed) to collect that old debt.

Depending on your state of residence, the fact that you spoke to a "customer service" rep and acknowledged the debt may have reset the SOL, meaning it could now be how X number of years from the date of your telephone conversation (which was probably recorded). In order to protect yourself in the event they try to sue you, you need to send a DV letter CMRRR tomorrow.

If the call was recorded without the consumer's knowledge and the call crossed State lines, it is inadmissable in court because it was illegally obtained in violation of the Federal Telecommunications Act.

To reset the SoL you have to re-affirm the debt in writing. Simply acknowledging it was yours but is time barred, does not reset the clock. That's just silly. If it was that simple for the CA to reset the SoL then they wouldn't have to do it by sneaking around and re-aging through deceit on credit reports.

And making payments no longer is a way for them to reset either. Johnson v. MBNA ruled that making payments or payment arrangements does not mean the consumer is accepting liability for it.

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Methuss, that is why I am asking for a particular section to confirm this. According to all of my sources, I can find no reference to this in California or any other requirement for restarting. All I am aware of is the accepted standard of "must be an agreement in writing by both parties to restart the clock" which is somewhat of a generalized and accepted manner. I have heard that some States have accepted the making of even one payment toward a delinquent account restarting the clock, whether in writing or not, and that it has been argued in Federal Court, but, do not have absolute proof of the decisions. In fact, I just finished going through California's Summary again and still can find no reference, unless I am missing something. In short, if there is a specific section, I want to know so it can be added to our "Sticky" about California.

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Methuss, that is why I am asking for a particular section to confirm this. According to all of my sources, I can find no reference to this in California or any other requirement for restarting. All I am aware of is the accepted standard of "must be an agreement in writing by both parties to restart the clock" which is somewhat of a generalized and accepted manner. I have heard that some States have accepted the making of even one payment toward a delinquent account restarting the clock, whether in writing or not, and that it has been argued in Federal Court, but, do not have absolute proof of the decisions. In fact, I just finished going through California's Summary again and still can find no reference, unless I am missing something. In short, if there is a specific section, I want to know so it can be added to our "Sticky" about California.

Johnson v. MBNA is printed in full in the resource section of this forum.

http://caselaw.lp.findlaw.com/data2/circs/4th/031235p.pdf

Page 7 paragraph 2

"MBNA also points to evidence indicating that, during her conversations with MBNA following Slater's bankruptsy filing, Johnson attempted to set up a reduced payment plan and changed the address on the account to her business address. However a Jury could reasonably conclude that this evidence showed only that Johnson tried to make payment arrangements even though she had no legal obligation to do so. Indeed, Johnson testified that, during her conversations with MBNA, she had consistantly maintined that she was not responsible for the account."

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It was from a site and listed California CCP (Code of Civl Procedures??) Section 335-349.4

Another site listed the same info, but only mentioned tolling and didn't provide specific examples. It did say this though:

"California courts have uniformly held that the statute of limitation is a harsh remedy which will be applied only in the clearest situations. "

"Courts abhor the statute when it denies the plaintiffs their day in court."

Obviously the debtor must make an overt act, would that have to be in writing? I don't know. Frankly, I find the whole SOL thing confusing.

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It was from a site and listed California CCP (Code of Civl Procedures??) Section 335-349.4

Another site listed the same info, but only mentioned tolling and didn't provide specific examples. It did say this though:

"California courts have uniformly held that the statute of limitation is a harsh remedy which will be applied only in the clearest situations. "

"Courts abhor the statute when it denies the plaintiffs their day in court."

As I pointed out before, all debtors, regardless of the state they live in are protected by the FDCPAs deceptive practices section (a CA is wrong if they don't tell you a debt is SOL --their supposed to know) and apparently, at least under California law, the debtor must knowingly and voluntarily agree to toll the SOL. Obviously the debtor must make an overt act, would that have to be in writing? I don't know. Frankly, I find the whole SOL thing confusing.

Well for one thing, California courts are not the best source of information. The Circuit court there has an overturn rate of 9 out of 10 upon appeal. They are the most liberal court system in the country and frequently are being overruled by higher court authorities.

So if you are looking at case-histories out of California, it's best to check higher up for the appeals to see if it was overturned.

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Those statements are in the construction litigation context, which is a whole different ballgame:

http://www.constructiondefects.com/ll_ca_statutes.asp

Debt: Liability and damages are relatively clear-cut. Collectability may

be in question. Creditor needs to make a choice, and delay is not the result of it being hard to determine whether there is really a case at all. Plaintiffs don't get much of a break from the court in these kinds of circumstances.

Construction litigation: Collectability is assured (insurance, bonds, etc.). Liability and damages are questionable. Is there really too much sand in the stucco? Were 3 staples on a 2'x2' section of lath really inadequate? What will it cost to really fix the stucco cracking and spalling? When should problems have been noticed? In cases such as this, delays in bringing cases can be the result of legitimate uncertainty as to whether the plaintiff even had a right to bring a case. Courts give plaintiffs a break in these circumstances.

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