Jump to content

Out of SOL and suit with a CA? (just a Question)


Recommended Posts

I know under the FDCPA it is against the law to say that they will sue a debtor when its out of the SOL, correct? But then why has the best advice if they do get sued on an out of SOL debt to bring up the SOL?

Is it a violation to sue for a debt out of SOL? Or its okay as long as the phrase is not in the letter? Can a person even get case started if a debt is out of the SOL?

I have heard people say on this site that if a suit is filled for a debt out of the SOL, just bring it up and it'll be dropped.

I was thinking about this earlier today and I am racking my brain about it. Can anyone enlighten me???

This hasn't happened to me, just a question on if it happened.

Link to comment
Share on other sites

I know under the FDCPA it is against the law to say that they will sue a debtor when its out of the SOL, correct? But then why has the best advice if they do get sued on an out of SOL debt to bring up the SOL?

Is it a violation to sue for a debt out of SOL? Or its okay as long as the phrase is not in the letter? Can a person even get case started if a debt is out of the SOL?

I have heard people say on this site that if a suit is filled for a debt out of the SOL, just bring it up and it'll be dropped.

I was thinking about this earlier today and I am racking my brain about it. Can anyone enlighten me???

This hasn't happened to me, just a question on if it happened.

Well this has just happened to me, so if you get an answer please let me know. I live in KS, work in MO, and summons sent to my mothers house in MO where I haven't lived for 17 years. I didn't get the summons, didn't go to court and and now have a judgement against me and my wages are going to be garnished. The last payment on the credit card account in question was in 1996, so the SOL has expired in MO and KS. I'm still looking for solutions.

Thanks, Rich

Link to comment
Share on other sites

If a CA threatens to sue on a debt that they know (or should know) is out of the SOL, can be sued for misrepresenting the legal status of the debt FDCPA 807(2)(a).

If you were to be sued on a SOL barred debt, your answer to the compleint would be it is barred by the SOL. Also, you could file a counter-claim against the CA.

Rich,

If the CA filed suit against you and the debt was SOL barred, you'll need to file a Motion to Vacate the Judgment based on that fact. Basically you'll reopen the case, explaining to the judge the CA was barred from suing you and the judgment needs to be reversed. In the alternative you can also contact the CA and threaten to file suit against them for violating FDCPA 807 (2)(a) if they don't correct this "mistake" themselves.

Link to comment
Share on other sites

In both California and Wisconsin it is illegal for an OC or CA to bring suit (or even attempt collection) on a time-barred debt. It may be illegal in other states as well. Does anyone know if a 50-state search has been done on this issue? If not, I'll have to put it on my to-do list.

In many states it is not illegal for an OC or CA to attempt to collect or bring suit on a time-barred debt. The defense that the debt is past the SOL should be a rock-solid defense if suit is brought and chances are you would win in court if such a suit was brought. Unfortunately, however, there are a few judges out there who don't follow the letter of the law.

Link to comment
Share on other sites

Also, Rich, if your credit report at the time they served the papers contained your current address and they STILL served the summons to a place you had not lived at or a previous address, you can have the judgment overturned based upon defective service of summons. You could also have them sanctioned for perjury for deceiving the court. When they file the summons they have to certify that they have the most current address available. If your CR showed a more current one, they lied.

Link to comment
Share on other sites

leadhead, Methuss, and breathing_easier,

Thanks so much for your help. I am absolutely blown away by the apparent lack of knowledge, and unavailability of the information on this subject in my location. Each attorney I've spoken with, I have had to explain my limited knowledge of the SOLs in KS, and MO. They honestly don't seem to know! They mostly handle BKs and if I'm not going to do that, they can't help. This understandably has me nervous, because it looks like I'm going to have to tell someone WHAT I need done, and they are going to have to figure out what paperwork to file. GEEEEZZZ.

Would any of you know where I can find any written guidelines, defining written contracts, and open accounts, for the state of MO? I'm convinced credit card debt is an open account, but I understand some states consider this a written contract. And since my opinion really doesn't amount to much, I would like to able to see/use it in writing.

Again, thanks, you guys have given me considerable hope.

Rich

Link to comment
Share on other sites

Have you checked out the "Statute of Limitations" link at the top of this page? You'll find it useful.

You can go to www.naca.com to attempt to find an attorney in your area who specializes in the FDCPA and FCRA. There aren't a ton of them. I referred a friend to an attorney in this area who is reportedly one of the leading consumer rights lawyers in the state. However, because she wanted to simply ask questions and be charged at his hourly rate he wouldn't agree. I think they're looking for cases that will bring in some $$. It's not a criticism, just an observation. Your State Bar's website might also have a list of attorneys in your area who are consumer rights specialists.

Link to comment
Share on other sites

Have you checked out the "Statute of Limitations" link at the top of this page? You'll find it useful.

You can go to www.naca.com to attempt to find an attorney in your area who specializes in the FDCPA and FCRA. There aren't a ton of them. I referred a friend to an attorney in this area who is reportedly one of the leading consumer rights lawyers in the state. However, because she wanted to simply ask questions and be charged at his hourly rate he wouldn't agree. I think they're looking for cases that will bring in some $$. It's not a criticism, just an observation. Your State Bar's website might also have a list of attorneys in your area who are consumer rights specialists.

Yes, I checked the SOL link. For MO there isn't any info that relates to state statutes that are written that I can use. I called the Attorney Generals office in MO, and they referred me to the "State Division of Finance". Left a message yesterday and today is a holiday, so hopefully I will make progress tomorrow.

About an hour ago I spoke with attorney #23 who actually knew more than I did about this stuff. He told me pretty much the same kinda things you all were saying in earlier posts. I told him I would go get a copy of the case file and meet with him late tomorrow afternoon. He charges $175/hour with a $500 retainer. Ironically enough probably about the same amount I will be garnished each pay period. It's almost funny...... ALMOST.

He also said he'd perhaps be willing to work on a contingency basis, if things are as I say and he's had a chance to look at my file. So my guess is he thinks he can get some money out of this also.

Link to comment
Share on other sites

Well, I met with an attorney on Friday, and after looking over the case file he thinks it's a pretty good case. Actually, I think he thinks it a great case because I could tell he was trying to temper his enthusiasm, because anything could go wrong.

This collection agency also apparently filed suit against me in KS using my correct KS address about a year ago. (Still SOL at the time) And my current address is on my credit report, because I have credit cards in my name at my KS address. It's all very strange to me, and seems very stupid on their part. This makes me a little uncomfortable.

While I really can't afford to part with attorneys fees, he seems like he knows what he's doing and has some experience in this area and does belong to www.naca.com. So I'm hoping he will do a much better job than I would have. Also I'm pretty sure he thinks there some money on the other end.

Anyway, I will post updates, so hopefully someone else can benefit from this experience.

Link to comment
Share on other sites

The Federal Truth in Lending Act specifically defines credit cards as open-ended accounts and NOT written contracts. The FDIC definition of a written contract is clearly NOT the same as an open account.

Some states will define non-written contracts as 'contracts not in writing', so if the state statues don't say 'open account' , look for 'contract not in writing' instead.

Link to comment
Share on other sites

The Federal Truth in Lending Act specifically defines credit cards as open-ended accounts and NOT written contracts. The FDIC definition of a written contract is clearly NOT the same as an open account.

Some states will define non-written contracts as 'contracts not in writing', so if the state statues don't say 'open account' , look for 'contract not in writing' instead.

Thanks, this is very useful information. Everyone I speak with keeps telling me credit cards are open accounts, but until now I didn't know where to get it in writing. Somehow, I get the feeling I will need to prove this......... or it could just be my paranoia.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.