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should I sue or shouldn't I?


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I have been thinking this over for a while now, and I really need some expert advice on this.

I had a sears charge card many many moons ago. I charged it to the max and never paid for it. Actually that's not true. I made payments for about a year. The problem is, my first payment was late and so every payment thereafter was considered late because when I made a payment in january it was counting for december (you get the idea). Anyway, I finally got fed up with paying late fees and over the limit fees every single month so I quit paying on it. The balance at the time I made the last payment was about 1050 dollars. well, two years later the balance was at 2500 dollars.

Anyway, I have no records of the account, but I am pretty sure that I made the last payment in mid 1995. Well, about six months ago I started trying to repair my credit and I disputed the account twice. It came back verified twice. I sent DV letters to Sears and to the collection agency they had sent me to. No response. I sent the letters again. Again, no response.

I finally got a lawyer here in town to fight with the CA and he managed to get the account removed (he wasn't a credit attorney so I bascially had to tell him what to do). The collection agency was not able to obtain any records of the account from sears. It even says so in the letter I got from them stating that they were going to have my TL removed and my records purged from their system.

Sears either does not have any of the records, or does not want to give them to me, but they removed the tradeline also. Sears was bought by citi so it is possible that my account records were lost in the shuffle.

Ok, so now that you have the background, here is what I have. I have copies of each of my credit reports showing that the account had been reported since may of 2001. I can prove that it was listed on my report as late as mid 2005. The real question is whether they have records of the account or not.

If I claim that I never had the account, and they don't have any records, then this seems to be a lawsuit worth a decent amount of cash.

If they do have the records, then I will be able to prove that the account was not charged off after 180 days, that interest was still being charged to the account after the legal time limit for charge off, that the account had been reaged in order to sell it to the collection agency, and possibly that if the interest and late fees applied to the account after the 180 days was not legal, then they still have reported inaccurate information month after month for several years. I also have the paperwork to prove that they verified incorrect information twice.

I can go after the CA for several years worth of reporting inaccurate and unvalidated information as well.

So here are my questions... from what I have told you does it seem as though this is a lawsuit worth pursuing? If I have left out any pertinent info tell me and I will try to give it to you. Also, how much does a lawsuit cost? I mean as far as filing fees. I am in Texas, also, in case you need that info.

Any advice would be greatly appreciated.

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I'm no expert, so take the following with a grain of salt.

There is a statute of limitations for suing under FDCPA, which is either 1 or 2 years (I'm not sure), so you can't sue for all the violations since 2002 (when the reporting period should have expired if you really stopped payments back in 1995).

I wouldn't recommend denying the existance of the account. The burden of proof is on them to show that it was a valid debt, and by now they can not sue you for any charged-off amount.

Failing to respond to a DV is also a violation of Tx collections law and by default of the Tx Deceptive Trade Practices Act, and there are steep fines per violation, however, as I understand it, the money goes to the state, not to you.

Maybe you could use it as leverage and get them to settle for some dagames and statutory penalties. Read the Sticky on laws by state for more information.

Good luck whatever you decide.

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