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SOL is not the law


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Okay I KNOW that collectors basically lie..and as a rule I never talk to them via phone.

This morning however I accidently picked up a call from Mann-bracken..(courtesy of NCO) the guy on the other end was polite.. and they are trying to collect/sue (nothing served yet and nothing filed) on a time-barred debt.

The SOL was up on this Sept 12 (last payment was Sept 12, 2003) I live in a three year state.. I confirmed with the AG and our clerk of courts.. it is three years to the day, not three years and thirty days...(which I have read before)

This collector told me the debt was not time barred and that was a huge misconception with consumers.. he said as long as the acount was active (it hasn't been active since 2002 that he has seen debts they have sued on over 10 years old.. and they were definatly going to file suit on this account .. (They have a local office) He said I admited to the debt since i made payments on it (again, not since 9-12-03) so they could prove it was indeed mine and the SOL would be a moot point, that was just hype people read on the internet

He wasn't being rude or snarky at all, he seemed to believe it.. what am I missing here and why do you think this was so disturbing.. could this actually be correct?

Also did I make a mistake by pointing out the debt was time barred.. can that hurt me in anway or make them rush to file?

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Maybe he has sued people on old debts and they just never showed up and/or didn't use the SOL as a defense - so that is why he seemed so confident.

He is trying to collect a debt - his approach may be to act very polite and confident (as opposed to the rude, obnoxious collectors who seem to get the press).

Stick to your guns and don't be intimidated.

P.S. Is there any way you can get your AG's office to put something in writing to you? If so, don't let the other side know until you go to court (if you go to court).

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You say it can not be taken.... how so? They can still sue can't they?

Sure they can sue you. I can sue you simply because I don't like the spelling of your name. Would I win? No way!

They can file suit against you but if it's indeed time barred, what they're doing is sgainst the FDCPA, specifically misrepresenting the legal status of the debt, which you can turnaround and counterclaim against or initiate your own suit in federal.

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Sure they can sue you. I can sue you simply because I don't like the spelling of your name. Would I win? No way!

They can file suit against you but if it's indeed time barred, what they're doing is sgainst the FDCPA, specifically misrepresenting the legal status of the debt, which you can turnaround and counterclaim against or initiate your own suit in federal.

I didnt realize if they did sue I could file a counter claim.. I thought there were only two states that you can do this in (I am in NC)... From what I understand the can sue/call/ mail letters until you die.. but it doesnt mean they can win it.. but the countersuit thing I didnt know

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There is conflicting case law about whether suing on a time-barred debt violates the FDCPA. You could raise it in a counterclaim, assuming it is necessary. But it would be better placed in federal court as a separate matter. Remember, the SOL is a defense you must raise or it is lost to you, which is why collection attorneys don't bother with it.

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There is conflicting case law about whether suing on a time-barred debt violates the FDCPA. You could raise it in a counterclaim, assuming it is necessary. But it would be better placed in federal court as a separate matter. Remember, the SOL is a defense you must raise or it is lost to you, which is why collection attorneys don't bother with it.

RA.. but was the collector correct.. is it a slam dunk if it does go to court.. and if they know its time barred would they try to sue on it anyway?? i guess my question is can I actually lose a case even if a debt is time barred? And if so, how can that happen, I want to be prepared..

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Klewer v. Cavalry Invs., L.L.C., 2002 U.S. Dist. LEXIS 1778 (W.D. Wis. Jan. 30, 2002). Wisconsin’s six-year statute of limitations for contract, Wis. Stat. § 893.43, had run effectively extinguishing the debt according to Wisconsin decisions, not just the judicial remedies available to collect the debt as in most states. Thus, the collection letter misrepresented the legal status of the debt in violation of the FDCPA.

Kimber v. Federal Fin. Corp., 668 F. Supp. 1480 (M.D. Ala. 1987). Filing a time-barred suit when the collector knew of no tolling of the statute of limitations was unconscionable and a deceptive misrepresentation of the legal status of the debt, implying the collector would prevail.

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There is conflicting case law about whether suing on a time-barred debt violates the FDCPA. You could raise it in a counterclaim, assuming it is necessary. But it would be better placed in federal court as a separate matter. Remember, the SOL is a defense you must raise or it is lost to you, which is why collection attorneys don't bother with it.

RA,

I was going off the following:

Threatening to take or taking any action that cannot legally be

taken or is not intended to be taken - 15 U.S.C. Section 1692e(5);

Withers v. Eveland, 988 F. Supp. 942 (E.D. Va. 1997); Morgan v.

Credit Adjustment Board, 999 F.Supp. 803 (E.D. Va. 1998).

Filing time-barred collection litigation - Kimber v. Federal

Financial Corp., 668 F. Supp. 1480 (D. Ala. 1987);

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I appreciate it but chances are I am not looking to sue on this thing, I just dont want to BE sued on a time barred debt.. so I am trying to figure out if it does come to this if I can possibly lose and if so how.. what do I need to prepare for...

also this comes from our state statutes.. does this mean its illegal to sue on a time barred or am I reading this wrong??? Sometimes the langauge gets a little sticky..

§ 58-70-115. Unconscionable means.

No collection agency shall collect or attempt to collect any debt by use of any unconscionable means. Such means include, but are not limited to, the following:

(1) Seeking or obtaining any written statement or acknowledgment in any form containing an affirmation of any debt by a consumer who has been declared bankrupt, an acknowledgment of any debt barred by the statute of limitations, or a waiver of any legal rights of the debtor without disclosing the nature and consequences of such affirmation or waiver and the fact that the consumer is not legally obligated to make such affirmation or waiver

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I just got a call back from the guy who is head of the Credit Card division at the AG's office.. He basically said two things.. he said they are SOL... literally and you were right.. he said it is illegal for them to file suit in a time barred debt.. it violates federal law and one of our state laws buried someplace..., he said filing on a known time barred debt is a good grounds for counter suit. He pointed out that no thinking attorney would do this. He said of course they can but it wouldnt be too smart.

He also confirmed again that the SOL is three years to the DAy of either last payment or last activity... whichever was more recent..

I also believe somewhere in the conversation he used the word vultures a time or two to describe the OC/JDB industry

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Ok, no, it is by no means a 'slam dunk' IF they sue you.

Keep in mind that in most states, if they can bluff you into paying them ANYTHING, you re-set the SOL ! Besides being liars about the strength of the SOL in defeating a lawsuit, they WILL lie to get you to pay -- and screw yourself out of the SOL as a defense.

IF they sue you have the affirmative defense to use in your Answer and in court if it gets that far. Only if you do nothing is it a slam dunk win for them.

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Lady in Red

NO I meant a SLAM DUNK for me

I am not paying them a dime on a case that is out of SOL...

Not when I tried to negotiate with citi (NCO owns it now) when it was 800.00 and now its over 2000.00 I dont' think so.

I know its out of SOL.. I spoke to the AG about it again this morning... I kept reading where it was 3 years and then 30 days (when it was past due) that is not correct according to the AG.. its three years to the date of last activity.. be it a payment or a charge..

I am not a girl who can be talked into much.. thats for sure :) But thats what I meant is it a slam dunk in court for me if I am out of SOL and use that as my defense.. how I can prove it though is another matter..

NCO likes to change my CR and has done so at least twice.. I have the old reports but I am banking on the fact they have to prove their charges.. if that is wrong.. please tell me

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