Need Advice and State of Limitations for Military??

[geministars9]

I have a few questions and mainly just need some advice on the next steps I should take.

Is the Statute of Limitations on credit card debt, determined by the state you currently live in or where the debt originated? I have read a few different things.

I have a debt that I stopped paying on in Jan 2002 and my credit report reflects this. I acquired the debt while living in Texas and stopped paying it while living in Texas. My husband is military so we have lived in Missouri for the past 4 years, however, we claim Texas as our state of residence and have an address in the state of Texas -- we use my husbands parents address.

The SOL for TX is 4 years for open accounts and for MO it is 5 years. Either way, the SOL has run out on this debt, however I am still wondering which would apply to us since we are military?

I received this letter today from the collection agency:

"Dear XXXXXXX,

This company represents the Original creditor named above. Unless full payment is made to our office within 10 days of the date of this letter, we will forward this account to our attorney for suit.

Pursuant to Code of Civil Procedure Section 1033, please take notice that if this account is sued, a judgement may include costs for filing fees, costs for services of process, interest, and attorney fees.

In order to avoid suit, please pay the total balance due within 10 days of the date of this letter. If you wish to resolve this matter without suit, please contact this office at xxx-xxx-xxxx."

The date on the letter is April 5th and the post marked date is April 10th! So it took them 5 days to mail it and 5 days for transit time (they are in CA and I am in MO)...which leaves me with 0 days to pay it since I just got the letter today LOL. I think this is just one of their "scare tactics". I, of course, have no intention of paying this since it is out of the SOL. On top of the $55k I owe in student loans (which I would never even dream of NOT paying) there is just no way I can afford to pay them off. To sum it up, this is just one of those mistakes I made and have learned from.

The Original creditor is Direct Merchants Bank and it is a debt I acquired while in college. The high balance on this card was $1,500 but of course they say I owe them $3,000. I guess if they DO in fact take me to court over this I can state the SOL claim???

My husband and I do not own a single thing. Both of our cars are financed and YEARS away from being paid off, we live in military housing, we don't have any savings...etc. We live paycheck to paycheck. I am not sure what this company thinks they are going to get out of me when we don't own any property whatsoever.

I know in TX they cannot garnish wages, and I know they allow it in Missouri but wouldn't they have to have a court order to be able to do such a thing? In most cases, would you say they just go ahead and take you to court without attempting to garnish wages first?

How exactly are court judgements handled? Is someone from this collection agency going to have to fly all the way here to Missouri for court? I would think that would be a waste of their time considering they gotta know this debt is past the SOL.

I have prepared a C&D letter for them stating the statue of limitations has run out in both TEXAS and MISSOURI. I plan on mailing this tomorrow (via cert. mail) so any advice/comments I can get on this tonight is appreciated. It is a sample letter I got off another site and I tried to change it up a bit but really....there is only so many ways you can tactfully tell a CA to cease and desist. I am sure they read these same letters over and over again.

Thanks so much for the help!

-M

[MadinKS]

Is this their first contact w/you? Because I don't see the "you have 30 days to dispute" notice. Is it on the letter anywhere? If not, you have violation #1 of the FDCPA. It states:

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

(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.

( 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.

© The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.

In addition, if you are a TX resident (not sure of the law on that part) they have a lot of consumer friendly rules as well.

In order to avoid suit, please pay the total balance due within 10 days of the date of this letter. If you wish to resolve this matter without suit, please contact this office at xxx-xxx-xxxx."

This is so illegal if this is the initial communication. I hope it is. Could also be construed as abuse, IMHO.

How exactly are court judgements handled? Is someone from this collection agency going to have to fly all the way here to Missouri for court? I would think that would be a waste of their time considering they gotta know this debt is past the SOL.

They would hire a local attorney to sue for them. They don't give 2 poops about SOL. What they're bankin' on is a no-show from you when the court date arrives. If you don't show and don't answer the summons with the SOL defense, then they automatically win. It's how they make 99.9% of their money.

I have prepared a C&D letter for them stating the statue of limitations has run out in both TEXAS and MISSOURI. I plan on mailing this tomorrow (via cert. mail) so any advice/comments I can get on this tonight is appreciated. It is a sample letter I got off another site and I tried to change it up a bit but really....there is only so many ways you can tactfully tell a CA to cease and desist. I am sure they read these same letters over and over again.

Advice on the C&D would be, look out for a summons. We all know it's SOL, but like I said before, they're hoping for a no-show. Be on the lookout and get the big guns out!

Oh, WELCOME. You've found the right site for help. Please tell your husband that I said "thank you for his service" from a fellow military man.

[geministars9]

Is this their first contact w/you?

No they have sent other letters before this. I think this might be their "final" notice. They also have called my husband at work at least 3 times. I did not know they could actually take me to court until a few weeks ago which is why I ignored their few other letters. I told my husband that if they ever call him at work again that he needs to tell them to never call him at that number, and they SHOULD honor that.

What they're bankin' on is a no-show from you when the court date arrives. If you don't show and don't answer the summons with the SOL defense, then they automatically win.

How would I get served with a summons exactly? Would they come to my work or what? We live on base so would a cop on base do it? How do you answer a summons? Is this something I need help from a lawyer with?

Thanks for your input

[geministars9]

Please tell your husband that I said "thank you for his service" from a fellow military man.

Thank you My debt kinda worries him actually because he is in the military and they frown upon that. I just keep telling him that he shouldn't worry about it because i acquired all this debt before I ever met him and they can't reprimand him for something I did before we were even married!

We are not too far from Kansas ourselves, about an hour from Kansas City.

-M

[MadinKS]

I told my husband that if they ever call him at work again that he needs to tell them to never call him at that number, and they SHOULD honor that.

It needs to be in writing to be more effective.

FDCPA

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

(a) COMMUNICATION WITH THE CONSUMER GENERALLY. Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt --

(3) at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication.

© CEASING COMMUNICATION. If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except --

How would I get served with a summons exactly? Would they come to my work or what? We live on base so would a cop on base do it? How do you answer a summons? Is this something I need help from a lawyer with?

I think we may be getting ahead of the situation. Start by sending a DV letter w/a reference to the fact the SOL is expired. Make sure you send it CMRRR. Maybe even 2nd day air w/delivery confirmation. You definitely want to get your letter there yesterday. If they are bluffing, and you are knowledgeable when it comes to your rights, they may just leave you alone. If it's their final offer before suit, you've got nothing to lose.

As far as the summons, they would probably serve you at your home on base. They will allow the county sheriff on base to deliver the summons. After you send the DV letter, I would go to base legal and see if they can help out. You might as well see if you can use some of the "benefits" of the military. If base legal won't help, contact a local atty. They usually give you a free consultation. Read as much as you can here and talk to an attorney. Oh yeah, take a deep breath and calm down. Just don't panic, the CA's love it when they are dealing w/a panic stricken person. They don't tend to put up a fight and hand over there bank account information to make the bad men go away. That's not how you want to approach this. You need to have a level head and a strong game plan for the situation. Okay?

Read the lawyer section? If not, you really need to be scouring that section. A lot more knowledge on law and court stuff over there. http://www.debt-consolidation-credit-repair-service.com/forums/forumdisplay.php?f=177 Are you guys up in Sedalia? Air Force?

[geministars9]

Thanks!

I might call up base legal and see if they can see me about this debt. I don't think they can offer legal advice though but I will try. I think they are mostly there for Wills and such.

I will definitely look over this site some more. My eyes are burning from reading so much already lol.

I would never get to the point where I just handed over my bank account info. I can only imagine what all they would do.

And yes we live near Sedalia and my husband is Air Force.

What happens if the sherrif cannot find me? Like if he comes when I am at work? I've heard people asking if others were served properly? What is being served properly? Does that mean only *I* can receive the summons? Or can they give it to my husband if he is home? etc.?

[MadinKS]

What happens if the sherrif cannot find me? Like if he comes when I am at work? I've heard people asking if others were served properly? What is being served properly? Does that mean only *I* can receive the summons? Or can they give it to my husband if he is home? etc.?

As far as that goes, you will need to find the statute in MO that cover "service of process". You can start here. http://www.courts.mo.gov/courts/ClerkHandbooksP2RulesOnly.nsf/c0c6ffa99df4993f86256ba50057dcb8/f54a7a01ed6d17e186256ca600521339?OpenDocument

If they don't serve you according to MO law, that gives you a reason to file a motion to vacate. I do believe they can serve the spouse if you're not there too. Don't quote me on that though. There again, maybe you should ask the people that speak lawyerese, because I only speak American Fishermanese. Sorry, I gotta go to bed now, I'm seeing double from staring at this screen. I'll be back at it tomorrow if I can be of more help. Till tomorrow, MadinKS out.

[geministars9]

thanks for all your help:)

I went ahead and sent the C&D letter yesterday CMRRR....now it's a waiting game.......

[OOCally77]

I think that they will call the base and get your number and have you meet them at the front gate to deliver a summons.

So how is Whiteman these days? Left there about 2 yrs ago:)

Aim High

[geministars9]

I think that they will call the base and get your number and have you meet them at the front gate to deliver a summons.

So how is Whiteman these days? Left there about 2 yrs ago:)

Aim High

Whiteman is good... I love it here My husband works in life support for the b2 pilots. So far we have been pretty lucky as far as deployments go. He has only been to iraq once.

IT SNOWED last friday night here lol. I had never seen snow in Missouri IN APRIL before.

And that makes sense about them calling me to the front gate. I hope I get the summons because I am pretty sure I would win the case. I am mainly worried about them garnishing wages.

[OOCally77]

They can't garnish his wages. Your name is on the account not his. But if they threaten to take you to courte he should talk to his First Seargant.

Would be alot better than the first seargant finding out from a third party. They hate being blind sided. Also they can help out alot when they are in the loop. They may also instruct him to pay it, but might not if he tells them the SoL is up on the account.

[geministars9]

They can't garnish his wages. Your name is on the account not his. But if they threaten to take you to courte he should talk to his First Seargant.

Would be alot better than the first seargant finding out from a third party. They hate being blind sided. Also they can help out alot when they are in the loop. They may also instruct him to pay it, but might not if he tells them the SoL is up on the account.

Oh I know. I am not worried about them garnishing his at all. Just mine.

[retmar]

Go to legal and talk to them. Your DH falls under the Soldiers and Sailors Amendment. Do not be afraid of them. Just sit down and explain the whole matter, including the SOL, and ask what is the best avenue to resolve. You do have violations as they are threatening to sue when they have no legal claim or right to do so. When taling to legal, cite Kimber v Federal Financial, as it explains a suit filed on a SOL debt.

Regarding the SOL, the creditor does have the right to use the longer of the two SOL's. They can only toll the SOL if you return to TX and take up a residence. I'm not sure if your using an address there matters, but, ask, to be sure.

To add, my Nephew has been in the AF for over 22 yrs now. He was transferred to Wright about two years ago where they created a whole choir and orchestra behind him. He was at Colorado Springs prior, where he was lead singer and Bass player for the "Band of the Rockies". Yes, it is skating duty as all he does is be the entertainer at the get togethers, such as the President's party's, and the show at Wright every year around July 4. He had just went on leave when Ford died and they tried to have him come back to handle the funeral. He begged out and his assistant went.

To all in the military, know that all of we old vets are always with you. Stand tall and be proud. Do not let the ignorant bother you. There are more of us, than them.

RETired MARine

USMC Ret

Vietnam 68/69