Jump to content

California Collection Thread


ADSOFT
 Share

Recommended Posts

We have had a few questions on the law in CALI and we lost great thread over on the old board. So I'm going to start a new version of it, since I goto busy and never finished reading it, especially the law in cali regarding the collections on TIME-BARRED debts.

So my first two questions are

#1. Does anybody remember the link the CONSUMER REPORTS PDF file that explains Cali Debt Collection laws.

#2. Does anybody remember the were in if it states that it is illegal to collect on a time-barred debt???? ( bill over 4 yrs old)

Link to comment
Share on other sites

  • Replies 169
  • Created
  • Last Reply

Top Posters In This Topic

ADSOFT,

California law prohibits a creditor from suing for a judgement after the SOL has expired, but it does not clearly state if other types of collection activity are prohibited past the SOL. You could probably make a case saying that collection after the SOL has expired is prohibitted by California law (including reporting to the CRA's), but you would need to find supporting case law. I have been looking for case law to support this position and did not find any cases that would set a good precedent. That doesn't mean you couldn't make a convincing legal argument and win, it just means that you may want to find other clear violations before you go to court.

Oh ... If you find any case law that sets a good precedent in this area, please post it.

Link to comment
Share on other sites

Hope you don't mind if I jump in on this thread. I think this is a very useful thread as well as a great discussion for us. I'm looking at the section that you mentioned. It states that it is a violation to attempt to collect a claim that is too old to be enforceable.

Now, in the end notes, it refers to these: 15 USC 1692e(2)(A); see also Vivil Code 1788.14. The FTC has construed the FTC Act to prohibit misrepresenting tat an obligation exists when it does not.

It also refers to this: In Kimber v. Federal Financial Corp. the court held that it is unfair under the federal statute to file a time-barred collection suit against a consumer, and that it is deceptive to even threaten fot file such a suit.

I also found this about Kimber vs. FFC. The court held that it is "unfair" within the meaning of the federal statute to file a time-barred collection suit against a consumer, and that it is a deceptive act to even threaten to file such a suit. The court found that the suit itself misrepresented the legal status of the claim by implying that the claim was lawful and that the collector would prevail. The court found that strong legal and ethical policies existed against filing suits after the statute of limitations had expired, and that the collector had no reason to believe that the statute of limitations had been tolled. These plolicies, the court said, were strengthened by the federal statute's pupose to protect even unsophisticated debtors who might pay time-barred claim rather than assert a defense. Other examples include claiming a debt exists when it is asserted against a person who is not legally obligated (for example, a consumer's relative), or when the debt has been discharged in bankruptcy, or when it arises ot of unordered maild merchndise.

It also points to a couple more cases which I'm going to be looking up in a minute.

Andi

Link to comment
Share on other sites

Here is some more input to this thread. Niner referred to CCC 1788.14. Yes, it does fit, but, according to "Ironman", CCC 1788.17 is more appropriate as it creates their State liability for following Federal Law (1692e(2)(A). It also fills in most holes to have your case heard in State for debt collections. After reading, I fully agree with him. Besides, we all know how brilliant he is as to legal issues.

Also, for those who haven't read the whole Summary, here is a little more info. Be sure to read all endnotes. They are referenced by the numbers inserted in the sentences.

To answer other questions. When a CA verifies a debt to the CRA that is past the SOL, they are in violation as their reporting is considered

"continued collection activity". FDCPA 807(2)(A) 15 USC 1692e(2)(A): "The character, amount, or LEGAL status of any debt". Since the SOL is past, they have no legal recourse to the debt. All they can legally do is send a dunning letter hoping you will cede and pay them. The letter cannot threaten to do anything. I hope this clarifies some misunderstandings.

I agree with Adsoft that this thread needs to continue as Calfironia has a lot of laws other State's don't and can help Californians. Maybe Swede or Kristy can find a way to put this info somewhere so it can be more readily available to others.

Another thing, Niner and I have been trying to find the actual case for Kimber v Federal Financial Corporation. If anybody finds it, please post for everyone. As Calawyer said, it can be found in a Law Library. If anyone has access, please do so for the site.

Link to comment
Share on other sites

Retmar Thanks for Responding, you know I really respect you opinion.

I read the summary several times, especially were is says about the "ENFORCABILITY" of a debt, but it seemed to imply/state that you can't sue but you CAN attempt to collect, is that correct?????

To ask a more direct question, if a CA or and OC sends you a bill on a time-barred debt are they breaking the California FDCPA

I appologize for asking that once more, I believe you answered it the DAMN thread is GONE. :cry::cry::cry:

Thanks in Advance!!!

Link to comment
Share on other sites

As I mentioned above, they can only legally send dunning letters w/o any threat of any fashion. Since California holds the OC just as liable as a CA to the FDCPA in most cases, it would more than likely include them. Since the law clearly states "legal status", then how can anyone legally "continue activity" when they have no recourse. There is no law I can think of that says you can't send a dunning letter, except if they send one daily you may have recourse for harrassment, only one that says they can't sue. No law allows them to reage the account, so what is left? Send the consumer a dunning letter in hopes they give in and pay. This is the way I intrepret the law. If I am, in fact, in error, I hope someone will show us all. Calawyer, am I right?

Adsoft, go to this site, read, and post here your opinion. I already have mine and want to see if you agree. It is: http://community-2.webtv.net/YChallenge/storage/page10.html. I don't remember how I got this, but, it is interesting, especially if it is true. You'll understand when you read it. Keep trying. I just did and it won't work.

Link to comment
Share on other sites

retmar, I interpret(sp) that part of the law the same way as well. Hopefully we are both right.

I'm off work for the next 3 days, so I'm gonna see if I can go to the library and try to dig up Kimber v. FFC. Hopefully I'll have some luck there. If I do, I will be sure to post it.

Andi

Link to comment
Share on other sites

As I mentioned above, they can only legally send dunning letters w/o any threat of any fashion. Since California holds the OC just as liable as a CA to the FDCPA in most cases, it would more than likely include them. Since the law clearly states "legal status", then how can anyone legally "continue activity" when they have no recourse. There is no law I can think of that says you can't send a dunning letter, except if they send one daily you may have recourse for harrassment, only one that says they can't sue. No law allows them to reage the account, so what is left? Send the consumer a dunning letter in hopes they give in and pay. This is the way I intrepret the law. If I am, in fact, in error, I hope someone will show us all. Calawyer, am I right?

Adsoft, go to this site, read, and post here your opinion. I already have mine and want to see if you agree. It is: http://community-2.webtv.net/YChallenge/storage/page10.html. I don't remember how I got this, but, it is interesting, especially if it is true. You'll understand when you read it. Keep trying. I just did and it won't work.

The link wasn't working?????

I agree, they don't have any legal recourse, but is sending a bill and asking for money ILLEGAL. If I have a bill from a CO/CA on a time-barred debt, have the CO/CA broken the FDCPA rules????

Retmar and Niner,

I think you guys are right, if you send somebody a bill then they should have some contractual binding agreement with the debtor,... by definition all contractual obligations are eliminited by the SOL ???? .... otherwise they are misrepresentig the debt, and people would be getting random bills in the mail with an excuse me, escape clause ?????

It just seems to easy, that if a creditor bills you beyond the SOL they are inviolation of the FDCPA, ... yet then again it is only a $100 ... $1000 violation, so worst case the creditor will be responsible for $100 bucks????

Link to comment
Share on other sites

I couldn't get it to work either. Just use your address box and see what happens.

To answer your first question, no, as long as they don't threaten you in any fashion. They are just wasting postage. MAYBE, if you sent them a C&D citing the law, then they would if they continued sending letters since a C&D only allows one more correspondence regarding their intentions. It may fall under harrassment. Not too sure on that one.

I agree as the OC has lost their right to any legal recourse.

As to your last, again, they can send a dunning letter, they just can't cause you to pay. I agree as to it should be a violation, but, from what I understand, if they do as above, they are not in violation. Like you said, only a $100. To me, it isn't worth the trouble. I would only pursue if it would benefit myself and other consumers. My opinion, keep each letter w/envelope in a file for future use. Be sure to put the date you received the letter on the envelope. This way it will coincide with their meter date, plus normal travel time. Just a little extra insurance in my opinion, whether as plaintiff or defendant. I do it.

Niner, is the library still over on Clark? You may have to go over to State or CC and see what there is. I thought there was one in my town, but, there isn't. It's over 30 miles from me.

Link to comment
Share on other sites

To answer your first question, no, as long as they don't threaten you in any fashion. They are just wasting postage. MAYBE, if you sent them a C&D citing the law, then they would if they continued sending letters since a C&D only allows one more correspondence regarding their intentions. It may fall under harrassment. Not too sure on that one.

I agree as the OC has lost their right to any legal recourse.

As to your last, again, they can send a dunning letter, they just can't cause you to pay. I agree as to it should be a violation, but, from what I understand, if they do as above, they are not in violation. Like you said, only a $100. To me, it isn't worth the trouble. I would only pursue if it would benefit myself and other consumers. My opinion, keep each letter w/envelope in a file for future use. Be sure to put the date you received the letter on the envelope. This way it will coincide with their meter date, plus normal travel time. Just a little extra insurance in my opinion, whether as plaintiff or defendant. I do it.

Niner, is the library still over on Clark? You may have to go over to State or CC and see what there is. I thought there was one in my town, but, there isn't. It's over 30 miles from me.

Thanks RETMAR,

That billing question has been driving me crazy. I have some bills sent on a couple of time barred debts. I guess all they are going to be worth is $100 bucks if anythig!!! Smogtek won in court on some FDCPA stuff and only got a hundred bucks, ... that sucks. But, I read a court case on the net, can't find it, that a consumer got 3-4 dunning letters and sued a CA before the same judge that had already FINED the CA, he got $1000.00 and $40,000 for repeat violations????? I wish I could find the thread. I did a "FDCPA VIOLATIONS" search on google.

Thanks for all the help, glad you are around, I think all the CALI people are lucky you are member.

Link to comment
Share on other sites

You're welcome! Just remember this is how I intrepret the law. My answers also come from questioning others, such as the FTC, AG, etc. Also, I encourage anyone that finds I am in error, to please, don't hesitate to say so and be sure to show proof. This way we can all learn which is what this board is all about.

If you do find that particular case, be sure to share that with everyone as it would definitely help in waking up a few CA's. Especially, as in your case, it could possibly bring more than $100.00-$1000.00.

Link to comment
Share on other sites

I couldn't get it to work either. Just use your address box and see what happens.

To answer your first question, no, as long as they don't threaten you in any fashion. They are just wasting postage. MAYBE, if you sent them a C&D citing the law, then they would if they continued sending letters since a C&D only allows one more correspondence regarding their intentions. It may fall under harrassment. Not too sure on that one.

I agree as the OC has lost their right to any legal recourse.

As to your last, again, they can send a dunning letter, they just can't cause you to pay. I agree as to it should be a violation, but, from what I understand, if they do as above, they are not in violation. Like you said, only a $100. To me, it isn't worth the trouble. I would only pursue if it would benefit myself and other consumers. My opinion, keep each letter w/envelope in a file for future use. Be sure to put the date you received the letter on the envelope. This way it will coincide with their meter date, plus normal travel time. Just a little extra insurance in my opinion, whether as plaintiff or defendant. I do it.

Niner, is the library still over on Clark? You may have to go over to State or CC and see what there is. I thought there was one in my town, but, there isn't. It's over 30 miles from me.

I think there is a library over on Clark. There is also one next to the Sherrif's station. I just may drive up to the College and see what I can find there.

Ad, if they send you something that you know is a time-barred debt, couldn't you just respond with the SOL letter? There is one for both the CA and the CRA.

Andi

Link to comment
Share on other sites

I sent SOL letters to both the CA and the CRA and I haven't heard anything back from anyone. I even made good on my threats to report them to the BBB, the FTC and the AG.

That's what I keep hearing with SOL accounts, all you have to do is send a C/D letter and if they keep billing iti MIGHT be harrasment!!!

The only catch I think is that if you send a C/D without a DV first then you might be admitting guilt and the account will stay for the 7 yrs from DOLA.

It may be too late for you now(or maybe it isn't since you know you have nothing to lose if they validate) but I would DV first, then if they can prove I would send the SOL C/D followed by a harrasment letter. It will also be interesting what KIMBER & FED????? has to say about TRYING to enforce and or bill on SOL obligations. I'm sure worst case you could get them on harrasment and FDCPA violations.

I'm still not sure if BILLING and/or SENDING a bill is considered attempting to ENFORCE a bill or only entering a law suit?? There sure seems to be a lot of CA BILLING people on SOL bills out there. I know I DVed a CA when they tryied to collect on a SOL bill and I got two letters after the DV letter and one phone call. So I called them back and they said "we don't have the bill anymore" ?????

What do you think TECHGODDESS, is billing somebody on a SOL account considered "trying to enforce a bill" any therby misrepresenting it's enforcability. ... If it is then by sending you a bill they are looking at a $100... $1000 violation and all you have to do is take the bill to court????

Link to comment
Share on other sites

Experts, correct me if I'm wrong but the 7 year reporting period is 7 years from the original chargeoff. So it SHOULD come off my report all by itself in 2006 (though they've re-aged it, too) They actually don't send me bills anymore. When I disputed with EQ, they verified (which is considered a collection activity.)

Link to comment
Share on other sites

Experts, correct me if I'm wrong but the 7 year reporting period is 7 years from the original chargeoff. So it SHOULD come off my report all by itself in 2006 (though they've re-aged it, too) They actually don't send me bills anymore. When I disputed with EQ, they verified (which is considered a collection activity.)

If the CA reaged it that's a incorrect information and you might possibly have them on a violation and MIGHT be able to ask for deletion or go to court.

Yes, the account should stay on report for 7 yrs from the time you stopped paying( What the OC is reporting, if it is) BUT you might be able to get the CA to remove the entry if you can get them on a violation!!!

The CA that I'm dealing with is collecting on a debt the is within the SOL so I have to be careful how I deal with them because they might file a lawsuit!!!

Link to comment
Share on other sites

Adsoft, I can understand your apprehension as to the DV before a C&D on a timebarred debt, but, forget it. If the debt is timebarred, they have no legal recourse to the debt, period. Therefore, it does not matter whether the debt is yours or not. The original creditor has forfeited their right to pursue "activity" on the debt. They can continue to send "bills" in hopes you will pay, which is entirely up to you, but, cannot threaten to do anything about it. They can deny any further services to you until paid. I hope this clears it for you.

Link to comment
Share on other sites

Adsoft, I didn't include a comment about your concerns as to the DV on a timebarred debt. My last post hopefully clarifies your concerns. As to the second part of your concern, I must say this. Under USC 1692e(2)(A), a CA who verifies a debt with a CRA that is timebarred upon dispute is in violation. Verifying is considered continued collection activity according to the State of California. Does this answer your questions?

FYI, I tried to edit my last post to include this, so forgive me. For the last two days I have had nothing but trouble getting into the Discussion section. It usually times out before the next page. I just now found that if I don't log in first, it works okay. When I log in, it doesn't want to work. I'm going to let Admin know about it.

Link to comment
Share on other sites

Adsoft, I didn't include a comment about your concerns as to the DV on a timebarred debt. My last post hopefully clarifies your concerns. As to the second part of your concern, I must say this. Under USC 1692e(2)(A), a CA who verifies a debt with a CRA that is timebarred upon dispute is in violation. Verifying is considered continued collection activity according to the State of California. Does this answer your questions?

Retmar, are you sure this is true? Everyone seems to be pretty confused about this. If it is, then I have a bunch of accounts that should come off. Does this hold true for the OC as well, or only CAs? It would be great to get clarification on this.

Thanks.

Link to comment
Share on other sites

Adsoft, I didn't include a comment about your concerns as to the DV on a timebarred debt. My last post hopefully clarifies your concerns. As to the second part of your concern, I must say this. Under USC 1692e(2)(A), a CA who verifies a debt with a CRA that is timebarred upon dispute is in violation. Verifying is considered continued collection activity according to the State of California. Does this answer your questions?

FYI, I tried to edit my last post to include this, so forgive me. For the last two days I have had nothing but trouble getting into the Discussion section. It usually times out before the next page. I just now found that if I don't log in first, it works okay. When I log in, it doesn't want to work. I'm going to let Admin know about it.

Retmar, Thanks for the response.

So are you basically saying that since the SOL on written contracts is 4yrs in CALI, then as long as you dispute it has to come off???

I believe that because I read a post that where an ARIZONA member was stating that judgement in ARIZ have a 5or4 year SOL, so after 5/ 4 yrs they have to come off. I think admin would know she lives in ARIZ. ... BOY they have all the LUCK, or maybe that's why she lives there (LOL).

FDCPA (ie, 1692e(2)(a)) states that CA'S can't misrep debt, but in CALI OC are just as reponsible as CA under FDCPA , so even OC have to stop reporting after 4 yrs.

Question: What if the CO is paid, does it stay beyond 4 yrs????

Link to comment
Share on other sites

Question: What if the CO is paid, does it stay beyond 4 yrs????

If Retmar can figure a way to answer yes to this question and is able to site the specific laws that support his position, I will have a new hero :oops:

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.