3 CO's, -SOL question

[Holden Marscott]

I live in WA, signed the CC agreements in WA, and have not moved. 3 accounts in CA's, all are SOL since 2006. Tired of the calls, back in March I agreed to have automatic debits of $50 monthly for six months. Now I'm getting a billing statement but can't continue paying. It's been 6 weeks since their "due date" and I'm getting daily calls now. Did I reset the SOL by agreeing to 6 months of payments?

[CarolinaBlueEyes]

I live in WA, signed the CC agreements in WA, and have not moved. 3 accounts in CA's, all are SOL since 2006. Tired of the calls, back in March I agreed to have automatic debits of $50 monthly for six months. Now I'm getting a billing statement but can't continue paying. It's been 6 weeks since their "due date" and I'm getting daily calls now. Did I reset the SOL by agreeing to 6 months of payments?

it varies by state but by most state standards yes.. here in NC its the same the second you pay them the SOL starts all over again which is why you dont pay out of the SOL

[Holden Marscott]

I agreed to pay. Sure wish I hadn't! So now what???

Do I ignore them and hope they go away?

Also, since then I've been getting calls and letters from the others. Should I ignore them? C & D them? DV them?

Help please!

[hiblues]

You probably did re-set the SOL.

you may want to PM Amerikaner83

he is the most knowledgeable about WA State.

as far as suing...

Questions:

How much are the remaining balances that they say you owe

(not that you think you owe)

What are the debt? CC?, tickets?

Also,

are these reporting on your CR's?

[Holden Marscott]

All 3 show charged off, relisted with CA's.

Roughly 3, 6, & $8K balances.

[Debt Guy]

Some thoughts:

1. Yes, your payments reset the SOL. The new SOL begins to run from the date you defaulted on the payment agreement. I am not an expert on WA law -- my reference guide indicates a payment resets. You may wish to research WA statutes yourself.

2. These are pretty large balances. Your chances of being sued are high.

3. A DV is, in my opinion, pretty meaningless. Assuming you send the DV request within 30 days of the initial contact (a date which is long past) all they are going to do is send you the name and address of the original creditor and they have complied (technically, they are also required to confirm the data with the original creditor). In your case, since you are way outside the 30 day window, the law becomes a catch-22 -- they are required to respond but the law sets no deadline for the response -- so, how does a response in 50 years sound?

4. A C&D is dangerous. A C&D is a legal instruction for them to stop all contact with you. A C&D forces the creditor to choose -- either they give up or they go to the courthouse. If they can't contact you, the only collection tool they have left is to file a lawsuit. I am assuming you really do not want to go that path.

At this point, you have a couple of options.

1. Ignore it. Keep your fingers crossed that you don't get sued.

2. File bankruptcy. This might or might not make sense for you. Speak with a local bankruptcy attorney. Most will give you a free consultation.

3. Try to negotiate a deal to make it go away.

4. Build a defensive arsenal in the event you are sued. Some debt collections will cross the line for what is permissible collection activity. If a collector crosses the line and you can prove that fact, you have a weapon to use. You can use the weapon offensively (file a lawsuit for violation of the FDCPA and if you win you will get $1000 [per action not per violation]) or you can use the weapon defensively (as a bargaining chip in negotiation with the collection agency).

If you decide on #4, be forewarned of several issues: 1) you must educate yourself on what is and what is not a violation -- start by downloading the FDCPA at www.ftc.gov (it is really pretty easy to read and understand). 2) you must be able to prove the violation.

Someone will chime in here and say you have a 5th alternative -- that is wait until the creditor files suit and then try to defeat the suit with a general denial and discovery motions to require the creditor to prove the debt. In my opinion, this is an administrative process that is not easy for most people. In your case, it will be especially problematic since you have made payments to the collection agency on these debts. Those payments may or may not rise to the level of a confession of the debt. At minimum, it will be a challenge to explain to the judge why you sent money on a debt that was not yours.

You must make your own decision here and no one else can make it for you. There are plenty of people who will give you advice. Sift and sort carefully as opinions on the internet are cheap.

My opinion is that you should opt for either #2 or #3 above. I am sure others will advance their own opinion.

Good luck to you.

[Holden Marscott]

I did consult a bankruptcy attorney. Looks like for me a chapter 7 is the way to go right now but I was hoping to find funds for settlement somehow rather than going that route

One of the CA's is not licensed in WA, should that affect my approach with them?

[Debt Guy]

One of the CA's is not licensed in WA, should that affect my approach with them?

It is meaningless if you are going to file bankruptcy.

If you are considering a settlement strategy, email me and I'll give you some tips.

[Amerikaner83]

You probably did re-set the SOL.

you may want to PM Amerikaner83

he is the most knowledgeable about WA State.

I got his PM - and it looks as if yeah, the SOL got reset. What's the board's opinion? Unfortunately, I don't see much room for any other way to look at it. This is direct from the Wa State RCW's Website:

RCW 4.16.270

Effect of partial payment.

When any payment of principal or interest has been or shall be made upon any existing contract, whether it be a bill of exchange, promissory note, bond or other evidence of indebtedness, if such payment be made after the same shall have become due, the limitation shall commence from the time the last payment was made.

[Code 1881 § 45; 1877 p 10 § 46; 1854 p 365 § 19; RRS § 177.]

Here is the website

[Holden Marscott]

What a serious bummer

Thanks Amerikaner for your message. I'll change the bank account today and begin looking ino settlement possibilities. Decided to hold off on the BK for now.

At least this one is the lowest balance collection:) (gotta look at the bright side)

Regarding the other two accounts, should I ignore them? They are past SOL by a year, although recently I have had a flurry of new calls and letters.

[Debt Guy]

Regarding the other two accounts, should I ignore them? They are past SOL by a year, although recently I have had a flurry of new calls and letters.

If you are absolutely positive the accounts are OOS, then it is safe to send a cease & desist. The previous poster and I disagree on how to do this -- she likes long threatening letters and I prefer short and to the point. All you really need to say is "cease and desist all contact with me". It has the same legal standing as the longer letter and no one is impressed with all the threats, etc.

That being said, I just want to make sure you compute the SOL correctly. First, the SOL begins to run from the date of first default. DOFD is generally 30 days after the date of last payment and assumes you don't make and subsequent payments like we discussed earlier.

In my experience, a credit card is a written agreement. You will find lots of folks on this site you say a credit card is an open account. It think their logic is flawed and you should be very careful of blindly reaching for the answer that makes you happier. If you choose to believe that a credit card is an open account, then you must be prepared to defend that position in court when you are sued. By defend, I mean literally show the judge the statue in WA law that governs.

The SOL for a written agreement is 6 years. The SOL for an open account is 3 years.

If you choose to believe the 3 year SOL, then I would not send a C&D. There is no point waving a red flag in front of the bull.

Finally, whatever you believe is the SOL, you can still be sued. For that reason, it is critical that you never ignore any summons and complaint. You must file the appropriate legal response with the court. If you fail to do so, you will lose by default and will waive all your SOL defense. Judgments hang around a really long time.

[prettykitty]

if you don't have exact records, can you call the CRA & find the exact DOLA, DOFD, if not showing on the rpt?

State Oral Written Promissory Open-ended Accounts State Statute: Open Accounts

CA 2 4 4 4

NV 4 6 3 4

According to Ron Opher, of www.ron4law.com: In my opinion, the FDCPA applies, and so the only relevant jurisdictions are where the consumer signed the loan application and where the consumer currently lives (bank location is irrelevant). If those states are different, I believe the creditor has the choice of where to sue and can select the state with the longer SOL. There may also be an argument that the contract was signed "under seal" which might lead to a longer Statute of Limitations than an ordinary contract.

[Debt Guy]

if you don't have exact records, can you call the CRA & find the exact DOLA, DOFD, if not showing on the rpt?

You can call the CRA. Better would be to call the original creditor. Info from the original creditor is, in my opinion, more reliable. What you are looking for is the date of last payment. The DOFD is generally 30 days later. Technically, you are looking for the due date of the payment that you missed that triggered the default -- that is the true date of first harm.

If you plan on using this info in court, you should ask the original creditor to put the info in writing. They will probably not want to but they usually will.

[Amerikaner83]

The previous poster and I disagree on how to do this -- she likes long threatening letters and I prefer short and to the point.

If you're referring to me, I'm a guy. And I only like longer C&D's sometimes.

In my experience, a credit card is a written agreement. You will find lots of folks on this site you say a credit card is an open account. It think their logic is flawed and you should be very careful of blindly reaching for the answer that makes you happier. If you choose to believe that a credit card is an open account, then you must be prepared to defend that position in court when you are sued. By defend, I mean literally show the judge the statue in WA law that governs.

Judges in King and Snohomish counties have ruled that the 6 year SOL applies for credit card accounts. The thing is - there IS NOTHING that says "OPEN" accoutns are 3 years in my state. It only says VERBAL and "not arising from written instrument"...it seems (unfortunately) that a vast majority of WA judges would rule on the 6 yr SOL as well.

[Debt Guy]

I'm a guy

Sorry. Some user names are gender neutral. I can't explain but I find myself making a gender conclusion based on word choice and usage. Seems I am wrong as often as I am right.

[Amerikaner83]

lol...so the "she said YES" beside the dog (now the plane) didn't point ya in the right direction?

Just teasing ya

[prettykitty]

you two are funny, it's nice to get a giggle in between the heart racing, hair pulling, YELLING at the CA's. BTW I'm an animal lover that prefers dogs

DG: You can call the CRA. Better would be to call the original creditor.

Should I be nervous about calling the OC? I've gotten an awful lot of dunnings just this week, & I'm in minimum position to pay everyone. Unless, all 13 will accept $50 PIF then I would be debt free. WONDERFUL

Debtguy: Is their a way I can call the OC without giving the impression I'm ready to pay them?

Thanx for your help!

"it's not the breed, it's just the deed"

[Debt Guy]

Is their a way I can call the OC without giving the impression I'm ready to pay them?

That depends on who you are talking to and what question you are asking.

If you are calling customer service to ask the date of last payment, then you are not likely to be dunned. Except, of course that some creditors automatically route all calls to the collection department.

If you are talking to collections, expect to be dunned. It is their job. Don't be offended by it.

If you are wanting to make a deal of some sort, before you call decide what works for you and what does not.

Don't allow anyone to talk you into something on the phone. Just say "I need to think about this and then hang up".

Personally, I encourage a calm and cool demeanor when talking to any collector. Collection is an exercise in psychology. They need to push your button and they are trained to find out exactly what button works on you. If you surrender to that, then you have given them what they want. Don't argue and don't offer explanations. It plays into their hands. Don't use abusive or vulgar language for the same reason. Maintain control of the conversation. If you get angry, then you have lost control and ceded advantage. If you can't maintain control, just hang up and call back again later.

In a sense, both you and the collector want to accomplish the same goal -- to make this problem go away. All you are doing is negotiating to a meeting point. Keep your eye on the goal and ignore all the crap.

[prettykitty]

DG: Collection is an exercise in psychology.

Dude that is so super true! I'm glad you posted that it's truly the human side of dealing with collection tyrants. Friday, a CA literally had me in tears, I couldn't sleep, & was searching the threads at 1:25am

subject: i think something is fishy about the SOL on my tl, after reading the dung ltr again today, it's says "WE ARE YOUR NEW CREDITOR". Maybe that's why the date changed?

sounds a little JDBish to me

[Debt Guy]

the human side of dealing with collection tyrants.

What you are saying reinforces the point I am trying to make. You think of the collector as a "tyrant" Don't.

In truth, they are just schmucks sitting in fabric covered box with a headset trying to meet a daily cash goal so they can go home and be with their family. They have a boss who is jerk and on their backs constantly. Their job is a nominal base plus commission (like a car salesman) so they do what they got to do. It is a hard job and there is a lot of turnover in that business.

I am not trying to excuse poor behavior. But, you got to admit that making your debtor afraid is one of those psychological tools what works.

It is always about the bottom line. Period.

I know it is too much to ask you to feel sorry for the collector. But, knowledge and perspective will help you. I have an analogy for you. People who are nervous speaking in public are told to imagine their audience naked because it is hard to be afraid of a group so ridiculous. Do a similar thing for the collector -- imagine them sitting in a fabric covered box and their butt hurts and they are worried if their kids are doing drugs or having unprotected sex and angry because their boss just gave them a psychological kick in the head for something. Now, how can you be afraid of that person?

Friday, a CA literally had me in tears, I couldn't sleep, & was searching the threads at 1:25am

Wrong. Wrong. Wrong. You are losing this psychological engagement. I am not saying to laugh it off. Put it in perspective.

I don't know your situation. You can only do what you can do. If you owe money and you know you owe money and the collector wants money and you don't have money -- what can you do? Searching the threads in the middle of the night only feeds your sense of loss. Put the problem in a box. Pick a time each day when you mess with the problems in the box and close the box when that time is up.

subject: i think something is fishy about the SOL on my tl, after reading the dung ltr again today, it's says "WE ARE YOUR NEW CREDITOR". Maybe that's why the date changed?

Don't know. What date changed? Is the discrepancy meaningful? What is dung ltr?

You should not trust your credit report for SOL anyway. If you think you need SOL as a defense, start building the defense from the OC forward. Get something in writing from the OC that establishes the DOFD. That is convincing to a judge. If you plan to dispute the tradeline, you need the same proof anyway if you plan to win the debate.

[Holden Marscott]

They are so quick to throw in a personal jab to get you to react. It has worked with me in the past, I'll admit. My last call didn't go so well but I did hang up before it got out of hand...

[Amerikaner83]

Record your calls!

Recording is a great tool! Find out if you live in a 1 or 2 party state - in any correspondence you send them, tell them all calls to your home are recorded...then record away! Since you notified them in writing, (sent CMRRR of course) it's admissable in court. That'll probably stop many personal attacks and threats they'll try to do...knowing they're being recorded.

[Debt Guy]

OK. Reality check time.

Record away. I do not think your "letter in advance idea" would stand the legal test since there would be no accord but that is just my opinion and would probably depend a lot on the judge. Only a few states require consent of both parties. If you don't know your state, let me know and I'll look it up -- I have a reference somewhere. Recordings are legal in federal court regardless of state law.

Personally, I always found it more satisfying to just tell the collector, "you don't mind if I record this call" and proceed from there. If they object, then just say, "fine, call me back when you change your mind". A competent collector will say, "OK with me" and proceed to collect away.

But if you tape then you got to have something on tape that is admissible and, hopefully, a winner.

First, most of what collectors say to you is not illegal. Some is. You need to know the difference.

It is illegal for a collector to use obscenities.

It is illegal for a collector to make certain threats -- for example, a threat to have you arrested. Failure to pay a debt is not criminal and thus there would never be an arrest.

Some things are borderline. For example, it is illegal for a collector to make a threat that they have no intent to follow through on ("I'm going to sue you" would be an illegal threat if you are never sued). However, if the collector rephrased and said "You could be sued" or "I'm going to recommend that you be sued" then it would not be an illegal threat.

There is a great murky swamp in the territory of what is and is not "harassment". To be harassment, the act must rise to the legal definition of harassment -- which is itself hard to define. Most judges will take the view they know it when they see it.

Some consumers think they are harassed when the collector repeatedly asks for money. That may be stressful but it is not harassment. The creditor has the right to ask for their money.

At the other extreme, if the collector calls you every 10 minutes all day long -- that is clearly harassment. However, most states allow the collector to make contact once per day (some states have slightly different rules). So, if I call 6 times in one day but you never answered then I never made contact and thus there is no violation.

There are all sorts of situations in between. For example, the law does not require the collector to be nice or polite. It is not illegal to be rude. Using a nasty tone of voice is not harassment.

Calling you names would be borderline - if I said you were a bad mommy for not paying your bills, that is probably not illegal. If I said you were a deadbeat, it would probably depend on the context and how the judge felt that day. If I said you were a crack head syphilitic prostitute who was going to rot in debtor hell, then it would be way over the edge.

The point I am trying to make is that there is no one magic bullet to solve collection problems. One must take a pragmatic view.

Finally, my constant caveat is if there is a violation, then you must do something about it in order for it to be helpful. There are no FDCPA cops. If you can prove a violation, you can sue and get $1000 per action (not per violation) or you can use it as a bargaining chip to negotiate with the creditor.

[prettykitty]

PK: i think something is fishy about the SOL on my tl, after reading the dung ltr (dunning) again today, it's says "WE ARE YOUR NEW CREDITOR". Maybe that's why the date changed?

I had an incorrect date rpt'd on my EXP, but it seems as if the OC sold the debt. If a debt is sold to JDB, can you still request records or "investigation" from the OC? I believe the JDB is attempting to re-age the date

DG: What you are saying reinforces the point I am trying to make. You think of the collector as a "tyrant" Don't. I understand your point I've had co-workers with personal issues they bring to the workplace. I considered them tyrants too. I'm just a little idealistic & believe people overall should be nice (life is short). When people are too sarcastic, rude, and/or disrespectful that pisses me off pass boiling point. It's worse with CA's because they can ruin your life situation.

Cali is a 2 party state, I read somewhere that a CMRRR does serve as proper notification of calls being recored if they sign. -Unsure-

[Debt Guy]

f a debt is sold to JDB, can you still request records or "investigation" from the OC?

You can ask for anything. What you get is another matter. What are you trying to accomplish with the request? Establish SOL? Delete the tradeline? Something else? How you answer determines the tactic.

When people are too sarcastic, rude, and/or disrespectful that pisses me off pass boiling point. It's worse with CA's because they can ruin your life situation.

Then you lose. Anytime you lose control, that means they got your goat. Don't you like your goat?

I know I am beating the same drum over and over. Collection is an exercise in psychology. Sarcastic, rude and disrespectful is bad taste. It is not illegal. So, why get mad? They don't know you and don't care. Anything they say is not personal. It is calculated to ruin your day. So, why let that happen? Just let it roll off your back. You will be a much happier person and better able to cope with life.

Cali is a 2 party state, I read somewhere that a CMRRR does serve as proper notification of calls being recored if they sign.

Yes, California is a two party state.

I read on the internet that pigs can fly. So, I am sure you did read somewhere that a letter to the CA establishes your right to record secretly.

I am not a lawyer but I have spent literally millions of dollars on lawyers and some of that stuff rubs off. In my practical, non-lawyerly opinion, a letter fired in to the mail room does not meet the test of binding the collection agency because there is no "accord and satisfaction". Accord and satisfaction is a concept of contract law that says in order for an agreement to be binding there must be consideration (I give you this for that) and an accord (both parties say "cool" -- meaning both parties agree on what they are agreeing to). Firing in that letter meets neither of those requirements. I am sure you will find 50 people on this site who will disagree with me and some of them may actually have a rationale why. You need to gather opinions and then decide what you think makes sense.

I still like my way and think it would work very well for you. You would hate to have your case thrown out of court because you relied on some letter to the CA. Is it worth the risk?