DV CA, received a response, but out of SOL?

[krnewell]

Original Creditor is Keybank. It was an installment loan for a vehicle. Sent a DV to Calvary and they responded with a copy of the Consumer Note that you can barely read. This was around 05/2007.

They sent a letter again last week giving a special tax season settlement offer!

Keybank isn't on any credit reports and hasn't been on any for at least a 1 1/2 years. It is my husbands credit and since I started working on cleaning it up, it hasn't been on it. The date of the purchase of the vehicle was in 1996.

Is this a solid defense that the account is out of SOL? How can I be sure if it isn't on his credit report so I don't know the date of last activity?

If it is out of SOL, what do I do with the CA so they'll stop sending us letters and trying to collect the debt? Anything?

Any advice would be great.

[Ahntara]

"...isn't on his credit report..."

Your post indicates that this may be too old to appear on his cr. Reporting Period is determined by the DOFD immediately prior to default. From that date, the TL may appear for 7 years plus 180 days. It may simply have aged off.

SOL is the time period a creditor may sue to recover money owed. MT doesn't have a Statute of Repose, which extinguishes the debt upon expiration of SOL. Therefore, the creditor, a CA or a JDB may continue efforts to collect indefinitely. These efforts have no 'teeth' post SOL & RP because there are little consequences for not paying at that point. That doesn't stop them from sending correspondence. IF you happen to respond with payment, it's a fairly cheap way to generate revenue.

You can send the current CA a dispute letter, DV or FOAD. Any of those typically get them to 'go away' pretty easily. But nothing stops them from selling the account to another JDB and sending another dunning notice. Your only way to actually STOP them is to pay the debt.

[retmar]

This "Statute of Repose" claim serves no real purpose here, and, can be confusing to some. You need to stop referring to it in regards to SOL on debts.

The SOL on debts is clear. IF the creditor, either OC, assigned CA, or JDB, fails to not pursue legal action to protect their legal rights of claim by the time the statute expires, they forfeit their right to legal action. This simply means that no legal recourse, the filing of a civil suit in any court, remains. Does a "moral" obligation still remain? Of course!

They do have the legal right to continue activity for eternity, as long as they do not threaten, or harass. As long as their communications only "ask" or "suggest" payment, they are legit. Many will send a periodical letter, every other month to every six months, which is totally legal. If they send one weekly, that can be considered harassment. Phone calls fall into a "gray" area, and, are considerted mostly on content of conversation. Your primary section for this is found in FDCPA 807(2)(A), as they are misrepresenting the legal status of a claim. Check your state to see if they have any statutes on this.

Why this is important to those who are unaware, is that it has been found that over time, papers, contracts, whatever, to show proof of debt are not readily available, or, do not exist, which causes an unfair decision in court, as actual proof of liability can not be proven. Therefore, to protect all parties, the "Doctrine of LACHES" comes into the picture, as an added "right" to the SOL statutes.

As to the OP. If this debt is not showing on the CR, it is more than likely timebarred, based on the SOL for your state, and, as another noted. Also, I am assuming this was a repo. If so, other items you need to be aware of is IF, when the repo occurred, was this handled in the proper manner. By this, I mean, did they send the required notices, etc., within the required timeframe? Each state has their own on this, and, if not followed properly, they cannot come after you.

[krnewell]

I think I'm understanding what everyone said. My husband acquired this bad debt during his reckless years and way before we ever met. So, he doesn't have any paperwork on it. His memory says the DOFD was around the summer of 1997.

So, there isn't really a way to get them to stop sending letters, etc.? But we are protected in the fact that they can't sue us for this collection at least? Do we just continue to read the letters they send us and then file them away and not worry about it? Until we have extra money to just pay it sometime and have a clear conscious?

Sorry, just still confused on this some...

[Amerikaner83]

no.

When you get the letters, they'll say something to the effect of "unless you notify this office within 30 days you dispute the validity...". That's when you send them the letter outlined above (the C&D letter).

[ShortBus]

Refer to § 805© of the FDCPA. You can tell them (via CMRRR) you will never pay so they can *never* contact you again. They're allowed to contact you one more time to say "Ok, we'll stop bothering you now". After that, if they ever contact you again, file suit, pass Go, and collect $1000.

Edit: They are allowed to contact you again if they opt to try and sue you for the debt, but it sounds like this is past SOL. It's generally a Very Bad Idea to invoke § 805© on a debt that isn't past SOL since the only way they'll ever collect is by suing.

[retmar]

Exactly!

As the two previous posters stated, either way, all that is required of you to cause them to stop sending letters is to send them the C&D.

All you need to say is:

"This letter is a demand you cease and desist all further collection activity on this alleged debt. The debt is now timebarred and no legal recourse is available to you. Any further activity on your part can and will result in your being in violation of 15 USC 1692 et seq, including, but, not limited to, Section 15 USC 1692e(2)(A) as you will be misrepresenting the legal status of the alleged debt. I will use all avenues available to me, including, but, not limited to, naming "ADUB" as a defendant in a civil suit in District Court of "XXX" county, state, in assuring you, "ADUB", abide by the laws as they are written.

You are forbidden to ever contact me again, either by phone or by US Mail, unless responding as allowed in 15 USC 1692c©, which allows you one final communication to advise of your decisions on this matter. Do understand that if you do respond, it must be in writing as no phone calls will be accepted. This applies to all representatives of "ADUB", assigns, current or future, and/or attorneys for "ADUB".

If you are aware this CA is a JDB, you will want to also include that for them to claim that since they now own debt, the SOL does not apply, they are in error as 15 USC 1692a(6) is clear and concise in who they are and how they are bound by the law. They are a collector, period.

[StressPot]

Refer to § 805© of the FDCPA. You can tell them (via CMRRR) you will never pay so they can *never* contact you again. They're allowed to contact you one more time to say "Ok, we'll stop bothering you now". After that, if they ever contact you again, file suit, pass Go, and collect $1000.

Edit: They are allowed to contact you again if they opt to try and sue you for the debt, but it sounds like this is past SOL. It's generally a Very Bad Idea to invoke § 805© on a debt that isn't past SOL since the only way they'll ever collect is by suing.

If they are given a C&D or the statement that they refuse to pay the debt, yes they have to stop all contact, including telephone and mail. If circumstances permit, they can still initiate litigation (i.e. sue you).

I am confused by your edit. If they sue, that is a permissable contact due to it going through the court system. Your edit sounds like a condition set on the CA once they receive a DV? Is that what you were trying to relay?

StressPot

[ShortBus]

Hmm? I'm not following you. If you give them a C&D, they must stop communicating with you, with two exceptions: 1) To tell you that they are complying with your wishes or 2) if they beginning legal proceedings against you.

I edited the post because I forgot to mention that second exception. And to warn people that demanding a C&D on a debt that's not past it's SOL is equivalent to walking around with a sandwich board that reads "PLEASE SUE ME!"

[retmar]

You also need to realize the CA is under no obligation to even respond to a C&D regarding their intent. They may simply file or go away. The statue is simply saying they are allowed to respond one more time, if they so desire, to state their intent.