FDCPA question

[grad58]

i have a question maybe some one can help me. i have a dept store cc which is default for approx 6 months and was charged off. the question i have is the issurer of this card the bank that issued the card subject to the FDCPA?

[ShortBus]

No.

[Freak]

Original Creditors are not subject to the FDCPA. From what I understand, most try to stay within some of the framework, but are not obligated too.

[Recovering Attorney]

Not the fed law. There may be a state law covering original issuers.

[smokenjoe]

I live in California and I have a judgment against me in another state that is over 7 years old. The judgment itself reads: 'This is an attempt to collect a debt. Any information obtain will be used for that purpose.'

So, the judgment itself is an attempt to collect a debt.

Now, the company who was awarded the judgment has gone out of business

and their name remains on the judgment as the plantiff. Another company who says they now own the judgment is wanting me to pay them, but they will show me no proof that they are actually the owner of the judgment.

The FDCPA Section 807 False or Misleading Representation

part (5) reads: (it is a viloation of the FDCPA) to make a "threat to take any action that cannot legally be taken or that is not intended to be taken."

Question:Is it a valid argument that the judgment is a threat?("this an attempt to collect a debt") that cannot legally be taken (the original company is out of business and can no longer legally collect in the state where the judgment was awarded).

Sure the company is out of business, so I guess it could be argued there is no "threat", but the threat appears intrinsic to the judgment itself and if there is no plantiff then is there still a case? Also, doesn't federal law require that a creditor clearly identify to whom the debt is owed and for what amount is owed? Thanks for your help.

[Freak]

The judgment itself reads: 'This is an attempt to collect a debt. Any information obtain will be used for that purpose.'an attempt to collect a debt.

I don't believe that is the judgment, rather a required statement from the collector notifying you that they are attempting to collect a debt. A judgment is not in and of itself an effort to collect a debt.

If the company purchased the debt, they may have a right to collect on it. However, there may be some state laws governing that, and I'm not sure how state law works in CA - I believe I have read that there is a time-barred statute, but I don't know if it applies to judgments.

This is what the validation process if for - to see if they have a legal right to collect the debt.

[x-ray]

"I live in California and I have a judgment against me in another state that is over 7 years old."

Because the judgment is from another state, legally they cannot do anything to you in California.

I would remind them about your rights and DV them. They MUST show proof that you owe THEM this debt. Why should you pay them and not somebody else, like your neighbor for example? If I send you a copy of your judgment (public records, anyone can get it), will you pay me?

FDCPA Section 809. Validation of debts [15 USC 1692g]

( 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.

[Amerikaner83]

Not so fast.

A Judgement can be "domesticated" to another state....and the Typical SOL on judgements is 10 years (renewable)...

[x-ray]

"Not so fast. A Judgement can be "domesticated" to another state....and the Typical SOL on judgements is 10 years (renewable)..."

Theoretically, yes... Practically, it is extremely unlikely... In particular, when you are talking about a default judgment. I do not know any cases when a default judgment from another state was easily "domesticated". Do you?

It is extremely unlikely that they would go so far as to getting a "sister-state judgment" (for example, a sister-state judgment must be made in a Superior Court ), it is not that easy and it is expensive (most likely they will not bother unless you owe them a lot of money and have significant assets in CA)

Do you know any cases when an old (7 years) and a few thousands credit card debt judgment was "domesticated"?

From my other post:

While the actual methodology differs from state to state, the mechanics are typically similar. Once a money judgment has been perfected by the issuing court, the judgment debtor then tries to get the judgment debtor to "voluntarily" pay the judgment. Failing to obtain the cooperation of the judgment debtor, the judgment creditor then determines what property is owned by the judgment debtor and where that property is located. If the property of the judgment debtor is located in the state that issued the judgment, the judgment creditor can then proceed with enforcement. However, when the property of the judgment debtor is located in another state, the judgment creditor may need a "sister-state judgment" issued by a court in the state in which the property of the judgment debtor is located.

To obtain entry of a "sister-state judgment," the judgment creditor applies to a court in the state in which the judgment debtor's property is located. Some courts have a particular form which must be used by the judgment creditor and there is typically a requirement that the application for entry of the sister-state judgment be filed in a particular court (i.e. - applications for entry of a sister-state judgment must be made in a Superior Court and not in a Small Claims or Municipal Court). In addition to the application, an "authenticated" or certified copy of the judgment, issued by the court that originally issued the judgment, must be attached.

After filing the application, the judgment creditor must give the judgment debtor notice of the filing. This enables the judgment debtor to raise certain bars to the issuance of the sister-state judgment, such as defects in the issuance of the judgment or the original judgment is not final and unconditional. If the judgment debtor does nothing, typically the sister-state judgment is issued and then the judgment creditor can pursue all available remedies for enforcement of the judgment in the sister-state.

[x-ray]

If the foreign (out-of-state) judgment was entered by default, they need to cite the relevant statues and rules of foreign court, the date for vacating the default expired on such and such date without the judgment debtor moving to vacate the same.

Excusable default (a reasonable excuse for missing the original court date) is the most common reason for vacating a default judgment. For example in NY, and in most other states, there is a time limit for moving to vacate a judgment because of excusable default -- one year from the date you were served with a copy of the judgment. If you were never served with a copy of the judgment, your one-year clock has not started. The court can also vacate a default judgment if you were not properly served with a summons. There is no time limit for seeking to vacate a judgment on the grounds of lack of jurisdiction (improper service).

Because a one-year clock has not started (unless you were served with a copy), the default judgment cannot be "domesticated" in another state because it is still a "vacatable" judgment (one-year clock has not started).

In short (assuming that you had initially proper service with summons), they would need to serve you again (serve you according to law) with a copy of the judgment, wait for one year and only then they can file in a Superior Court in your current state and prey that you will not contest it.

If you were not served initially according to law with summons, there is no time limit for seeking to vacate a judgment on the grounds of lack of jurisdiction (improper service); as a result, this default judgment cannot be "domesticated" in another state because it is a "vacatable" judgment indefinitely.

I hope you see that it is not that easy and it is not an automatic "domestication" for a default judgment.

[smokenjoe]

Thank you for those who responded to my posting.

The judgment against me is in Florida. It is not a a default judgment.

I made a written reply to the court at the start of the trial and was out of state during the rest of the trial. I was unaware that the trial was continuing and notified the court that I was moving to California in my letter. The Florida court was an inconvenient forum since I had to leave the state and come to California for employment reasons. I had asked that the case be heard in California.

Ironically, the company that sued me was based in California, but decided to sue me in Florida-which I know is their option.

My understanding is that they have 10 years to domesticate. It's a relief to know that the domestication process is unlikely. I am actually willing to settle

this judgment if the company would just prove to me that they own it. The settlement, would have to be, of course, at a discounted sum. I don't own any real estate or have any significant assests in California or anywhere else-so perhaps they won't bother pursuing the issue. Also, after many letters to the "new" judgment creditor which were ignored, I decided to send them a

letter requiring them to cease contacting me. This may have been a mistake on my part, since suing me now would be their only option-which again, I hope is unlikely.

I'm not sure if I agree that the judgment is not an attempt to collect a debt.

Reason: In Florida, a judgment automatically becomes a lien on real estate

which is located in the county where the judgment is refiled... Hmm??..maybe I'm wrong...but that sounds like an attempt to collect. Best Regards...