Help! I Dont Know What To Do!

[CaliDude09]

Ok. I do not have knowlegde in the legal aspect of debt collection at all... so im gonna explain my situation as best i can.

-I live in CA

-Bank of America Debt ran to $2500

-Last payment was made Nov.2004 (been 4+ years)

-Interest has ran balance to $8000

So... Ive always been contacted via mail every so often by Collections... about a year ago I was starting to be contacted by a Law Firm, via mail.

As I been negotiating and trying to clear my debt, I ask, after learning about the Staue of Limitations... "Can you take me to court if its been more than 4 years?" Lawyer responds "no, that only applies to criminal cases".

So im confused.

I've never been served, nor have I ever received a court date. Can I still be sued?

They explained to me that "i dont need to be in court to be sued, the judge will sentence me to pay by garnishing my wages".

What options Do I have?

Please help me! Do i need to explain more in detail? -Phillip

[willingtocope]

The lawyer is misleading you.

Yes, he can take you to court even if the 4 year SOL has expired on your debt. But, if you show up, and raise the SOL as an "affirmative defense", and the judge agrees, the lawyer doesn't win.

WIth debts, the SOL is not a "get out of jail free" card...it simply means if they sue, they probably won't win. But, you still owe it, and they can still try to collect it...they just can't win in court.

[CaliDude09]

I understand its not a "get out of jail free" card. I was using the SoL as leverage to negotiate around 30% of the balance. Is that wrong of me?

I would really wanna know what i should do... should i wait for them to take me to court? Get a lawyer?

Advice to call the law firm and renegotiate?

[willingtocope]

Kind of your choice. If it were me, and the original creditor still owns the debt, I would feel a moral obligation (if I had the money) to call the original creditor and see what I could work out. And, yes, mention the SOL in your negotiations.

On the other hand, if the debt has been sold to a junk debt buyer, then I, personally, would never give a JDB a penney unless ordered to by a court...which, with the SOL passed, isn't going to happen.

[CaliDude09]

Kind of your choice. If it were me, and the original creditor still owns the debt, I would feel a moral obligation (if I had the money) to call the original creditor and see what I could work out. And, yes, mention the SOL in your negotiations.

On the other hand, if the debt has been sold to a junk debt buyer, then I, personally, would never give a JDB a penney unless ordered to by a court...which, with the SOL passed, isn't going to happen.

Thank you willingtocope. I will try this. Any other suggestions?

[willingtocope]

Get a copy of your credit reports from www.annualcreditreport.com See who owns the debt. If its BofA, call them. If its the lawyer, send him a "cease and desist" letter.

[NeedingDebtRelief]

Hey CaliDude,

I am not expert on the situation. However from my past experience, trying to negotiate with a lawyer from the collection agency/firm is a disaster. Stop answering emails and negotiation until that validation is done. Everything in those emails are scare tactics to get money. Mine were in mail form. If you have not been sued already, do the debt validation letter. You can check to see if they filed a suite against via internet. I checked mine over the internet. If not then mail your validation letter PRONTO, this may help since the debt is older than 3 years. If a case has been filed, then when you arrive to court the first time, you can negotiate with the attorney then. It would be in writing and filed at the court house. PLEASE DO YOUR VALIDATION LETTER if you haven't. That lawyer is out to make money.

GOOD LUCK and Get typing.

Needing Debt Relief

[wahoo238]

I understand its not a "get out of jail free" card. I was using the SoL as leverage to negotiate around 30% of the balance. Is that wrong of me?

I would really wanna know what i should do... should i wait for them to take me to court? Get a lawyer?

Advice to call the law firm and renegotiate?

I personaly would just send a C&D letter and watch my back. You are in Calif and have the Rosenthal Act to back you up, it is illegal to bring suit on a time barred debt. If they did you would have a cause of action for counter claims.

[DebtLawRookie]

I personaly would just send a C&D letter and watch my back. You are in Calif and have the Rosenthal Act to back you up, it is illegal to bring suit on a time barred debt. If they did you would have a cause of action for counter claims.

BINGO!!!

Or you could file a demurrer...which means you dont even answer their summons and complaint. Its past the sol and unless you have the money and want to settle, then stopping them in their tracks is an option you have.

While I dont trust a lot of information at wiki, (since they allow editing) heres a link that does a good job of explaining it: http://en.wikipedia.org/wiki/Demurrer

But realize that if you make any payment or sign anything they send you, you could restart the SOL. If its not the OC, I would tell them to pound sand and go forward with the suit since the FDCPA violation will fine them $1000 (to pay you). They will probably go away after that.

Another thing.....tell them you DO NOT discuss financial matters over the phone, because guess what? you dont have to...... Ask for their name and address, and then send them a "cease and desist" letter through certified mail (CMRRR). Use the search function here or on google if you need more explaining of any legal terms you may not understand.