SoL as affirmative defense?

[Ben S.]

Good Morning,

At this point I have not yet been in direct contact with a (former) major Credit Card of mine, yet my relatives have been recieving strange phone calls regarding me by financial institutions (which refuse to give their Co. name - my relatives due not have caller ID) even though the SoL has expired years earlier.

I would be very grateful if a kind soul (or more then one) could please educate me on a few qustions I have...

1.) If a Collection Agency (acting on behalf of a major Credit Card) makes phone calls to a debtor, and the debtor responds with a FOAD Letter (pointing out SoL has expired), what is the likely response of the Credit Card Co.?

Can the Credit Card Co. simply turn around & hand over the account to a new/different Collection Agency? Thereby renewing the harassment of the debtor?

2.) A Debtor can use a FOAD Letter to defend himself/herself against a particular Collection Agency or Junk Debt Collector (particularly after the SoL has expired), yet what about if they are dealing directly (either via phone or mail) with a major Credit Card Co.?

What can/should a debtor due in such a case (where SoL expired years earlier)?

3.) What is the likelihood that a major Credit Card Co. would sue its debtor years after the SoL has expired?

I thank you for having taken the time to read my post & a well informed response would be great!

[Linda7]

The smart response from either a junk debt buyer, collection agency or even the original creditor themselves after being notified that the debt is beyond SOL, would be to hush and slip quietly into the night!

It doesn't matter who is trying to collect, if the debt is beyond SOL - they cannot legally collect it. This won't stop them from trying, however. A lot of consumers won't know the rules of SOL and might pay them, so what do they have to lose to try and collect the debt?

You need to show them you "know" the rules, so send them the letter and point out SOL!

Edited September 16, 2010 by Linda7

[calawyer]

Had to think about FOAD for a minute

I would just demand that they stop calling you. You can mention the SOL but it is really irrelevant to your right not to receive calls. I would also demand that a copy of your letter be sent to anyone to whom they assign the debt. Not aware of any requirement that they do so, but maybe we'll make some new law.

[Guest usctrojanalum]

It doesn't matter who is trying to collect, if the debt is beyond SOL - they cannot legally collect it.

If a debt is beyond the SOL it simply means one has an affirmative defense to any lawsuit for that debt, nothing more. They can definitely still legally collect it as long as they do not utilize the courts to do so. NYS had a bill that died last year that stated a debt is extinguished if the SOL ellapses. Maybe it will be reintroduced and passed in the next session who knows but I'm sure a few States have similiar statutes now, but it is not yet the norm.

[Linda7]

When a debt collector is told "beforehand" that you know that it is beyond SOL and if pursued further - you intend to tell the court . . . I think they'll hush. If not, of course that would be the defense to get it dismissed "with" prejudice!

[Ben S.]

Linda7, usctrojanalum, and calawyer

Thank you ever so much for responding!

This current predicament that I find myself in is, alas, overwhelming.

The CC debt goes back more then 10 years (6 years past the SoL), hence I have not given it any thought (aside from NOT applying for a new CC), yet 10years later relatives of mine are informing me they are recieving harassing phone calls, yet the CA never leaves a name/number of theirs (my relatives don't have Caller ID).

I am no "LEGAL EAGLE," hence I don't know what the response will be by the CC once I send the CA in question (I have no name/address/phone number for them) the FOAD Letter (which would also have to include my actual current address, hence at that point they would know for certain where to find me me). I have never dealt with this situation

I can imagine, once I actually have the name/number/address of the CA, that a FOAD Letter will end the harassing phone calls (right know they are calling where they think I live in the hope that I'll answer the phone: demands/try to undue SoL by getting me to negotiate).

"If a debt is beyond the SOL it simply means one has an affirmative defense to any lawsuit for that debt, nothing more. They can definitely still legally collect it as long as they do not utilize the courts to do so."

usctrojanalum could you please go into greater detail as to how they would go about doing so?

I am currently SO worried at the prospect that this might lead to litigation, hence any and all advice is MUCH appreciated.

Please if you can think of anything else to add (i.e., template for a professional FOAD Letter, or a means whereby I could track down said CA's name/address) that would be fantastic. I'm currently in shock/panic mode.

Ben

[donqII]

Ben,

Could you tell your relatives you believe this is some kind

of a scam and the next time they get a call regarding this

for you they are to give the scum your telephone number.

That way maybe you can at least find out who they are.

Are you 100% certain this is from your 10 year old debt?

The other thing, but I do not have a clue if this

would work, try calling the phone company and just

say that your relatives are getting unwanted phone calls

from someone out of state and is there any way they have

records of who might be calling.

Even with caller ID if they do not identify... which is a violation,

I believe... they may block their name and/or number.

Edited September 17, 2010 by donqII
spelling

[Ben S.]

donqII

My Aunt, who is the person who always answers the telephone at her residence, already considers them scum. So much so that she immediately hangs up when she hears the same message/voice of the CA employees.

I asked her to ask them for their number, yet she insists on hanging up instead. Classic "Catch-22" situation.

As to is this really my, in excess of, 10 year old CC debt? Yes, it is the only debt that I have (that is not in good standing). It is SO old, and well past the SoL, that it never occured to me that the CC would pursue this (then again it could also be a Junk Debt Collector).

[Linda7]

Ben, after the debt is beyond the SOL - they can still "try" to collect by calling, sending letters, etc. But, if you let them know that it is beyond SOL and if taken to court, you intend to inform the court of this - they should stop. Why would they keep pursuing a debt they "know" will be shot down if they bring suit? But, they might sell it off to another junk debt buyer and the process start over again. If you ever do receive a summons though, answer in your allocated time and be sure to list that it is a time-barred debt as an affirmative defense and bring your evidence to court to prove this. This will shoot it down! However, I really don't think they will proceed to court or if so, will drop it before "court time".

Here's something that I thought would help to answer some of your questions - http://www.cardreport.com/credit-problems/collection-faq.html

BTW, try not to worry about this! You don't have to pay a debt that is beyond SOL and I feel certain, once they know that you are aware of your "rights" in regard to this . . . it should be quiet again!

I'll be back in a moment with a letter that I had written for someone in this same situation. Hope it helps!

Edited September 17, 2010 by Linda7

[Linda7]

Ben, you could tell them a "lot" more and threaten them with violations, etc., but I have used this one many times and never heard back from them. It's my "nice" approach! You can indeed go to your State Attorney General's website and look up about the SOL or even call their office to verify the SOL. This letter will make them realize you know it is beyond SOL and that you don't want any more calls. If they're smart - they know if they call anymore - they are in violation and can be sued by you!

Your Name

Your Address

City State

Their Name

Their Address

City, State

Date

Dear Collection Manager,

Re: Account Number # __________________

I'd like to inform you that I have checked with my State Attorney General and verified that the Statute of Limitations for this type of debt through the courts in Maryland has expired. If you intend to take this issue to court, I shall inform the court of my dispute of this debt and that the debt is beyond the Statute of Limitations.

Also be informed that any future communications with me must be done in writing and sent to the address above in this letter.

Best Regards,

Your Name (Typed)

[Ben S.]

Dear Linda,

Thank you ever so much for the kind words, good advice, and reassurance that a FOAD Letter might solve my current problems.

I have no doubt that (were I to actually have the name/address/phone number of said "organization" calling my relatives...in the hope that I'll answer the phone there...followed by a list of their demands/threats) once I issue the CA, or JDC, a FOAD Letter that they have to cease & disist, yet having NO idea as to how the CC Co. will respond makes me MOST nervous of all.

I too would like to think that more then 12 years after I first applied for the card, and more then 10 years since the last payment on said card, that the CC Co. would call it quits, yet they appear to be persistant.

In either case...

I much rather wish this matter not escalete into litigation (i.e., the CC Co. filling a lawsuit against me once I send their CA the FOAD Letter).

Again this is a great & helpful website, with great people (such as yourself), and I am a nervous newbie wreck.

Ben

[Linda7]

Ben, any company that would even think about trying to take someone to court that has informed them that the debt is beyond SOL and if taken to court will use that as their affirmative defense . . . well, the collector would be shooting themselves in the foot and they know it! You go ahead and send the letter and quit worrying! And remember, if you ever have the strange collector who is crazy enough to pay money to file suit to try and collect your debt that is beyond SOL . . . come back and let us know and we'll show you how to answer. It will be a win for you!

[Ben S.]

Linda7,

Well, once again, thank you ever so much for sharing your legal expertise/experiance as well as for the kind, and calming, reception here on this forum.

Thank you (from one Mid-Atlantic guy to a "Georgia Peach & Southern Belle").

Ben