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Another SOL question


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There is an alleged account that is definitely SOL

 

Date of last payment was Feb. 2009 and I am in a 4 year state,

The choice of law is DE

 

I have not determined, as yet, if a new C/A bought and alleged account from a current JDB

or if they are acting as a C/A for the JDB.

 

Got a phone call that I ended up talking to someone from this C/A.

 

Short story long....

 

#1 I answered the phone and it had a local exchange on the caller ID portion.

 
#2 My machine had picked up so I could not interrupt and not thinking when I could
I just hit to call the number back.
 

#3 When they answered I knew it was a collector and stayed on just long enough to 

tell her to send it in writing...
 
Boy... she got a little miffed at me lol. Just cannot understand why I would iritate any
collector....
 
#4 She said it was an account that I had paid on for 15 years.

#5 I interrupted and said I wont discuss finances on the phone she had to send it in writing.

#6 She went on and said that I had paid on it for 15 years so dont give her anything
 about it not being my account.
 
#7 I repeated I will not talk finances on the  phone other then to state I doubt this account
and it is in full dispute.

#8 She said "You are disputing an account you have paid on for 15 years....
 yada yada yada...?
 

#9 I said send it in writing...

#10 She said no, they have sent many in writing that I have ignored. There would be no more.

#11 I said "Ma'am , no you didn't. I never got anything."

#12 She said I had and  and she was to make a determination based on the call of
what they would do now....

#13 And she will do just that today. She would check into my current employment and a couple of other things and a decision would be  depending on SOL.

Well, I hung up.

There was no mini miranda at all... just what I say above.

There was no notice of the call being recorded.


Should I ignore. or

Should I write ( if I can locate an address) DV and dispute in writing with a mention of it being time barred and electing arb if they move forward on anything, and cease calls?

 

And if I did write.... should I mention time barred? Would that kill this off or reset the SOL

as an admission.... of sorts?

 

 

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Without a recording, the call never happened. Just wait for them to do something, or go to Radio Shack if you need a grand. Just make sure it's legal to record them. They will continue to violate, don't worry. Next time, tell them YOU'RE recording the call. Bet they hang up. I got one of these two weeks ago, for a debt belonging to someone other than myself. I spent five minutes lecturing them on the FDCPA and telling them how they had committed three violations in two minutes and what I do on the forum. Never heard from them again.

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I don't see how disputing the account and refusing to pay it would restart the clock, but read your state laws to see what is required to restart the SOL.  Perhaps in a few states, an acknowledgment of the debt would restart it, but in most states it has to be a written promise to pay.

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Without a lawsuit filed, the SOL continues to run. You can talk to them all day, it is meaningless unless they filed. If this is a CA, most likely they'll give up on you and some hack law firm will sue you. If this is really out of SOL, you have a nice FDCPA counterclaim. Terms of the default are in the contract, not the state statutes.

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  • 2 weeks later...

A little update on this and a question.

 

As of today, 4-29 I received abother call from this C/A.

 

A recording on my machine  started out with

 

"Once again if this is DonqIII press one now,

If this is not DonqII press 2 now."

 

And that was the end of the recording, and seemed to be the end of

the call.

 

Now, I only mention that part of the call because the female voice used

is identical to the voice I used to get robo calls from that would start out

"Once again if this is (Little Mary Sunshine) call XXX XXX XXXX to discuss a

very importan matter.

 

Anyway, following the first robo call above that had no number on the caller ID

it went to another local number.... With the message that states

 

This is XXX XXXX XXXX and I need you to call me back today... or some such as that.

 

Well... I did, as I already knew who they were and basically what they were

calling about.

 

I identified my phone number and name.

 

The girl simply stated they had been given some paperwork regarding

a matter for me and before she continued she needed to tell me

this call was being recorded....

 

I said that is fine and I need to tell you I also am recording the call.

 

She said they never give permission for my side to record calls and

if I insist she cannot talk to me.

 

I told her that was fine but I am still waiting for it in writing from

their previous call to me. But during the saying of this she

had hung up.

 

(I was not recording it... I am in a 2 party state and would do me no good

cause they never permit me to record.)

 

It was landline.

 

Now... question.

 

I have located an address for this company.

 

This account is past SOL.

 

Do I DV this, and if so how?

 

Yes, I know the simple basics to ask for validation, in dispute, and arb election... shoprt and concise

but what I want to know is

 

if I should mention this is time barred?

 

If I should mention their FDCPA in not sending in writing within 5 days?

 

If I should mention I refuse to pay a disputed, non verified time barred debt?

 

Should I wait a week to be sure they do not send it in writing

a 2nd time....

 

I could not find that they are a debt buyer but they are noted to

scrape the bottom for even 10 or 15 year old debts and will not

play by the rules.

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You could DV, but it would be your word against theirs that your DV is timely.   If it were me, I'd send a refusal to pay.  That's the same as a C&D but not all CAs know that fact.  If they attempt to collect after receiving the refusal, they've violated the FDCPA. 

 

Just a note:  If they call you after receiving the refusal, you'd have to show the call was an attempt to collect a debt.  The reason is because a CA is allowed to contact you once after receiving a C&D in order to inform you that they're either closing their files or filing suit.  Since you can't record a conversation, they'd have to say something in their message to indicate that they were calling to try to collect.

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You could DV, but it would be your word against theirs that your DV is timely.   If it were me, I'd send a refusal to pay.  That's the same as a C&D but not all CAs know that fact.  If they attempt to collect after receiving the refusal, they've violated the FDCPA. 

 

Just a note:  If they call you after receiving the refusal, you'd have to show the call was an attempt to collect a debt.  The reason is because a CA is allowed to contact you once after receiving a C&D in order to inform you that they're either closing their files or filing suit.  Since you can't record a conversation, they'd have to say something in their message to indicate that they were calling to try to collect.

Makes sense.

 

Just to cover my rear... this is in fact past SOL.

 

If I say I refuse to pay, does that admit a debt and restart the SOL? (Bruno... the state is the same as yours.)

 

 

Could I word it simply,

 

Dear Scum Bag,

 

You have not sent me anything within 5 days of your first telephone contact

to me on XX/XX/2013.

 

I refuse to pay this alleged , non validated/verified, disputed debt.

 

I elect private contractual arbitration to handle any further disputes on this.

 

Sincerely,

 

Me

 

Since they will not leave a message that they are trying to collect and I cannot record as they will not

talk to me if I do, thought the above would state it as it is. And lay a mini groundwork for

a violation of no writing within 5 days?

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If I say I refuse to pay, does that admit a debt and restart the SOL? (Bruno... the state is the same as yours.)

 

I don't think it does.  as @BV80 says, there may be some states in which this starts the SOL, but I don't know of any that don't require a new written promise to pay.  

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@DonqIII

 

I don't see how it could restart the SOL.  You're not even admitting the debt is yours.  You're simply refusing to pay it.

 

Regarding your letter, I wouldn't tell them it's been 5 days since you heard from them.  You don't have to explain the law to them.  I would simply state that I dispute the alleged account, and I refuse to pay.

 

The 5 day initial communication period is your word against theirs. 

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@DonqIII

 

I don't see how it could restart the SOL.  You're not even admitting the debt is yours.  You're simply refusing to pay it.

 

Regarding your letter, I wouldn't tell them it's been 5 days since you heard from them.  You don't have to explain the law to them.  I would simply state that I dispute the alleged account, and I refuse to pay.

 

The 5 day initial communication period is your word against theirs. 

Thanks again.

 

Will do as suggested.

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If the "choice of law" is Delaware, then you might have a 3 yr SOL, not 4. Look and se if your state has a borrowing statute.

 

Telling a debt collector to pound salt does not reset the SOL. And if you were specific enough in writng to state your conentions, you might avaoid an account stated claim, too.

Yes, there is a statute in my state that says

  General rule.--The period of limitation applicable to a     claim accruing outside this Commonwealth shall be either that     provided or prescribed by the law of the place where the claim     accrued or by the law of this Commonwealth, whichever first bars     the claim.

And yes, on this one DE would be the choice.

 

Either way, it is definitely SOL because the last payment that was made by a

management company , not me, was in February 2009.

 

The history of this one was ....

 

OC sold to a well known, often mentioned JDB in 2009.

 

That JDB tried the collection end up until Jan of 2012. Their methods were to

send me monthly, or quarterly statements with offers to work with me.

 

They also would periodically call my landline with a robo message .

 

Last July, 2012 I got a call from a different JDB/CA and that call also

used the same robo message so I checked and found out they are

one in the same using different names.

 

On April 17 I got a call from the newest one on this.

 

I cannot find that they are a buyer of debt, but have read enough complaints

to know they will not follow any laws in their endeavors to collect.

 

They have gone after and sued on wrong accounts, and 12 year old debt.

They will call family and friends and talk about the debt.

The BBB said they had 263 complaints in the last 12 months.

They have been sued and had AGs breathing all over them

 

THEY DO NOT CARE.

 

My guess is that the JDB dumped this one onto them to try and collect

once the SOL ran. (And my ignoring their attempts)

 

I found no connection between this one and the JDB.

 

So.... my latest endevor... kind of loosely based on BV80's suggestion is

something like....

 

_______________________________________

 

XXXXXXX XXXXXXX XXXXXXXXX
 
XXX XXXXXXXXXX Blvd. Suite X
Greenville, SC 29615
 
mailing address
PO Box XXXXX
XXXXXXXXXX, SC XXXXX
 
X - XX - 2013
 
Phone number in lieu of account number  XXX-XXX- XXXX
 
Dear Sir or Madam,
 
 
I dispute this alleged account.

I refuse to pay this account.
 
I elect private contractual arbitration to handle any more disputes on this.
 
Sincerely,
 
Me
 
signature deliberately withheld

______________________________________________________

 

I am open to any and all suggestions.

 

Thanks

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@DonqIII

 

Considering the account is outside your state's SOL, I don't understand the need to elect arbitration because an SOL defense would be easy to prove.  If you want to try to bait them into a violation, electing arbitration might have the opposite effect because it might definitely scare them off. 

 

I'm not sure what Recovering Attorney meant by including specific writing that would help you avoid an account stated claim.  But since the account is outside the SOL, in your state, you don't have to worry about that.

 

I would like to know what he meant, though.  That's interesting.

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@DonqIII

 

Considering the account is outside your state's SOL, I don't understand the need to elect arbitration because an SOL defense would be easy to prove.  If you want to try to bait them into a violation, electing arbitration might have the opposite effect because it might definitely scare them off. 

 

I'm not sure what Recovering Attorney meant by including specific writing that would help you avoid an account stated claim.  But since the account is outside the SOL, in your state, you don't have to worry about that.

 

I would like to know what he meant, though.  That's interesting.

To be honest, I would be just as happy for them to go away.

 

I know the SOL will make a lawsuit go away, but if I don't have to go

there I would rather not.

 

I have family that works at the courthouse and believe it or not, family that

is a judge....

 

But not the kind of family that anyone wants to know you have issues.

 

So, if I can avoid that I would prefer....

 

Once, skirting around up there with a case was bad enough... LOL

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