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floridainneed

3rd Attempt by CA to collect on Repossessed RV

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Another Law Firm, Weltman, Weinberg & Reis is attempting to collect on a repossessed RV with the original creditor being US Bank.  This is the 3rd attempt to collect on the debt, dating back to June, 2009.  The debt has been charged off per my credit report.  The type of contract was a "Retail Installment Sale Contract." I live in California and I believe the SOL is 4 years from the last payment, which was June, 2008.  I have followed the Debt Validation strategy for the previous two attempts and the CA's ceased attempts to collect.  For the current CA, I sent the initial DV letter and they acknowledged receipt of it and sent to me a letter (via non certified mail), despite the letter demanding that all future correspondence be made via certified mail.  This letter only contained a copy of the Retail Installment Sale Contract and nothing else.  There was no referencing to the SOL or any other references as are asked for in the 1st DV letter nor was there any required action on my part.

 

I am tempted to send my 2nd DV letter indicating that it has been 30 days since my first letter was received and there has been no correspondence via Certified Mail as the letter demanded.  How should I finally address the SOL matter.  Have the SOLs on this particular contract expired? And if so, at what point and what correspondence do I send them to let them know that this is now Zombie Debt? 

 

What is the best course of action?

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You don't want them sending you letters CMRRR, you NEED to send yours to them CMRRR to show that they received it. You also have a four year Federal UCC SOL that you might be able to use.

 

In your second dispute, tell them that the matter is still in dispute and that they are attempting to collect on a time barred debt. Thats what I did when I had my RV repoed! They still sniff around thinking they are going to collect $30 +K.

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They don't have to use CMRRR just because you say so.

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For the current CA, I sent the initial DV letter and they acknowledged receipt of it and sent to me a letter (via non certified mail), despite the letter demanding that all future correspondence be made via certified mail.  This letter only contained a copy of the Retail Installment Sale Contract and nothing else.  There was no referencing to the SOL or any other references as are asked for in the 1st DV letter nor was there any required action on my part.

 

You can demand they sky write it and they don't have to do it.  There is NOTHING in the FDCPA that requires they only use certified mail if you demand it.

 

Consumers often misunderstand what is validation for communication directly with them.  The installment contract is sufficient for them dealing with YOU.  If they wanted to sue the courts would require more but they are free to ignore your requests for additional information.  The reality is what the FDCPA states is that if they do not validate the debt they must cease collection activities.  It does not say that they must comply with all your requests and demands.

 

 

 

I am tempted to send my 2nd DV letter indicating that it has been 30 days since my first letter was received and there has been no correspondence via Certified Mail as the letter demanded.  How should I finally address the SOL matter.  Have the SOLs on this particular contract expired? And if so, at what point and what correspondence do I send them to let them know that this is now Zombie Debt? 

 

What is the best course of action?

 

No need to send another DV letter they did when they sent your retail installment contract.  It is your debt.

 

The SOL for LAWSUIT has expired according to CA law of 4 years on written agreements.  If they do try to sue you have to raise the SOL as a defense it does not prevent them from filing the suit.  It is only a valid defense for you at this point.

 

This is NOT zombie debt.  Zombie debt is debt that is beyond the SOL for lawsuit AND reporting on your credit report.  The SOL time to report on your credit report is 7 years 6 months from the date of default.  So if you stopped paying in June 2008 then it can remain on your credit report LEGALLY until 12/2015.  After that it becomes zombie debt.

 

Even once it is zombie debt it does not prohibit a collection agency from asking you to pay it.  You still owe the money but their options at that point are only to ask you to pay it.  They can sue but you have a valid defense and they cannot report it to the CRAs.   Your option if contacted about the debt after 2015 is to send a letter saying "no and don't ever contact me again."  

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This is NOT zombie debt.  Zombie debt is debt that is beyond the SOL for lawsuit AND reporting on your credit report.  The SOL time to report on your credit report is 7 years 6 months from the date of default.  So if you stopped paying in June 2008 then it can remain on your credit report LEGALLY until 12/2015.  After that it becomes zombie debt.

Since zombie debt is not defined in any dictionary, my definition differs from yours.  I think zombie debt happens when the SOL passes.  

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Since zombie debt is not defined in any dictionary, my definition differs from yours.  I think zombie debt happens when the SOL passes.  

 

WHICH SOL?  There are two.

 

MSN Money defines it as "very old debt" which is vague.  

Consumer attorneys define it as " a debt that never dies -- it just keeps coming back in many different forms with different owners, and you can't kill it."

 

Investopedia:  "A type of bad debt that is so old a person may have forgotten he or she owed it in the first place. The debt has likely been given up on by the company to which it was owed."

 

We don't have to agree but the reality is that most consumers fail to understand there are TWO statute of limitations in play;  the one for lawsuit and the one on how long it can be reported on their credit report.  

 

For the OP the debt can no longer be sued for but there is a significant amount of time that it can still legally remain on their credit report.  While other collection agencies gave up, it can remain on their credit report for a few more years.  Since the SOL for suit has expired then a FOAD letter is at their disposal to tell new collection agencies to pound sand.  However, they can legally keep it on their CR until 12/2015.

AFTER 2015 to me it would be REALLY old debt and attempting to revive it would be like reanimating a dead person to a zombie.  Right now the debt is still "alive" but since they cannot sue it is on life support!   ::drowning::

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I think everyone has a differing opinion on the definition of what a Zombie debt is. There are 2 SOLs. One is the legal SOL and the other is the reporting SOL. That is probably why I do not use the term Zombie debt.

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We don't have to agree but the reality is that most consumers fail to understand there are TWO statute of limitations in play;  the one for lawsuit and the one on how long it can be reported on their credit report.  

 

True, just giving you my opinion.  I agree there are two SOLs, but if you can't legally sue, in my book it's zombie.  Investopedia - lots of people don't remember yesterday let alone 4 years past the SOL.  lol  

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It has also been thrown about that the DOFD on a repo is when the deficiency payment is made. That is suppose to be your true SOL, so says some.

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Since zombie debt is not defined in any dictionary, my definition differs from yours.  I think zombie debt happens when the SOL passes.  

and for the record it is her dictionary.

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I would check your paperwork good then send them a cease all communications letter. They have no reason to contact you after that if they do you can sue them. also make the issue glaring by formally stating the date of first default is this date which is outside of the statute of limitations for any debt, I believe also california is an anti deficiency state.

 

As this is my 3000th post I would like to thank everyone for providing fun and challenging mental excercise for the past 3and a half years. Without CIC I would have went insane and would have never taken a case to the Supreme Court of California. I have to say when I total up the time I have spent on here, that it was time well spent.

 

Because really if we are on here we are not bying big screens on Credit Cards :) Just saying I highly respect all the members here and welcome spirited discussion on any topics but you must come correct, you must not just point out where someone is wrong , you have to show the right way. If you don't know the right way then your argument falls. So I know we must keep it civil and we must always be vigilant for new members who desperately need our help.

 

Further note that we need to be doing things better than P's slick counsel.

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I would suggest that any debt for which the affirmative defense of "laches" can apply could be considered "zombie debt."

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I would suggest that any debt for which the affirmative defense of "laches" can apply could be considered "zombie debt."

 

Laches is an equitable defense though, could really never apply to debts.

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Laches is an equitable defense though, could really never apply to debts.

 

Not true. In a suit not based in contract (unjust enrichment, money lent, etc) which are in and of themselves suits in equity, equitable defenses are applicable. 

 

For example:

 

See O'Brien v. Allstate Ins. Co., Civil Action No. 5:10-CV-40, 2010 WL 5204925, at *5 (N.D. W. Va. Dec. 20, 2010) (stating "[a]n unjust enrichment claim is equitable in nature. Therefore, the principle of laches, rather than a statute of limitations, governs whether a claim may be brought[,]" citing Absure, Inc. v. Huffman, 584 S.E.2d 507, 511 (W. Va. 2003)).

 

 

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Good point, didn't think of that Nascar. Served a lot of summonses that were debt related and don't recall seeing a equitable cause of action just because not as popular.

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California has determined that not to be the case. See Massey-Ferguson Credit Corp. v. Casaulong62 Cal.App.3d 1024 (1976).

 

Thanks NASCAR. That's why I posted it. I've seen on other boards where they claimed as such. Just wanted the truth out there......you'r the man....lol.

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