Not being sued but is there any way to avoid it?

[secondchances]

I've been working on my fiance's credit score since I've long cleaned up mine and I'm a bit worried about one account that he has on there from an old auto loan/repo date of last payment in 03/2009.  We are in Georgia and the SOL is 6 years.  He is not worried as he said he was served while he was living with his sister and her sister in law was visiting and told the police that he did not live there because she didn't know any better.  I guess this was in 2010 this occurred.  The account is showing charged off as of now.  

 

Will trying to rebuild his credit alert them to come after?  Is it strange that they have not sold the account to a collector as of yet?  Is there anything that I should do like opt out, have his address deleted, employer info deleted?  I am thinking of adding his phone number to his credit report to lure someone to violate the TCPA or FDCPA just in case since I've won a TCPA case before and I know how this works.  Or should we contact them and try to work it out before something happens?   This last thing seems like the right thing to do but I'm not sure how that would work out.  

 

Back Story:  Like so many in the construction Industry, he was laid off and couldn't find work.  He was out of work for about 4 to 5 years except for temp and odd jobs.  He filed bankruptcy in 2007.  

 

Thanks in advance for you advice!  I know is sounds crappy to want to avoid paying back the debt but he has to be on stable ground before that occurs.  

[Savoir]

If he was served in 2010 ........... I'd check the district court in which he was resident at the time to determine if a judgment was issued.

He acknowledges service but has no knowledge of what might have occurred afterward? Could be a default there just building interest.

 

What amount was the alleged original debt?

 

Luring TCPA or FDCPA violations can have negative aspects to it.

[Clydesmom]

There is another problem even if they never served him.  The case was filed in 2010.  Once filed that tolls (stops) the SOL from running.  It does not start again until they withdraw the case or the court dismisses it.

 

You need to check the GA court dockets and find out what happened.  2016 is a LONG way away and if the account hasn't been sold then defending against an OC is much harder than a JDB.  You want to know what can of worms you might be opening by doing credit repair now.

[secondchances]

If he was served in 2010 ........... I'd check the district court in which he was resident at the time to determine if a judgment was issued.

He acknowledges service but has no knowledge of what might have occurred afterward? Could be a default there just building interest.

 

What amount was the alleged original debt?

 

Luring TCPA or FDCPA violations can have negative aspects to it.  

 

The balance that is showing charged off is 7439.  Not sure how they could prove that they were lured.  If they call his phone without consent, they call his phone without consent.  I own that number and I know for a fact I never gave consent.  I just did a google search for court docs and couldn't find any.  I just filed suit against a CA so I was able to search mine.  I don't think they have a judgement because wouldn't that show up on the credit report?  

 

Thanks! 

[secondchances]

Thanks Savior!  I didn't think about that at all!  Any idea how to go about finding those docs if it doesn't pull up on line?  

 

Would a credit freeze offer some protection?   If so, I'm going to do that now.  

[secondchances]

I meant to thank Clydesmom for that last tip.  Oops!  

[Savoir]

Well .......... chances are that if the judgment doesn't show on his credit report .......... it hasn't happened.  Whew!!

Don't know about a freeze as an effort to protect ..... I don't think that applies to pre-existing creditors but, I'm not sure.

 

As Clydesmom stated ......... you need to check the GA court records......... don't think that Googling it would show anything.

 

Also check the time lines involved regarding 'lack of prosecution' in GA.

If he WAS served; it might have already been dismissed by the court.

 

Check the court dockets in the district in which he resided at the time he was allegedly served ........... IF GA has online access.

[secondchances]

Thanks Savior!  I will go to the court house and search next week.  I just researched the freeze and it will not limit access to OC but I'm not sure about JDB.  It might however prevent a sale to a JDB if the JDB can't report an account after purchasing it.  

[secondchances]

So what about contacting them to settle assuming they will eventually sue?  I do believe the credit repair will open a can of worms.  He only last week was able to open a checking account so any skip tracing to locate him to see what he is up to financially would have proved fruitless to them up until recently.  

 

All of his credit reports have his new updated address here...  That concerns me too.  

[Clydesmom]

GA does not keep Magistrate Court documents or docket on line so you will have to go to the courthouse where the case was filed.

 

Well .......... chances are that if the judgment doesn't show on his credit report .......... it hasn't happened.  Whew!!

 

Not exactly.  The courts do not report to the CRAs however, if the CRA uses a docket search service THAT is how they find the judgments.  It all depends on whether the search service connected two or more of his identifiers to the judgment as his to get it on the correct CR.  In GA Equifax is the CRA that typically finds GA judgments and liens for credit reports.  The other two not so much.  

 

The ONLY way to be certain is to search the court dockets for his name for cases and look up the disposition of the case.  While reporting on a CR might tell you if there is a judgment not seeing doesn't automatically mean there isn't one.  DO NOT assume!

Would a credit freeze offer some protection?   If so, I'm going to do that now.  

 

Not a bit because the OC has a business relationship with him and he is in default they have a permissible purpose to pull.  A freeze only prevents new creditors from pulling.

 

So what about contacting them to settle assuming they will eventually sue?  I do believe the credit repair will open a can of worms.  He only last week was able to open a checking account so any skip tracing to locate him to see what he is up to financially would have proved fruitless to them up until recently.  

 

All of his credit reports have his new updated address here...  That concerns me too.  

 

Since it is well within the SOL for lawsuit and the OC still has it you are going to have to have 2/3rds of the debt or more to get a settlement they are likely to accept.  

 

Yes, updating his CR with address and phone numbers was a giant red flag.  There are "lists" the creditors, JDBs, and CAs subscribe to with the CRAs for debtors.  Anytime someone on the list gets new credit, updates an address, phone number or applies for certain credit like a mortgage they get notified.  Most assuredly they have been notified of his new address and at some point in the future you can bet they will come knocking for that money.  The more information you gather now the better prepared you will be if that happens before you can negotiate a settlement.

 

[Savoir]

 

Not exactly.  The courts do not report to the CRAs however, if the CRA uses a docket search service THAT is how they find the judgments.  It all depends on whether the search service connected two or more of his identifiers to the judgment as his to get it on the correct CR.  In GA Equifax is the CRA that typically finds GA judgments and liens for credit reports.  The other two not so much.  

 

The ONLY way to be certain is to search the court dockets for his name for cases and look up the disposition of the case.  While reporting on a CR might tell you if there is a judgment not seeing doesn't automatically mean there isn't one.  DO NOT assume!

 

 

Wasn't assuming anything ........ I believe I made it pretty clear that the OP should check the court dockets to make sure that a judgment hadn't been issued.

Glad it wasn't on his credit report though.

 

Thanks for the explanation of the process, however.

 

On another note ......... I believe that the OP was asking what would happen IF she updated his credit report ..... not that she had.

It would appear that the checking account application updated the report.

[TomnTex]

You could also look into using Whychats method to get rid of it being past two years. Read both links on his web site. It's worked for many others. You mentioned BK, see if that erased the debt. You did not go into much detail on it.

[Savoir]

As @TomnTex mentioned; if this alleged debt was included in the BK filing .......... it's all moot.

[secondchances]

You could also look into using Whychats method to get rid of it being past two years. Read both links on his web site. It's worked for many others. You mentioned BK, see if that erased the debt. You did not go into much detail on it.

Just read whychats method and I'm impressed. thanks for sharing that!

The auto was 100% not included in the bankruptcy. He wanted to try and keep it.

Whychat says to opt out and delete addresses. How can you get current addresses removed? And what is the point of deleting the old addresses? Anyone know?

[secondchances]

Going to shower and off to the courthouse to see what awaits.... wish us luck!  

[secondchances]

Just got back and the case was dismissed without prejudice in April 2012.  I did get a copy of the complaint and they seem to have their ducks in a row so to speak.  There are copies of the contract, the title app, Notice of Plan to sell Property, two explanation of deficiency balance, one before and after the sale, affidavit for repossessed vehicle and a copy of the sales receipt of the private sell that was sent certified.  The only thing that I can think of that might help him in this besides keeping him under the radar is that he is a co-borrower on the account.  The certified letter was sent to his ex wife at his address however it appears he signed for it. She lives in Florida.  Also, the date of last payment was reported as 3/2009 as well as the DLA.  His last payment would have been January 2009 or before.  Doesn't the SOL clock start at that date and not the DLA?  Date of first major delinquency is 8/2007.  Then he filed bankruptcy, kept the truck out of it however.  He is also not completely judgement proof but doesn't own anything in his name.  

 

I had already managed to delete the address where he lived at the time when all this went down so that is gone.  The place they lived where they purchased the vehicle may still be on there.  Is there anything else that anyone can think of that I should or shouldn't do concerning this debt?  They are charging 14.95% interest so that balance is at 11k now.  Thanks so much!  

[secondchances]

paranoia will destroy ya!  (Thanks Ozzy!)  

 

I just got this information from whychat that might be useful and the only thing that we have in our defense if they should file again.  Apparently the repo and sale of vehicle voids the original contract and starts a 4 year SOL from date of sale or so it was in this case:  

 

EXCERPTS FROM CASE LAW FORD MOTOR CREDIT COMPANY,     Plaintiff-Respondent, v. GILBERTO ARCE,     Defendant-Appellant.         Argued February 4, 2002 - Decided February 26, 2002         Before Judges Havey, Coburn and Weissbard.         On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. DC-9718-00.               Defendant Gilberto Arce appeals from an order for summary judgment in favor of plaintiff Ford Motor Credit Company (FMC) awarding it $5,905.96 plus costs, representing a deficiency owed by defendant under a retail installment contract executed by him to finance the purchase of a used car. The sole issue is whether FMC's suit is barred by the four-year statute of limitations under Article 2 of the Uniform Commercial Code, N.J.S.A. 12A:2- 725 (§ 2-725). Following the Supreme Court's holding in Assocs. Discount Corp. v. Palmer, 47 N.J. 183 (1966), we conclude that the action is barred and accordingly reverse.          Article 2 of the Uniform Commercial Code (U.C.C.) applies to "transactions in goods." N.J.S.A. 12A:2-102. Article 2's statute of limitations, § 2-725(1), provides that "[a]n action for breach of any contract for [the] sale [of goods] must be commenced within four years after the cause of action has accrued." A cause of action accrues "when the breach occurs . . . ." § 2-725(2).See footnote 11     The Court added:         a deficiency action must be considered more closely related to the sales aspect of a combination sales-security agreement rather than to its security aspect and be controlled by the four year limitation in . . . § 2- 725.See footnote 22         [id. at 187-88.] The Palmer decision has been cited with approval by courts in other jurisdictions. See First Nat'l Bank v. Chase, 887 P.2d 1250, 1251-53 (N.M. 1994); Scott v. Ford Motor Credit Co., 691 A.2d 1320, 1323-26 (Md. 1997). In our view, Palmer is dispositive.           We hold that the four-year statute of limitations under § 2- 725 applies in this case. Accordingly, FMC's deficiency suit is statutorily barred. We therefore reverse the judgment in favor FMC's favor.

                            SUPERIOR COURT OF NEW JERSEY                             APPELLATE DIVISION                             A-3166-00T1

 

Also, with this information, can't I counter sue with a FDCPA violation against the law firm collection on behalf of the OC for collection on a time barred debt?