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Is my SOL expired? Out of the country


sawalke4
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In late 2009 I lost my job and left the USA. I left behind a CC debt of $2500. I moved to Europe to find work and have lived there for almost 4 years. I moved back to FL two months ago, and got a call from a Collection Agency stating that they had purchased my account, and I now owe them over $6000 in late fees and interest. I did not give them any information, however they did state my SSN, my old address, and that the last payment made to the account was 8/2009. There is no info on my credit report that shows I moved out of the State. The last address on my credit report shows my friend's address, since I filed a change of address form to his address and was living there for a few months before I moved to Europe so I could get my mail. He would then collect all my mail every month and mail it to me in Europe.  It has been 4 years and one month since the record of last payment on the original CC account. I have just opened a bank account with my new current address so I assume this will go on my credit report as a current address. Should I wait for them to send me somthing in writing? Should I send them a DV letter with my current address?

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You need to read your state laws.  Usually, leaving your state tolls the SOL (stops the SOL clock from running).  It's possible that however much time was left on the SOL when you left the country was still left on the SOL when you returned.

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Yes i lived in FL before Europe. The date of last payment was 08/2009 and I moved to Europe in 1/2010. However my credit report shows my friend's address as being my current address for the whole time. it says XXX address: First Reported 09/2009 Last Reported 09/04/2013. Does the Debt collector need to prove I was away? If I request him to prove the SOL is still current on my account?

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@sawalke4

 

95.051 When limitations tolled.

(1) The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:

 

(a) Absence from the state of the person to be sued.
 
However, they may not know you left the country.  Could they find out?  I don't know.
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Also, more info i forgot to mention. When I was away, I kept my Wells fargo Checking and credit card open. I made purchases, used paypal to deposit into the checking account and then paid off my card like that. The card only had a $1000 limit, but my credit report shows that I have always made curent payments on it. I dont know if this is relevant or not. My friend would get my Wells fargo statements and other mail at his address and send them to me. Again, my credit report shows no indication that I was away. I certainly am not going to let the Colletion agent know. Now that I changed my address to my current one, this will show on my credit report, and Im sure the CA will mail me a settelement. I am thinking of two courses of action. 1) Send a DV letter and in this request to prove that the SOL is valid. if they dont prove it, send a Cease and Desist. Or 2) Send a Cease and Desist based on assumtion that they dont know I was away and hopefully they will abide. What do you recommend?

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I would say it's SOL, there's absolutely no way a JDB will be able to prove you move to Europe and come back, and how much time you lived there that tolled the SOL, they can't prove they even own a debt so imagine proving all that. If they sue just claim SOL as any other FL resident, if they come up with something make it prove it, you just went to Europe on a cruise or something, I imagine you went on a hippy trip to know better the old world as my sister did many moons ago, she went as far as working on a kibut, point is there's no way they will be able to prove that.

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So Should I wait until they send me something in writing when they get wind of my new address, and then send s DV letter? Or should I send cease and desist letter. Also he date of the last payment on the Credit Card is 8/2009, however the date of first delinquency on the CC and debt collectors report is 10/2009. If the SOL is expired, did it expire in August or next month in November?

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I would DV to protect that right and then see if they take you to court first. BTW, they will probably send the 5 day letter to your old address so you need to do the DV ASAP giving them your new address. That will hold the off for 30 days.

As for SOL, I would say wait until they decide to sue you and then bring that up and see what happens. They might simply decide to walk away if they have no proof that you were outside of the USA. It sounds like that would be very hard to prove.

Also, if you have a small lump sum to settle, you might offer that as a way to get them out of your life. They are claiming $6000 for a debt I would be surprised if they paid $100 for. You could probably settle for $600 - $1200 if you are willing to deal with them.

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What bank was the original cc with? if it's Delaware choice of law it might well be 3 years, and anyways also not a case law you can argue it's 4 years for cc SOL, there is case law about that also only applicable to specific counties I doubt a judge will not take them outside of that county.

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Don't talk about SOL in the DV letter. You don't want to tip your hand too early. Once the SOL is reached, if they reply to DV, you can send a C&D and note the SOL has been reached. Let them prove to you (or the court) that the SOL was tolled. Never give more information than is necessary for the time.

If it comes to court, you use SOL as an affirmative defense and prove the SOL was reached. If they claim it was tolled, then they have to prove why it was tolled, and do so without your assistance. In this situation, they probably have no idea that you were physically outside of the USA. Especially if mail was sent to a USA address and no one said anything to the creditors on the phone.

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Send a simple DV, that's it, SOL for a Chase cc is 3 years the coice of law for Chase is Delaware, and there is case law on that, so it's SOL period. You do not have to tell them what the law says they should know it, if they don't and violate anything you sue them so they learn.

 

Midland

address

acc xx

 

cc Me

 

Dear Sir:

 

I'm in receipt of your last letter dated xx day, I dispute the validity of this alleged debt, please provide debt validation and name and address of alleged original creditor, or any judgment if it exists. Please also provide proof of assignment as outlined in Florida statues and the Uniform Commercial Code.

 

Sincerely yours

me

 

 

Then if they send you something back same letter and change it to:

 

I refuse to pay for this alleged debt until I receive proof of assignment as outlined in Florida statues and the uniform commercial code.

 

If they don't send nothing, just add Since I have not receive nothing in written x days after my last later ...

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The day you left the country the SOL stopped, the day you returned it continued to accrue. Employment records could show you lived out side the U.S. If you went to Europe you would need a pass port, they can find that info. You say you used a bank in the U.S. while gone, if they get those bank records through discovery they can figure it out.

 

Also if you were gone 4 years you could have disrupted your continuity of residence in the U.S. Did you file your returning resident papers?

 

A permanent resident card is not a valid entry document when the resident is abroad for 365 days or longer.

Did you apply for a U.S. Citizenship and Immigration Services advanced parole document before leaving?

 

The reason i tell you this is if immigration wants to be asses about it you could be deported,,,you would have to prove to an immigration judge that you did not abandon you U.S. residence.

 

At this point in time you would be considered a dual citizen, Did you file a section 911 foreign earned income exclusion and the foreign tax credit? When you file you next tax return the IRS will want to know why you did not file for those four years. As a United States citizen, you may be required to report your interest in certain foreign financial accounts on Form TD F 90-22.1 if you used any foreign banks while you were gone.

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