Goody_Ouchless

Settle everything?

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How accurate are credit reports? I have heard that the date the item is scheduled to come off the report is seven (or seven and a half, depending on who you ask) years after the default. However, I have taken those dates, gone back in time, and find the same credit report showing the account in good standing at that time.

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By law, its 7-1/2 yrs from the date of first default (DOFD).  However, since creditors don't always report that date, the law kind of arrives at it sideways.  Because of that, the CRAs usually stop reporting at 7 years from charge off.

 

YMMV.

 

ETA:  I'm one of those lucky people using Windows 8.1 and IE 11...so, cut and paste doesn't work for me.  You can find the actual wording in the FCRA link at the top...Para. 605 ( c ) (1).

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I just did some forensic work on our bank records and find the news is as bad as expected. I was holding out hope on two fronts - one, that these were "zombie debts" that were payed off during a mortgage refinance and, two, that if legit, they were SOL.

 

The bank records show the accounts that are currently in collections. It appears my wife was using either using online payment or was calling in and paying with our debit card. The payments are somewhat sporadic and it is impossible to tell if they were "full scheduled" or if the accounts were in "good standing." 

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Given the dearth of records in these cases, I doubt anyone could prove or disprove when the accounts were last "current." Has anyone here had Midland and/or Cavalry show up in court with that documentation?

I have had OC's show up in court with reams of documentation. I don't care. I only care about admissible evidence. Keeping theirs out and getting mine in.

 

I don't know why I would handle a JDB with a truck load of documents any differently than an OC. In collections, a lack of admissible evidence is not going to assist the plaintiff in prevailing in their case by proving up all their required elements for the cause of action with admissible evidence. Not with a competent and engaged defendant.

 

All things being equal, the party with the least focus is likely to lose in litigation. Lacking a time machine I am unable to change the facts and the law is what it is. IMO if the facts and the law are against one they should seriously consider settlement early on. I don't care which side of the "v." caption they are listed on.

 

As far as I know an SOL still relies on admissible evidence. I do not know how I could use a lack of evidence to prove the SOL had not run. Admissible evidence. You either have it or you don't. If you don't have it you can hope some poor unwitting soul lets you bring in any old documents without opposition.

 

I would not want my sole defense in a collection suit to rely on a running of the SOL. I prefer to bring a tank to a knife fight.

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I understand and agree completely. That is why I have yet to see a case of a JDB prevailing against a top flight consumer affairs lawyer.

 

"Statute of limitations" were the first words out of the mouth of the first person I consulted when we started down this road almost 18 months ago. I simply find it interesting, and frustrating, that there is still so much ambiguity in this area.

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@Credator

 

I don't know why I would handle a JDB with a truck load of documents any differently than an OC. In collections, a lack of admissible evidence is not going to assist the plaintiff in prevailing in their case by proving up all their required elements for the cause of action with admissible evidence. Not with a competent and engaged defendant.

 

 

I agree.  In fact, depending upon one's court rulings and whether or not one is able to depose or question a witness at trial, it's much easier to show that a JDB's documents are not admissible evidence.

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I'm thinking in terms of the JDB having little or no evidence.

 

I only have experience with one lawsuit and in that case we had some sketchy documentation showing the account had been paid off once in the distant past. All the plaintiff could muster to counter this was two months worth of "statements" from the OC - these were charge-off balances that contained no account activity. We probably would have settled if he could have provided one piece of evidence that the account was used in the interim. It clearly was used, but he could not find a shred of evidence. He stuck to the argument that pays his rent: "Large, modern banks don't make these kinds of mistakes."

 

If we had gone to trial, I have no doubt he still had the winning argument.

 

This is why the "SOL Question" sticks around like a bad cold. It appears to be an area where the complete burden of proof is placed on the defendant.

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** Update to Howell **

IT IS ORDERED dismissing this case without prejudice for lack of prosecution.

 

Party Name     Relationship     Sex     Attorney
Midland Funding L L C       Plaintiff            Patricio Esquivel
Lisa Howell       Defendant      Female      Pro Per

Filing Date     Description     Docket Date     Filing Party
1/9/2015      042 - ME: Case Dismissed - Full      1/9/2015

http://www.superiorcourt.maricopa.gov/docket/CivilCourtCases/

I would expect a positive outcome for Howell. She has caused a Superior Court court judge decision to be reversed and Midland to pay her appeal costs. Not trivial IMHO.

 

Her case is ongoing and can be tracked here: http://www.superiorcourt.maricopa.gov/docket/CivilCourtCases/caseSearch.asp Put CV2012-001355 in the Case Number field.

 

It is highly improbable that Ms. Howell won at the AZ CoA level based on luck.

It is highly unlikely that Ms. Howell won without having her thinking straight.

 

I have no idea how the Internet has made it easier for collectors to successfully litigate against alleged debtors. It appears to be the opposite from my experience. The existence of this forum would tend to refute such a claim.

 

For those that do believe it is going to get easier, cheaper, and more profitable for JDB's to win lawsuits going foward, they should consider opening up an "easy money" JDB shop to take advantage of all the upcoming, "internet-spawned wannabe-lawyers". I am betting on the "spawn". ;-)

 

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