jimcemin

Can you help me regarding statue of limitations? Thanks.

Recommended Posts

My friend wants me to find out since she does not want to post it herself.


She stopped paying debts in 2005
She left the States to go to France in 2005
She got sued in 2005 by the landlord
She got sued in 2006 by collection agency
She moved back to the States in 2009


She occasionally receives letters to pay the landlord from the law firm and from various collection agencies. She never replied to the law firm but has sent the collection agencies letters telling them to stop bothering her since the statue of limitations has passed.

What is her statue of limitations situation from what I wrote above?

 

Edit: Requested by her.

Share this post


Link to post
Share on other sites

Your friend's problem is not the SOL for filing a lawsuit when it comes to the one CA and the landlord.  Any other debts she can send them a cease and desist letter if they ask for payment as they can no longer sue her or report those debts to the CRAs.

 

The landlord and the CA that did sue most likely have a default judgment since she did not show up for court.  The SOL of 4 years is irrelevant because she has already been sued.  The initial judgment is good for 10 years and can be renewed.  They may not renew it but if they do and domesticate it in FL where she lives now then they can put a lien on any property she owns, seize assets, levy bank accounts, and garnish wages.

Share this post


Link to post
Share on other sites

Thank you Clydesmom!

 

If you do not mind, I have some other questions.

 

- When does the 10 year start? When they sue or when she stopped making payments?

- Is it likely that they will renew the judgment? I mean I am asking for your experience here if you have any. I think the landlord's was for only one month rent but then it added up to like $4K-$5K I think. I can ask her if the amount is important for renewal reason.

- Would they need to go to FL to sue her/renew the judgement?

- So, basically she does not need to worry about SOL at all but need to worry about the judgments against her for another few years and more if they renew it. Correct?

 

These are the questions comes to my mind right now. I will tell her your answer and she may have more questions then. Thanks again Clydesmom!

Share this post


Link to post
Share on other sites

Thank you Clydesmom!

 

If you do not mind, I have some other questions.

 

- When does the 10 year start? When they sue or when she stopped making payments?

- Is it likely that they will renew the judgment? I mean I am asking for your experience here if you have any. I think the landlord's was for only one month rent but then it added up to like $4K-$5K I think. I can ask her if the amount is important for renewal reason.

- Would they need to go to FL to sue her/renew the judgement?

- So, basically she does not need to worry about SOL at all but need to worry about the judgments against her for another few years and more if they renew it. Correct?

 

These are the questions comes to my mind right now. I will tell her your answer and she may have more questions then. Thanks again Clydesmom!

 

For the judgment the 10 years starts the date the court entered the judgment against her.

 

There is NO way to predict if they will renew it or not.  I have seen creditors renew small judgments of only a couple thousand and let large judgments expire.  It is impossible to predict what they will do.

 

They do not need to sue her again in FL to collect.  The attorney only needs to file the California judgment with the court in Florida and under reciprocity FL will grant the judgment there automatically. Then they can attach property in FL and begin aggressive collection activity.  They would renew it in CA since it is from there.

 

Yes, she needs to worry about the judgments.  Any other debts can no longer be sued or reported on.

 

You are welcome.

Share this post


Link to post
Share on other sites

Thanks again!

 

She has nothing under her name, not even a car. She just has a store card and two credit cards and a bank account with little money. What I am trying to say is that I wonder if they know this and not renew. I mean can they check this or not? I have no idea.

 

She does want to settle down and eventually buy a house and a car but I am sure she will have to re-evaluate her plans. She has been trying to build a good credit and she actually has a good one now. I wonder what people do in this kind of situation? Maybe get a loan/mortgage under her name and put her dad/mom's name on the title/deed? Dunno.

Share this post


Link to post
Share on other sites

OK. I just talked to her and told her your answers. She is not thrilled:)

 

She wanted to know if the collection agency who sued her sold the account to another collection agency, would the initial judgment be still valid or be null?

 

She said she never received any letter from the collection agency that sued her. All different companies.

 

She also thanks you:)

Share this post


Link to post
Share on other sites

She wanted to know if the collection agency who sued her sold the account to another collection agency, would the initial judgment be still valid or be null?

 

She said she never received any letter from the collection agency that sued her. 

 

A collection agency cannot sue her.  Most likely it was a junk debt buyer.  The judgment remains valid.  The new owner who purchased the debt gets the right to enforce it. 

 

There is no requirement that the creditor or the junk debt buyer contact her at all before suing in California.  There are a couple of states that require a 30 day notice before filing suit in order for the consumer to have a right to cure but CA is not one of them.

 

 What I am trying to say is that I wonder if they know this and not renew. I mean can they check this or not? I have no idea.

 

They may check her credit before deciding and as a holder of a judgment they have a permissible purpose to do so.

 

 She does want to settle down and eventually buy a house and a car but I am sure she will have to re-evaluate her plans. She has been trying to build a good credit and she actually has a good one now. I wonder what people do in this kind of situation? Maybe get a loan/mortgage under her name and put her dad/mom's name on the title/deed? Dunno.

 

NO lender is going to underwrite a mortgage with a judgment that is unpaid.  They are also not going to underwrite a mortgage for someone whose name is not on the deed.  Most likely she has good credit at the moment because the web crawlers that search for public records are not looking in California they are only searching in her current state of resident court dockets.  The minute they domesticate that judgment in FL the web engines will find it and she will have a public record on her credit report(s) and her scores will nose dive straight down.

Share this post


Link to post
Share on other sites

I see. It looks like she needs to wait and see if they renew the judgment until she buys something or pay whatever her debt is to them.

 

I guess she will need to keep renting a house and lease a car.

 

Not fun.

 

Landlord until 2015. Collection agency until 2016. 

 

I wonder if there is a limit to renewal a judgment or can they renew it forever?

 

Clydesmom, I do not know if you are a lawyer or not but you should be :)

Share this post


Link to post
Share on other sites

Actually, if she's really keen on getting on with her life in the US, she can contact the current owner of the debt, see if they are willing to settle, and pay them.

 

That may not be what she wants to do. But because she didn't, immediately upon finding that there was a default judgment against her, move to have it vacated, the chances that she can do so now aren't great.

 

She basically has two choices: wait it out, and keep looking over her shoulder to see if they renew, or come after her, or to try to settle and have it behind her so she can move on. 

Share this post


Link to post
Share on other sites

Thanks very much to both of you!

 

She has one last question. The judgments are not shown in her credit history as of now. I believe it has been more than 7 years and that is the reason why it is not there.

What if they renew? Will it show in her credit report for another 7 years starting the day they renew (if they do) and disappear after 7 years again? Thanks! 

Share this post


Link to post
Share on other sites

Thanks very much to both of you!

 

She has one last question. The judgments are not shown in her credit history as of now. I believe it has been more than 7 years and that is the reason why it is not there.

What if they renew? Will it show in her credit report for another 7 years starting the day they renew (if they do) and disappear after 7 years again? Thanks! 

 

The judgments are not showing because the web crawling programs that search court dockets are only looking in her current state of residence not anywhere she lived before.  If the California address she lived at is not on her credit report they won't search the dockets there.  

Public records can report for the duration they are good for.  i.e. BK for 10 years.  Judgments for the SOL of 10 years on a CA one.  If they renew it AND domesticate it in FL it will appear on her CR faster than she can blink.

 

Another issue is that often a creditor will have the names of those they have judgments against flagged in the credit reporting agencies files.  When the consumer apps for a mortgage the creditor gets a notification and then can move to collect.  They do this because they KNOW if that judgment is reporting she cannot get a mortgage until she pays it off.  THIS is their leverage.

  • Like 2

Share this post


Link to post
Share on other sites

Hello again,

 

Friend asks if she buys a house under her husband's name, would/could they still come after her/him/the house since they are married? Thanks!

Share this post


Link to post
Share on other sites

Hello again,

 

Friend asks if she buys a house under her husband's name, would/could they still come after her/him/the house since they are married? Thanks!

 

I have yet to see a mortgage under writer that will do a mortgage for a married couple without both spouses being on the note and the deed.  However, the short answer is yes, there are situations where they could come after the house as marital property which she has an interest in and therefore is an asset.

Share this post


Link to post
Share on other sites

In a non-judicial foreclosure state, I have a note for my home loan with one spouse's signature on it and two spouses on the security/deed of trust. This occurred because it was what I wanted, I asked for it, and if the loan was denied I would have rented, paid cash, or financed outside of traditional banking.

 

One-signature-notes may be much more likely to occur in states that bar deficiency when a home that was repossessed under foreclosure has a shortfall to pay off the loan due to more loan than value.

 

It has happened in the past does it today? IDK

 

Does it happen in deficiency states? IDK If I was the mortgagee I would likely want two signatures on the note if in a deficiency state.

 

I find I rarely get what I don't ask for.

Share this post


Link to post
Share on other sites

The judgments are not showing because the web crawling programs that search court dockets are only looking in her current state of residence not anywhere she lived before.  If the California address she lived at is not on her credit report they won't search the dockets there.  

Public records can report for the duration they are good for.  i.e. BK for 10 years.  Judgments for the SOL of 10 years on a CA one.  If they renew it AND domesticate it in FL it will appear on her CR faster than she can blink.

 

Another issue is that often a creditor will have the names of those they have judgments against flagged in the credit reporting agencies files.  When the consumer apps for a mortgage the creditor gets a notification and then can move to collect.  They do this because they KNOW if that judgment is reporting she cannot get a mortgage until she pays it off.  THIS is their leverage.

 

@Clydesmom

so ive a qstion, i moved btn 2-3 states back in the 08 when i few accts of mine went deliquent.... they are all reaching 7 year sol now but i was thinking all these days my CR is not showing any judgements so may be there is no sue case ever on me... but ur state logic got me nervous... how can i find out if there is any on my name in any court????

Share this post


Link to post
Share on other sites

My friend wants me to find out since she does not want to post it herself.

She stopped paying debts in 2005

She left the States to go to France in 2005

She got sued in 2005 by the landlord

She got sued in 2006 by collection agency

She moved back to the States in 2009

She occasionally receives letters to pay the landlord from the law firm and from various collection agencies. She never replied to the law firm but has sent the collection agencies letters telling them to stop bothering her since the statue of limitations has passed.

What is her statue of limitations situation from what I wrote above?

 

Edit: Requested by her.

 

If she was living abroad when the lawsuits were filed, she can probably get them tossed for lack of jurisdiction.  I seriously doubt either of those cases properly served her internationally so as to provide the court with personal jurisdiction over her.   A Judgment without jurisdiction can be overturned at any time.  I'd call an attorney and try to overturn those judgments, which she should be able to. 

 

As for the SOL, most of the time the Statute of Limitations is tolled (stopped) when you are not living there any longer.  It starts up again when she moved back but the 4 years she spent abroad would've likely stopped the Statute of Limitations.   So 2005 - 2009 would not count, and her current Statute of Limitations would be 2009 - presents + any time before she left in 2005.  Basically, 5 years and change is where it's likely at now. 

Share this post


Link to post
Share on other sites

First, I would have her check the court where she lived when she incurred the debts and find out if there are any judgments against her.  Often the CAs will threaten to sue but never do.  Then the consumer walks around thinking that they were sued.

 

Next, she can simply file a Motion to Vacate based on improper service.  Some may allow this, others only give you a short time after the judgment to file such a motion.

 

Contrary to an above post, only a BK7 or an unpaid tax lien can stay on a credit report for more than 7 yrs.  Next, not all states allow for renewal of judgments.  This is why she needs to know whether the judgments are real and whether they have been renewed or not.

 

Also, in legal cases, you never volunteer information that the opposing side doesn't know.  For the sake of argument, let's say that there is no judgment and these are just bottom feeding JDBs.  She can send the ol FOAD letter citing expiration of the SOL.  Let them prove she was out of the country.  :p

  • Like 1

Share this post


Link to post
Share on other sites

 

Next, she can simply file a Motion to Vacate based on improper service.  Some may allow this, others only give you a short time after the judgment to file such a motion.

 

 

Every state in the country allows you to file a motion to vacate, at any time, provided the Judgment is Void.  Motions to vacate only have time limitations depending on the state when they are not Void.  That's one thing every state happens to be in agreement on.  For example, in Florida there is a 1 year limitation for the first 3 reasons listed below, but reason #4 (void judgment), has no time limitation attached to it.

 

Fla. R. Civ. P. 1.540. Relief from Judgment, Decrees or Orders

***

(B) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. --On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing;

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) that the judgment or decree is void; or

(5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.

The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken, except that there shall be no time limit for motions based on fraudulent financial affidavits in marital cases. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.