MSWolverine

Received "debt verification" papers after said last payment by Midland:Can they sue me?

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Hello Everyone,

 

You all helped so much the last time I was having problems, I'm hoping you all can help me again with this question:

 

In January of this year I received a letter from a law firm representing Midland about a debt. I sent them a debt verification letter in the allotted time I had and after receiving two letters in the beginning of March saying they had received my letter and basically they were trying to contact Midland for verification, I have heard nothing else from them.

 

Just today I received a manila envelope in the mail from the law firm with papers they say verifies the debt ( I'm still going through them but there are no copies of original bill statements or anything). The thing is, when I got the original letter in January, I looked on my credit report to see if it was being reported and it said the last reported payment was May of 2008. Since it's now almost November, doesn't that mean the SOL is now up? Can they still come after me legally? 

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Nope debt is done. If they do file against you you will need to raise the sol defence, and file a counter suit for the FDCPA violation. You could send them a cease and desist letter now if your sure your last payment was more than 6 years if you just want them to go away.

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Nope debt is done. If they do file against you you will need to raise the sol defence, and file a counter suit for the FDCPA violation. You could send them a cease and desist letter now if your sure your last payment was more than 6 years if you just want them to go away.

Okay, thank you SO MUCH! I'm going to go through my credit report again and double check the date ( although I'm 98% sure about the date) to be sure. 

 

If I do go ahead with a cease and desist ( which sounds like the best option right now because I just can't handle the whole court process again), is there a particular...format I should go with as far as what the letter says? Do I need to get it notarized?  

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@MSWolverine

 

If I do go ahead with a cease and desist ( which sounds like the best option right now because I just can't handle the whole court process again),

 

 

A C&D doesn't stop a lawsuit against you.  Chances are that they won't sue, but as shellie98 said, you'd have the SOL defense and an FDCPA counterclaim.

 

The C&D to prevent them from collecting by phone or letter again.   They could contact you once more to let you know of their intent, but that letter could not include an attempt to collect.

 

As long as you're sure the debt is time-barred, I'd simply tell them to cease and desist all collection efforts.  It does not have to be notarized.

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Well I looked at another credit report and by matching the account number on the papers sent to me, apparently the last payment date was 10/15/2008 ( I am seriously positive the last time I looked at the report there was an earlier date, but maybe I mistakenly was looking at the date reported or something or I just that much of an idiot). Now of course that makes sense why they waited to send me the papers but seeing as it's past the 15th, SOL is still up, so I do send the C&D or is that just not an option anymore? 

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First off, you really cannot go by credit reports because many JDBs will try to reage accounts just to keep them there longer or make it look like the SOL has not run out. If you really want to be sure, see if you can get from your bank the statements around the time of last payment and possibly even a copy of the checks. That will be more definitive proof in court than a credit report.

If you are absolutely sure the SOL has expired, you can send a C&D letter including the fact that you know the SOL has expired. Usually, that will be enough to get them to understand that you know what you are doing and move on. It does not stop them from suing you but it will give you a defense and FDCPA counterclaim. Realize though that once you use SOL in court, that is a trigger event for a 1099C.

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First off, you really cannot go by credit reports because many JDBs will try to reage accounts just to keep them there longer or make it look like the SOL has not run out. If you really want to be sure, see if you can get from your bank the statements around the time of last payment and possibly even a copy of the checks. That will be more definitive proof in court than a credit report.

If you are absolutely sure the SOL has expired, you can send a C&D letter including the fact that you know the SOL has expired. Usually, that will be enough to get them to understand that you know what you are doing and move on. It does not stop them from suing you but it will give you a defense and FDCPA counterclaim. Realize though that once you use SOL in court, that is a trigger event for a 1099C.

Oh well that might explain me being confused on the date. The thing is I don't have any way to get bank statements or anything though... 

 

I just do not believe that the SOL hasn't expired so I'll have to think of something so I can send a C&D as soon as possible. I did not know about the 1099C though so thank you very much for telling me about that.  I'm researching that right now as I don't know very much about that. 

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If your last payment was 10/15/08, and your sol is 6 years, then the sol is NOT passed until 11/1514.

It is 6 years from date of default. You were not in default until you missed a payment, not made one.

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@MSWolverine

 

@shellieh98 made an interesting point.  Were you already in default when you made the last payment?  Or was the account still current when you made that payment?

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If your last payment was 10/15/08, and your sol is 6 years, then the sol is NOT passed until 11/1514.

It is 6 years from date of default. You were not in default until you missed a payment, not made one.

Oh goodness.... Well I found something that is hopefully helpful.... I printed out one of the credit reports ( because you get the 3 for free once a year) when I was having my last nightmare in January of this year. I just found it among my papers and this one says the account was considered 30 days past due as of May 2008; which is what I was positive the date was. I mean is it crazy that the one credit report I print out on paper has the date I originally thought the SOL would expire and the credit reports I found on the computer say something different? It seems to go along with what @WhoCares1000 was saying. 

 

@MSWolverine

 

@shellieh98 made an interesting point.  Were you already in default when you made the last payment?  Or was the account still current when you made that payment?

I believe the account was still current from what I am finding. 

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Why do you think that you cannot get the bank statements? Has the bank been bought out or closed by the FDIC? Do you not remember the bank you did business 6 years ago? Are you worried about the cost?

I say this for a reason. If they sue you and you bring up the SOL defense, when discovery gets started (or you file for a MSJ), they are going to demand all 6 years of bank records to find proof that the SOL did not expire. You can probably whittle that down to the dates in question but you will need to provide something. Credit Reports are usually considered hearsay evidence because they are 3rd parties who are not part of the current action and everyone knows how accurate credit reports can be. By knowing what is going to happen, you can prepare ahead of time so that you are ready to go on the offensive (or defensive if it turns out SOL did not expire) when they do sue you.

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Hey BV, I'm baaaaack.....LOL. Had lot's of fun. Now I need to quit hijacking this thread.......

 

@TomnTex

 

Hi Tom!  :)++  Welcome back to reality!  :-)   I'm so glad you had fun in Hawaii with your family.   (Yes, I'm envious).  :-)

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Why do you think that you cannot get the bank statements? Has the bank been bought out or closed by the FDIC? Do you not remember the bank you did business 6 years ago? Are you worried about the cost?

I say this for a reason. If they sue you and you bring up the SOL defense, when discovery gets started (or you file for a MSJ), they are going to demand all 6 years of bank records to find proof that the SOL did not expire. You can probably whittle that down to the dates in question but you will need to provide something. Credit Reports are usually considered hearsay evidence because they are 3rd parties who are not part of the current action and everyone knows how accurate credit reports can be. By knowing what is going to happen, you can prepare ahead of time so that you are ready to go on the offensive (or defensive if it turns out SOL did not expire) when they do sue you.

The bank has been closed. 

 

I understand what you're saying about the credit reports though. 

 

Do I have any other options to nip this in the bud before a lawsuit even gets brought up? I just cannot deal with going through that again. I was hoping to just send out a C&D because I am seriously positive there is a SOL issue here but I don't want to do that without anything else to back up the printed out credit report. 

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@MSWolverine

 

You haven't been sued yet, so don't borrow trouble.  Just hold off for a little while longer.  

Yeah I certainly can't afford to borrow any trouble, if it's best to hold off I will do it.   I just thought I had to get something done quick to avoid anything worse happening. 

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If the bank was closed by the FDIC, then another bank would have been brought in to take over the records along with the accounts. If the bank just up and closed (and with all the regulation I am doubting this happened), then the state banking commission could inform you as to the location of the records.

As the others said, do not go borrowing trouble. If they call you, you can simply inform them that you are still researching this. Don't bother with a C&D just yet.

In the meantime, find out where the bank records are. Find out how the bank closed and who took over the bank's assets and deposits. That is who would have the record. A letter to the FDIC or State Banking Commission will help you out. If they do sue you, then you will be ready to give them the legal smackdown. Realize too that once you have successfully done a case, the others will  be easier because you will know the process and what to do. The first one is always hard for anyone. A victory or 2 will give you the confidence you need to get through the process (as long as you do not get too cocky).

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If the bank was closed by the FDIC, then another bank would have been brought in to take over the records along with the accounts. If the bank just up and closed (and with all the regulation I am doubting this happened), then the state banking commission could inform you as to the location of the records.

As the others said, do not go borrowing trouble. If they call you, you can simply inform them that you are still researching this. Don't bother with a C&D just yet.

In the meantime, find out where the bank records are. Find out how the bank closed and who took over the bank's assets and deposits. That is who would have the record. A letter to the FDIC or State Banking Commission will help you out. If they do sue you, then you will be ready to give them the legal smackdown. Realize too that once you have successfully done a case, the others will  be easier because you will know the process and what to do. The first one is always hard for anyone. A victory or 2 will give you the confidence you need to get through the process (as long as you do not get too cocky).

Thank you very much for the advice, I didn't know all that about bank closings. I'll see what I can find. 

 

Yeah my first case was a ...nightmare( although I got great support and help on here) and took so much out of me, I can't do that again. 

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Back up, what did the attorney send you in response to your validation request? You mentioned there were no statements. So what did they send?

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I'm confused, isn't this the United States of America, innocent until proven guilty?  TELL them the SOL has expired and MAKE them prove it has not. 

Just be sure to have your proof that it has expired.

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I'm confused, isn't this the United States of America, innocent until proven guilty? 

 

In a criminal case:  yes.  In a civil case the burden of proof is the preponderance of the evidence and there is no presumption of "innocence" at all.

 

None of it matters.  The OP sent a cease and desist letter after the law firm validated the debt.  My guess is they haven't come back because Midland did go away.

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