StacieM

What is the statute of limitation on a Sears store card?

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Yes, according to this NYC lawfirm

 

 

http://www.thelangelfirm.com/Debt-Defense-Blog/2012/January/Portfolio-Recovery-Associates-v-King-Statutes-of.aspx

 

 

 

 

A statute of limitations limits the number of years that a creditor can sue you for a debt. (But note it does not limit the number of years a debt collector can contact you). In New York, the statute of limitations on credit card debts is, generally speaking, six years. (See New York CPLR § 213). But, for auto loans, and store credit cards, such as Macy's or Sears cards, the statute of limitations is four years. (See New York UCC § 2-72

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Sorry, but the sol in New York on written and oral contracts is 6 years. So it would be 6 years from the day of your last payment, plus 1 month.

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Ha! Where did you find that DZ? Ok, 4 years and 1 month from last payment. If it is a JDB suing you they will argue the 6 year sol, but you may have a counter suit against them for suing on a time barred debt if it is indeed over 4 years

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4 years sounds right. Also, check the cardmember agreement for U.C.C. wording (Uniform Commercial Code). If there's no VISA/Mastercard logo and it could only be used to purchase at Sears, has repossession wording, it should be considered a sale of goods card which gives you the 4 years.

UCC, Section 2–725

 

Who is the Plaintiff? If it's a debt buyer, you have additional U.C.C. transfer provisions they must meet or you have the right to pay the original creditor.

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4 years sounds right. Also, check the cardmember agreement for U.C.C. wording (Uniform Commercial Code). If there's no VISA/Mastercard logo and it could only be used to purchase at Sears, it should be considered a sale of goods card which gives you the 4 years.

UCC, Section 2–725

 

Who is the Plaintiff? If it's a debt buyer, you have additional U.C.C. transfer provisions they must meet or you have the right to pay the original creditor.

 

 

 

Yes

 

.The statute of limitations on an auto loan or store card (like a Sears or Macy’s card) is four years (New York State Law, Uniform Commercial Code § 2-725).

 

http://www.neweconomynyc.org/common-defenses-to-creditor-lawsuits/

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Thank you all very much for your prompt response!

 

@CCRP626 The Plaintiff is indeed a JDC. I was served last week and I wanted to know how to answer and if I should counterclaim since the debt is over 4 years and 1 month old.

 

With that being said, how should I phrase my answer if I want to counterclaim ? Also, should I just get an attorney to handle this case if I counterclaim?

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Check to make sure the U.C.C. applies and you would use Section 9-406 for the assignment challenge.

 

Also, this court case shows the O.C. notifies, not the JDB-

Chase Bank USA, N.A. v. Cardello, 27 Misc. 3d 791, 896 N.Y.S.2d 856,
857-58 (Richmond Co. Civ. Ct., March 4, 2010):

It is clear however, that due process requires that notice of the assignment be given to the debtor by the assignor and not by the assignee. The credit
card holder had his or her agreement with credit card issuer and not with the unknown third-party debt purchaser so that receipt of notice from the
third-party debt purchaser does not satisfy due process standards. Allowing the assignee to give notice would enable dishonest debt
collectors to search the court records, obtain the names of judgment debtors and send the debtor a letter stating they have purchased the debt
from credit card issuers such as Chase and should make all payments to the third party. Requiring the assignor-credit card issuer to serve the
notice would reduce the incidents of fraud in this regard.

 

 

"should I just get an attorney to handle this case if I counterclaim?"

Always a good idea to at least run everything past them. They may see things that will have the Plaintiff paying their bills so you basically get free representation.

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If you want to do this pro se, this will get you started:

 

 

http://www.lawhelpny.org/consumer

 

 

 

Brooklyn

Time: Thursday 2:30-4:30PM and 6:00-8:00PM
Location: Kings County Civil Courthouse; 141 Livingston Street, Room 403, Brooklyn, NY 11201

 

 

 

I would, however, strongly suggest that you at least get a free consultation with a lawyer.  If you have a FDCPA violation (like being sued on a time-barred debt), lawyers will take your case on contingency, meaning you won't be charged a fee.

 

Here are two lawyers I googled.

 

 

 

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@CCRP626  I do not see anything about a Uniform Commercial Code in the card agreement. Does this change the nature of the SOL?

I'd recommend having an attorney look it over but the agreement may have wording along the lines of security interest or repossess.

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@StacieM it sounds like your state is cracking down on these guys, in addition to the NYC info @debtzapper posted, there are these new statewide changes.

 

You mentioned you were served last week and the Statute of Limitations disclosure rule was already in effect then.

Possible violation?

 

Statute of Limitations Disclosures

Most significantly, debt collectors will need to provide disclaimers to the consumer if it is believed that the debt may be beyond the statute of limitations. The disclosure must state that the creditor and/or collector believes that the SoL has expired, that the consumer may stop any collection lawsuit filed on a time-barred account, and that the consumer is not required to pay but if they choose to do so, the SoL may restart, exposing the consumer to legal liability.

The rule text provides sample language, running four paragraphs, that satisfies the requirement. One passage from that language reads:

Even if the statute of limitations has expired, you may choose to make payments on the debt. However, be aware: if you make a payment on the debt, admit to owing the debt, promise to pay the debt, or waive the statute of limitations on the debt, the time period in which the debt is enforceable in court may start again.

The statute of limitations disclosure requirements go into effect March 3, 2015.

http://www.insidearm.com/daily/credit-card-accounts-receivable/charge-off/new-york-adopts-new-statewide-regulations-on-debt-collection/

 

The full text of the new rules can be found at

http://www.dfs.ny.gov/legal/regulations/adoptions/dfsf23t.pdf

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Also, this court case shows the O.C. notifies, not the JDB-

Chase Bank USA, N.A. v. Cardello, 27 Misc. 3d 791, 896 N.Y.S.2d 856,

857-58 (Richmond Co. Civ. Ct., March 4, 2010):

 

 

Be careful about using a civil court's ruling as precedent in another jurisdiction. In some counties in NY, the exact same circumstances before two different judges in the same county end up with different results.

 

Also just know that using Staten Island (Richmond County) court rulings to form your strategy might not work. Courts in Staten Island might be considered pro debtor rejecting evidence supporting unopposed default judgements because of an "I" not dotted or a "T" crossed exactly the way the judge and/or court clerk wanted it. The same evidence in another jurisdiction wins a creditor's MSJ so fast it would make your head spin. An example might be that the Plaintiff's lawsuit lack a sum certain because it didn't nail down the interest to the penny.

 

Some plaintiff's don't even pursue cases in Staten Island, too much work no matter what the amount of the damages.

 

Having said that, if you need some light reading and want to get a laugh, read some cases from Staten Island. 

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Here is a link to an answer with counterclaims.  I probably would't use all the ones they used, but any that apply.  Or you can see a NACA attorney to do all the work for you. ;)

http://www.debtinversion.com/blog/wp-content/uploads/2010/10/sample-answer-and-counterclaims-in-Mel-Harris-credit-card-lawsuit.pdf

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Wow, you all are so amazing. I thank you all from the bottom of my heart!

 

@debtzapper I've contacted the firm you listed, though I am waiting to hear back from them. Do you know for sure if they will take my case on contingency?

 

@CCRP626 Thank you for the additional information regarding the statute of limitations. 

 

@NYS of Mind Thanks you for the advice. I am going to consult a lawyer just to be careful.

 

@shellieh98 Thank you for the very informative link! 

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@StacieM

 

No, I don't know for sure.  That's something you need to find out from the lawyer.  Finding the right lawyer can take a while.  I had to contact FIVE before I got one to take my case on contingency.  My case was different, though.  I wasn't being sued, but was being subjected to illegal debt collection calls.  

 

If you don't hear from the law firm soon, call and ask to speak to the lawyer directly.

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@debtzapper @shellieh98 @CCRP626 Ok I've decided to go pro se on this one. 

 

After speaking with staff in the office, I've learned that the JDC and the OC was named as the plaintiff and I've been told this is illegal. What does this mean for me and how should I proceed?

 

To be clear it shows on my credit report as "purchased by another lender" and the JDC clearly states who the current owner is and who was the former owner. 

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"I've been told this is illegal. What does this mean for me and how should I proceed?"

The more it feels illegal I would say weighs towards getting an attorney who will be able to do more than just get the case dismissed.

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@StacieM

 

After speaking with staff in the office, I've learned that the JDC and the OC was named as the plaintiff and I've been told this is illegal.

 

 

Exactly how were they listed in the court header on the complaint?

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@StacieM

 

"APO" means "as proxy of".   I would take that to mean that that the plaintiff is suing for the OC.   You keep referring to "JDC".  You need to find out if the plaintiff is a debt buyer suing for itself or a debt collector suing for the OC.  

 

It appears that NY allows "APO".   Here's a case in which multiple defendants were sued.  One of the defendants was "Arrow Financial Services, LLC APO GE Money Bank".

 

http://scholar.google.com/scholar_case?case=3282282837027603668&q=%22DEUTSCHE+BANK+NATL.+TRUST+CO.+v.+Rodriguez%22&hl=en&as_sdt=4,33

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