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how to find SOL expiration date?

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I know the statue of limitations on a credit card in Arizona is 6 years from when I made my last payment. How do I find out (more importantly, prove) when I made the last payment? 

On my credit report, under account history I see "30 days past due as of March 2011", but I'm pretty sure my last payment was in December 2010.

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I don't have any bank or credit card statements anymore.

Also, is it 6 years from my last payment? Or 6 years from 30 days after my last payment?

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6 years + 30 days.  So you're looking at Jan. for the SOL to be expired. 

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Damn! I'm looking at the Justice Court cases and think a suit was filed on 12/9 by LVNV Funding (not 100% its for me since my name is sorta common). I've moved in the past 8 months, so its unlikely that they have my new address (although there are probably new renters living at my old address). Any advice?

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Ruling on Motion Alternative Service      |Williams       | // 
Motion      Alternative Service      | Williams       | Filed by Plaintiff 2/21/2017 
Motion      Extension of Time to Serve      | Williams     | Filed by Plaintiff 2/21/2017 
Ruling on     Motion Extension of Time to Serve     | Williams      |Issued/Ordered 2/22/2017 

 
What does this mean?

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  Ok, the judge granted the Motion for Alternative Service. What does this mean, and how should I proceed?

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It means you should consider yourself served and proceed accordingly. ASAP file the answer and motion to compel arbitration that you've been working on the last few weeks. 

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There is a recent ruling "Mertola LLC v. Santos, Div.1 CA-CV 16-0168, March 2, 2017," in AZ that states the SOL starts when the creditor demands full payment, or "accelerates" collection. The specific ruling says that SOL does NOT start with missed payment, and not even when account is charged off.

 

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13 minutes ago, Goody_Ouchless said:

There is a recent ruling "Mertola LLC v. Santos, Div.1 CA-CV 16-0168, March 2, 2017," in AZ that states the SOL starts when the creditor demands full payment, or "accelerates" collection. The specific ruling says that SOL does NOT start with missed payment, and not even when account is charged off.

 

wow, talk about a mess....how can a court alter the terms of a contract?  A contract should have to have an acceleration clause in it for such a thing to be legit....otherwise, the creditor could just never accelerate, and collect a ton of interest.  Most creditors stop charging interest when the charge off the account....this way, there's gonna be a lot more potential for huge balances IMO....

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14 hours ago, kraftykrab said:

wow, talk about a mess....how can a court alter the terms of a contract?  A contract should have to have an acceleration clause in it for such a thing to be legit....otherwise, the creditor could just never accelerate, and collect a ton of interest.  Most creditors stop charging interest when the charge off the account....this way, there's gonna be a lot more potential for huge balances IMO....

I am kind of expecting this ruling to be appealed on up to the AZ Supreme Court, but in the mean time, let's not ignore the fact that we as consumers have an obligation to understand the terms of whatever agreements we are agreeing to.  They may be 'take it or leave it' contracts, but we always have the option to 'leave it' if we don't like the terms.

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4 hours ago, Harry Seaward said:

I am kind of expecting this ruling to be appealed on up to the AZ Supreme Court, but in the mean time, let's not ignore the fact that we as consumers have an obligation to understand the terms of whatever agreements we are agreeing to.  They may be 'take it or leave it' contracts, but we always have the option to 'leave it' if we don't like the terms.

Great point, and I agree with you.....but there's more to it than that.  We are seeing this massively in the mortgage fraud arena.

 

Mortgage lenders and servicers have made such a routine of breaking the contract, doing things that the contract does not permit, or not doing what it requires them to do....and they do it because they know the courts will allow them to get away with it nearly all the time.  And the real problem is that we are now seeing some of those same exact illegal tactics filtering down into other areas---auto loan and student loan servicing, for example.  The whole issue of "robosigning" is now starting to rear its ugly head with student loan servicing, for example.  Too often, consumers are not even aware of what they are signing, but that's only part of the problem.  In cases where consumers ARE aware, these abuses still happen, and when that consumer tries to use the courts to get the issue addressed, the courts slam the door on the consumer, basically saying, "sorry, but you did not pay your mortgage, so we don't care what else happened, you lose your home".....it's happened too many times to people I know personally.  In my own situation, I have proof--documentation and recorded phone call evidence--showing that the lender cashed my checks and refused to apply the money to the mortgage.  That is a breach of contract, no question about it.  It's also a violation of state law in many places.  At the time that this started happening, I was completely current on my loan, not past due even one day.  But because of this, they racked up a large "delinquent" amount quickly--even quicker than the loan should have allowed.  My mortgage was under $600 per month.  In the span of literally  one month, I went from having a past due balance of 0....to a past due balance of over $3,500....that was over 6 years ago and no one can, or even has tried to, explain it.  They have been able to tell me that that amount is not "fees", it's supposedly past due mortgage payments.  But they cannot offer even a guess as to where the amount comes from. 

 

And now, your car loan is likely to get securitized into a trust, just like mortgages have....same for private student loans....and credit card debt too.  That securitization is a sham--the trusts do not actually own anything.  It's all a big scam.  Sure, it could be done legitimately, but it has not been, at least not in the mortgage industry.  The experts have concluded that within the last 10 years, there have been over 10 million foreclosures, and as many as 90% of those were fraudulently done--meaning as many as 9 million families lost their homes to an entity that had no actual lawful claim to either the loan or the property.  The courts were involved in 100% of those fraudulent foreclosures....and actually made those rulings.  I'm not saying that the homeowners did not owe the money.....but we have laws in place to ensure that the correct party is suing, and those laws are tossed aside routinely, even by the courts.  I'm not trying to take anything away from a consumer's obligation to pay what they owe, but they deserve to only be obligated to the proper party in that process.  No one can tell me right now who supposedly owns the mortgage loan....the supposed trustee sent me a written reply that says, "if we are the trustee......"--they do not even know!  The servicer keeps contradicting itself on who owns it. 

When you get sued over a credit card debt, you many times can defeat the suit by attacking the chain of title.  But in a foreclosure proceeding, we've seen banks literally produce 4 DIFFERENT "original notes" in one case, each with different endorsements, after the homeowner challenged the chain of title.  The bank in that case was BofA.  And they WON....the court ignored the perjury, the obviously fabricated "original notes" with ever-changing and even disappearing endorsements, and ruled in favor of the bank anyways!  I wonder how long it will take until we cannot even argue chain of title issues for credit card or other types of debt like that...

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It has to do with the case that was mentioned and the problems being transferred from mortgage cases down to other kinds of debts.   It was not ever meant to address the OP's question, it was a comment relating to the lawsuit that was mentioned and my observations.  For example, how can the courts even require acceleration on a debt when there's no provision in those contracts for acceleration?  I could be wrong, but I don't recall seeing an acceleration clause in a CC contract....and if there is not one, no court has the authority after the fact to add conditions to that contract.

 

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10 hours ago, kraftykrab said:

no court has the authority after the fact to add conditions to that contract.

 

There's no clause in any credit card agreement that asserts what trigger event starts the SOL clock ticking.  Contracts are interpreted under whatever governing law applies.  In order to say a court is adding conditions by using the acceleration event to trigger SOL, you would have to apply the same argument to every case where a court looked to the date of first missed payment as the trigger event.  To put a finer point on it, a JDB could use your argument to claim the SOL never started, since the agreement never sets out conditions for a SOL trigger event.

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On 4/14/2017 at 4:38 PM, kraftykrab said:

wow, talk about a mess....how can a court alter the terms of a contract?  A contract should have to have an acceleration clause in it for such a thing to be legit....otherwise, the creditor could just never accelerate, and collect a ton of interest.  Most creditors stop charging interest when the charge off the account....this way, there's gonna be a lot more potential for huge balances IMO....

Federal regulations require that banks charge off a delinquent account no more than 180 days after default when an account is not brought back to a current status.   Once an account is charged off, then the entire amount is due.   I suppose that's a type of acceleration clause.  However, they can still continue to charge interest if they keep on sending billing statements after charge off.

 

 

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Once an account is charged off, then the entire amount is due.

The opinion cites a precedent case, Baseline Financial Services v. Madison, 278 P. 3d 321 - Ariz: Court of Appeals, 1st Div., Dept. C 2012, where the court rejects this claim:

"Madison cites no legal authority for the proposition that an internal charge off of a debt is an act sufficient to exercise an option to accelerate, and we are aware of none. Other courts have rejected such a claim."

The court goes on to cite a Florida court of appeals case, Central Home Trust Co. v. Lippincott, 392 So. 2d 931 - Fla: Dist. Court of Appeals, 5th Dist., which rejected the claim that a charge-off accelerates the debt to the entire account balance.

The Washington Mutual agreement in Mertola LLC v. Santos has an entire paragraph devoted to acceleration.  Most other credit card agreements have a single sentence, usually found in the default paragraph of the agreement.  For example, most Citibank agreements contain the sentence "If you default, we may close your account and, to the extent permitted by law, demand immediate payment of the total balance." This single sentence seems to contain all the necessary elements of an option to accelerate.

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7 minutes ago, Xerxes said:

The opinion cites a precedent case, Baseline Financial Services v. Madison, 278 P. 3d 321 - Ariz: Court of Appeals, 1st Div., Dept. C 2012, where the court rejects this claim:

"Madison cites no legal authority for the proposition that an internal charge off of a debt is an act sufficient to exercise an option to accelerate, and we are aware of none. Other courts have rejected such a claim."

The court goes on to cite a Florida court of appeals case, Central Home Trust Co. v. Lippincott, 392 So. 2d 931 - Fla: Dist. Court of Appeals, 5th Dist., which rejected the claim that a charge-off accelerates the debt to the entire account balance.

The Washington Mutual agreement in Mertola LLC v. Santos has an entire paragraph devoted to acceleration.  Most other credit card agreements have a single sentence, usually found in the default paragraph of the agreement.  For example, most Citibank agreements contain the sentence "If you default, we may close your account and, to the extent permitted by law, demand immediate payment of the total balance." This single sentence seems to contain all the necessary elements of an option to accelerate.

 It's all kind of confusing to me. Usually, when a credit card is charged off, you get a billing statement for the entire balance. That, to me, would tend to indicate that the bank is exercising it's option to accelerate.

 

 

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I think what the court is saying is that charge off in and of itself does not constitute an exercise of the acceleration option. If a bill is sent for the whole balance, then the acceleration option has been, at least implicitly, exercised.

I have seen high balance cases in Arizona Superior Court where statements are part of the public record and the indicated minimum payment is equal to the total balance far sooner than would be the case under the non-default minimum payment terms.

My guess is that Santos probably received some similar sort of acceleration notice or other demand or bill for the entire balance. The court is clear that no such evidence is before the court, so it is too late for Santos. However, if this decision stands, creditors might avoid any acceleration in Arizona, since it would increase the value of the debt on the resale market. They lose no rights by only increasing the minimum due and not accelerating the debt so that the minimum due equals the total balance.

If you're in Arizona, you'll want to save the first document that demands the whole balance and mark that date as the start of the sol. Unless and until this decision is reversed. I don't see any holes for the Santos case, given the evidence in the record for this particular case.

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17 hours ago, Xerxes said:

I think what the court is saying is that charge off in and of itself does not constitute an exercise of the acceleration option. If a bill is sent for the whole balance, then the acceleration option has been, at least implicitly, exercised.

Okey dokey.  That makes sense.

17 hours ago, Xerxes said:

I have seen high balance cases in Arizona Superior Court where statements are part of the public record and the indicated minimum payment is equal to the total balance far sooner than would be the case under the non-default minimum payment terms.

My guess is that Santos probably received some similar sort of acceleration notice or other demand or bill for the entire balance. The court is clear that no such evidence is before the court, so it is too late for Santos. However, if this decision stands, creditors might avoid any acceleration in Arizona, since it would increase the value of the debt on the resale market. They lose no rights by only increasing the minimum due and not accelerating the debt so that the minimum due equals the total balance.

If you're in Arizona, you'll want to save the first document that demands the whole balance and mark that date as the start of the sol. Unless and until this decision is reversed. I don't see any holes for the Santos case, given the evidence in the record for this particular case.

Hopefully, it will be reversed at some point.  It's really not fair that a consumer could make a payment while the account is in good standing, never make another payment, but the SOL doesn't start for another 6 months or so until the account is charged off and the OC sends a final bill.

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The massive problem with Santos is that SOL as an affirmative defense must be proven by the defendant. With AZ courts on the record that charge off is not "acceleration", the only way a defendant could successfully assert SOL against an unscrupulous JDB (or OC, for that matter) is to have, as @Xerxessaid, some form of proof the creditor demanded payment in full. Otherwise,  SOL is a dead defense unless and until Santos is reversed. 

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Hmmm...now I don't know if this even belongs to me. As you recall, all I did was enter my name into the docket search of the Justice Court website. My name is pretty broad...like John Smith. I just pulled my credit and see no "LVNV Funding" who is doing the suing.

Can I go to the courthouse with the docket number and ask for a copy of the complaint? Not even sure if it belongs to me.

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On 4/18/2017 at 4:50 PM, Harry Seaward said:

SOL is a dead defense unless and until Santos is reversed. 

The Arizona Supreme Court anticipates the filing of an Opinion in Mertola LLC v. Santos tomorrow morning.

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