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CalDebt909

Time barred debt collection attempt

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20200308_171532.thumb.jpg.f58dd0916de4a9147970ba8b51055943.jpgThankfully found this forum on google. I have taken some time to read the forums but could not find an answer related to my questions. Perhaps I used an unrelated search phrase. Please forgive the kind of long post. I'll try to keep my questions short and concise. 

My question is, a company named Santander Consumer USA (I assume is a third party debt collector, because their letter states original contract date is from 2012 and they stated my original auto loan creditor sold the account) is trying to collect a charged off auto repossession loan from 2012. Their letter that I just received, states that the original creditor has sold my account to a Credit Union. Now as of March 2020 the original creditor "has transferred the servicing of my account to "Santander Consumer USA Inc."  

The message at the end of the letter says I have 30 days to after receiving this notice that I dispute the validity of the debt or they will assume the debt is valid. 

My questions are:

1. Can they legally come after me for this debt that has already been discharged and has fallen off my credit report? (From researching online, California statute of limitations is 4 years from last failure to pay date)

2. Should I respond to their letter and ask for validation? (What would be the worst possible scenario if I do?)

3. Would it be advisable to ignore all communications from them since the debt is older than 4 years? (What implications would this have?)

4. I'm in the process of doing a legal name change (for work related purposes), will this affect how they are or are not able to come after me?

5. If it comes down to it, what if any are my options of going after them to take legal action against them for any violations of the law?

From the short time I have spent reading some other posts, there seems to be some very knowledgable people on this forum. Thanks in advance to any and everyone who does respond to my post. Im at a loss about what to do next. Also if there are any other resources that anyone could point me to, I would greatly appreciate it. My hope is also that someone in my similar situation can learn from this as well. I apologize in advance if this is the the proper forum for my questions. 

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36 minutes ago, CalDebt909 said:
 
 

Thankfully found this forum on google. I have taken some time to read the forums but could not find an answer related to my questions. Perhaps I used an unrelated search phrase. Please forgive the kind of long post. I'll try to keep my questions short and concise. 

My question is, a company named Santander Consumer USA (I assume is a third party debt collector, because their letter states original contract date is from 2012 and they are reference my original auto loan creditor sold the account) is trying to collect a charged off auto repossession loan from 2012. Their letter that I just received, states that the original creditor has sold my account to a Credit Union. Now as of March 2020 the original creditor "has transferred the servicing of my account to "Santander Consumer USA Inc."  

The message at the end of the letter says I have 30 days to after receiving this notice that I dispute the validity of the debt or they will assume the debt is valid. 

My questions are:

1. Can they legally come after me for this debt that has already been discharged and has fallen off my credit report? (From researching online, California statute of limitations is 4 years from last failure to pay date)

2. Should I respond to their letter and ask for validation? (What would be the worst possible scenario if I do?)

3. Would it be advisable to ignore all communications from them since the debt is older than 4 years? (What implications would this have?)

4. I'm in the process of doing a legal name change (for work related purposes), will this affect how they are or are not able to come after me?

5. If it comes down to it, what if any are my options of going after them to take legal action against them for any violations of the law?

From the short time I have spent reading some other posts, there seems to be some very knowledgable people on this forum. Thanks in advance to any and everyone who does respond to my post. Im at a loss about what to do next. Also if there are any other resources that anyone could point me to, I would greatly appreciate it. My hope is also that someone in my similar situation can learn from this as well. I apologize in advance if this is the the proper forum for my questions. 

You didn’t post the redacted letter, so it is hard to tell if they violated the law.  If the letter said they won’t sue, then they are probably okay. 
 

If this really is past the SOL, and not then trying to collect a judgment, you may safely ignore their letter.  Or, you can send a FOAD letter telling them not to contact you anymore.  

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Thank you BackFromTheDebt for responding.  

Please excuse my ignorance but I had to look up what "FOAD" meant LOL! Im going to work on getting the redacted letter posted so others can also have a better idea of whats going on. I have read and re-read carefully the entire letter again, an nowhere does it mention that they will not sue. 

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Since you are in California, the Rosenthal Act (which is the CA State FDCPA) applied to original creditors as well as debt buyers. If you are 100% sure this debt is for the 2012 auto repo, I would send either the FOAD letter or even a letter which says you refuse to pay which has the same effect. They cannot sue you for this debt and at this point, they cannot put it on your credit report (even if the letter says they will).

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2 hours ago, WhoCares1000 said:
 

Since you are in California, the Rosenthal Act (which is the CA State FDCPA) applied to original creditors as well as debt buyers. If you are 100% sure this debt is for the 2012 auto repo, I would send either the FOAD letter or even a letter which says you refuse to pay which has the same effect. They cannot sue you for this debt and at this point, they cannot put it on your credit report (even if the letter says they will).

Thank you very much for responding. I really do appreciate it.

I am in fact 110% sure this is from 2012. Due to a job layoff, it was the only repo I have ever had. It still bothers me till this day because I should have made plans in the event something lime that happens. But that's another story. 

I am looking I to what type of FOAD letter to send. Any suggestions on that?

Last question, can they come back at me for something later if I don't request validation within 30 days like the letter states, or is that just a scare tactic designed to verify they have my correct and current personal Info? Thanks again

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A FOAD letter doesn't have to be fancy.  

Here are two examples.  Both of these legally preclude them from contacting you again.  Occasionally they will ignore Example 2, which gives you an opportunity to sue them:

 

Example 1:

Dear Evil Debt Collectors,

Never contact me about this alleged debt again.  

Yours, 

Your Name

 

Example 2:

Dear Evil Debt Collectors,

I refuse to pay this alleged debt.

Etc.

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49 minutes ago, BackFromTheDebt said:

A FOAD letter doesn't have to be fancy.  

Here are two examples.  Both of these legally preclude them from contacting you again.  Occasionally they will ignore Example 2, which gives you an opportunity to sue them:

 

Example 1:

Dear Evil Debt Collectors,

Never contact me about this alleged debt again.  

Yours, 

Your Name

 

Example 2:

Dear Evil Debt Collectors,

I refuse to pay this alleged debt.

Etc.

Thank you for chiming in, and thank you for the examples. I'm definitely going to send the FOAD letter. Will keep you all updated as to their response. 

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1 hour ago, CalDebt909 said:

Thank you for chiming in, and thank you for the examples. I'm definitely going to send the FOAD letter. Will keep you all updated as to their response. 

Well, legally there are only two responses, there would be three if the debt is within the SOL:

1. No response at all.  This is the most common.

2. They can contact you once to tell you what their next step is after your FOAD.  

If the debt is within the SOL:

3. They can sue.  

 

Other than that, they are not permitted to contact you at all.  If you send a FOAD letter with the debt within the SOL, you are asking for a lawsuit.  Past the SOL, they cannot sue.  So any contact other than the one time telling your their next step is completely banned.  

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The letters do not have to be fancy at all. Once sentence is all you need, the examples given by others work just fine. Just make sure you send the letter Certified Mail Return Receipt Requested (CMRRR) green card style (that is where a green card is filled out by you at the post office, attached to the letter, and the receiver has to sign for it, the green card is then returned to you with the receivers signature and the date it was delivered). After that, since the debt is time barred from lawsuit, the only thing they can do is call you to tell you what they will do next (which legally is not much).

Note that in any state other than Wisconsin and I believe Mississippi, they can ask nicely for you to pay a debt that is SOL. This letter is therefore legal. Your answer though will stop them cold unless Santander is still following the wild west rules of the 90s and 00s.

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Thanks again to everyone who replied.  I have gotten a good sense of direction now, and I really do appreciate everyone's input. 

For those who are curious, I found something interesting online during some research. A peek behind enemy lines. A brief look into JDB thought process on this topic. I hope it's okay to post a link to YouTube here. If not I apologize in advance, but I do hope someone finds something beneficial in this video. 

Time-Barred Collection Strategies

 

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The things is, if your state allows the collection of these debts, they have the right to try to collect. They cannot use any legal means to force you to pay (and we always recommend that you don't pay because of the possibility of restarting the SOL clock). If you tell them to go away, they usually know that they have to go away. The same goes for collecting debt from someone who is deceased. There is no law that requires anyone to pay on a deceased debt beyond what the descendants estate can pay. If the estate can pay nothing, the debt is left unpaid.

The truth is, most JDBs these days will try to follow the rules. There are some out there that flaunt the law but those are usually scammers that you can spot a mile away now. Most of the big players will play by the rules. I am shocked that Santander did not put a notice of the debt being time barred but then again, Santander is a late player to the US debt market and as such, might need to learn a few lessons about the rules here.

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20 hours ago, WhoCares1000 said:

The things is, if your state allows the collection of these debts, they have the right to try to collect. They cannot use any legal means to force you to pay (and we always recommend that you don't pay because of the possibility of restarting the SOL clock). If you tell them to go away, they usually know that they have to go away. The same goes for collecting debt from someone who is deceased. There is no law that requires anyone to pay on a deceased debt beyond what the descendants estate can pay. If the estate can pay nothing, the debt is left unpaid.

The truth is, most JDBs these days will try to follow the rules. There are some out there that flaunt the law but those are usually scammers that you can spot a mile away now. Most of the big players will play by the rules. I am shocked that Santander did not put a notice of the debt being time barred but then again, Santander is a late player to the US debt market and as such, might need to learn a few lessons about the rules here.

I might be wrong here but according to this link, Sandanter is "required to provide notice to debtors when collecting on debts that are past the statute of limitations and will be prohibited from suing on such debts" notice in their first communication with me. I believe this is a violation on their part.  Can someone please weigh in? I might be missing something in the language of the Rosenthal Fair Debt Collections Practices Act new rule. Thanks in advance. 

https://www.consumerfinancemonitor.com/2018/09/18/california-enacts-additional-limits-on-collecting-time-barred-debts/ 

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If you think there is a violation, take the letter to a consumer attorney in California and see what they have to say if you want to be bothered going after them. The easiest way will simply be to send the refusal to pay letter and move on.

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13 hours ago, WhoCares1000 said:

If you think there is a violation, take the letter to a consumer attorney in California and see what they have to say if you want to be bothered going after them. The easiest way will simply be to send the refusal to pay letter and move on.

Great advice. I do prefer to just move on but I wanted to be sure in case they try something in court later. I've heard of crazier things happening. 

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If they do try to sue you and the courts do not automatically dismiss the case due to the changes in CA law in 2019, you file an answer with the affirmative defense that the debt is time barred, and on the same case, you file a counter-claim for Rosenthal Act and FDCPA violations. Keep the letter to show multiple violations of Rosenthal (not sure if each violation is counted separately for Rosenthal unlike FDCPA where all violations are counted as one) because they did not mention that the debt was time barred.

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Update:

Thanks to everyone who gave their input and advice. Just in case anyone here wants to know what happened. Taking the advice of many here, I sent an FOAD letter to Santander pretty much stating that they were in violation of a few laws and that I know the debt they were trying to collect from me was time barred. They sent back a nice reply.  Their reply pretty much stated that they were in error and neither them or their client will be perusing this debt any further. They said that they consider this matter settled.

I'm not sure if they knew based on my letter that they did not follow the law by not including pertinent information as required in their first communication to me, or they just took me at my word when I told them I knew this debt was time barred and I refuse to pay anything. Either way, I'm glad to just put this all behind me.  Thanks again everyone. I hope this helps someone else out there with Santander.

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8 hours ago, CalDebt909 said:

I sent an FOAD letter to Santander pretty much stating that they were in violation of a few laws and that I know the debt they were trying to collect from me was time barred. They sent back a nice reply.  Their reply pretty much stated that they were in error and neither them or their client will be perusing this debt any further. They said that they consider this matter settled.

That is exactly what they should have done.  Congratulations.

For the benefit of anyone else who reads this thread:  Santander is not a junk debt buyer.  They are a subprime auto lender and frequently buy out entire portfolios of other smaller lenders who are seeking to get out of the auto credit business.  My guess is that your old account was treated as though it was still active and once you brought it to their attention that this was a mistake they did the correct thing and dropped it.  Make no mistake you do not ever want to do business with them (as in if this is your only financing option take the bus or walk) but they are an original creditor and the FDCPA would not apply to them.

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