Not Sued, Yet But Need to Take Action

[MIOMH]

Hello,

For months I've been receiving letters from Capital Management Services, LP about $1275 debt from Bank of America that was charged off 3-5 years ago.  I've been patiently waiting for the lawsuit to arrive or for the SOL to arrive.  Unfortunately, I need the debt taken off my credit report and can't wait.  On the Credit Report it shows BoA as owner, CMS does not appear on report.  I was thinking about contacting them to agree on a settlement for removal but I'm open to any ideas.  Can I initiate Arb with Capital Management Services or they wouldn't know what I'm talking about?

Thank you

[BV80]

18 minutes ago, MIOMH said:

Hello,

For months I've been receiving letters from Capital Management Services, LP about $1275 debt from Bank of America that was charged off 3-5 years ago.  I've been patiently waiting for the lawsuit to arrive or for the SOL to arrive.  Unfortunately, I need the debt taken off my credit report and can't wait.  On the Credit Report it shows BoA as owner, CMS does not appear on report.  I was thinking about contacting them to agree on a settlement for removal but I'm open to any ideas.  Can I initiate Arb with Capital Management Services or they wouldn't know what I'm talking about?

Thank you

BOA removed arbitration from its agreements over 10 years ago, so arbitration is not an option unless you opened the account before 2009..   Even if it did still have arbitration, if BOA still owns the account, you could not initiate arbitration with CMS.

Does the BOA entry on your credit report show that you still owe a balance?  If so, BOA still owns the account, and you could work out a settlement.  However, it would be unusual for an original creditor to agree to delete its entry even if you paid in full..

Since you are in NY, a paid collection should be removed 5 years from the date of first delinquency.  If it has not been 5 years, BOA would not be under any obligation to remove it.

[Bulldoger]

I had a charge-off with Bank of America for $5500 in 2008 they never filed suit , 7 years later came off my credit reports.  They never sold the debt.  I just waited. 

[MIOMH]

45 minutes ago, BV80 said:

BOA removed arbitration from its agreements over 10 years ago, so arbitration is not an option unless you opened the account before 2009..   Even if it did still have arbitration, if BOA still owns the account, you could not initiate arbitration with CMS.

Yes, I opened the account before 2009.  

 

46 minutes ago, BV80 said:

Does the BOA entry on your credit report show that you still owe a balance?  If so, BOA still owns the account, and you could work out a settlement.  However, it would be unusual for an original creditor to agree to delete its entry even if you paid in full..

Yes, it does.

 

47 minutes ago, BV80 said:

Since you are in NY, a paid collection should be removed 5 years from the date of first delinquency.  If it has not been 5 years, BOA would not be under any obligation to remove it.

Are you saying if they agreed on a settlement, I pay and the first delinquency was over 5 years then it will be removed?

[MIOMH]

47 minutes ago, Bulldoger said:

I had a charge-off with Bank of America for $5500 in 2008 they never filed suit , 7 years later came off my credit reports.  They never sold the debt.  I just waited. 

I was hoping on that or get served to go through Arb but I need unfortunately I can't wait anymore and need to speed up the process.

[MIOMH]

I have the same situation with a credit union.  I thought it was the bank's attorney reaching out to me until I did research here and found that it is another debt collector Carson Smithfield, LLC.  Should I open another separate topic or should I discuss both in this same thread?

[BV80]

7 hours ago, MIOMH said:

Yes, I opened the account before 2009.  

Arbitration might be a possibility, but original creditors usually arbitrate.  It’s very difficult to win against an OC because they usually have all the documentation necessary to prove their case.

7 hours ago, MIOMH said:

Are you saying if they agreed on a settlement, I pay and the first delinquency was over 5 years then it will be removed?

For collection accounts, the date of first delinquency is the date the account became delinquent and was never brought back to a current status.  Here is the NY law.  Contact a NY consumer attorney to clarify.

New York State  General Business Law Section 380-j

“(f)(1) Except as authorized under paragraph two of this subdivision, no consumer reporting agency may make any consumer report containing any of the following items of information.

(i) bankruptcies which, from date of adjudication of the most recent bankruptcy, antedate the report by more than fourteen years;

(ii) judgements which, from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period;  or judgments which, from date of entry, having been satisfied within a five year period from such entry date, shall be removed from the report five years after such entry date;

(iii) paid tax liens which, from date of payment, antedate the report by more than seven years or, a paid, satisfied or vacated tax lien involving a purchaser, transferee or assignee in a bulk sale transaction who has been deemed liable by the state tax commission for sales taxes due from a seller, transferrer or assignor under subdivision (c) of section eleven hundred forty-one of the tax law, where the receipt by a credit reporting agency from such purchaser, transferee or assignee of a notice, or true copy thereof, from the state tax commission to such purchaser, transferee or assignee that his liability has been wholly paid or satisfied or no longer exists, antedates the report by more than thirty days;

(iv) accounts placed for collection or charged to profit and loss which antedate the report by more than seven years;  or accounts placed for collection or charged to profit and loss, which have been paid and which antedate the report by more than five years; “

[MIOMH]

1 hour ago, BV80 said:

(iv) accounts placed for collection or charged to profit and loss which antedate the report by more than seven years;  or accounts placed for collection or charged to profit and loss, which have been paid and which antedate the report by more than five years; “

Thank you very informative.

So, my plan of action is finding out if the OC still has the charge off account and try to settle.  If it has been passed to a debt collector, back to my original question can initiate Arb with the debt collector?

[BV80]

4 minutes ago, MIOMH said:

Thank you very informative.

So, my plan of action is finding out if the OC still has the charge off account and try to settle.  If it has been passed to a debt collector, back to my original question can initiate Arb with the debt collector?

When a creditor sells an account , it must report a $0 balance.  it might also include “sold” or “transferred” in the entry.  Is BOA still reporting a balance?  If so, it still owns the account.  In the event BOA still owns it, no you cannot initiate with the collection agency.

If the collection agency has purchased the account and is the current owner, you could attempt arbitration, but you would have an uphill battle if they refuse.  The reason is because you would need the survivability clause from your original agreement.  Then you would have to prove to the court that the arbitration provision still survives the removal of that provision.

The collection agency is not reporting, so why would you initiate arbitration?  Find out the date of first delinquency.  That 5 year limit for paid collection accounts may be closer than you think.

Also, if the agency owns the account and the 5-year limit is still a year or 2 away, you might be able to come to a settlement which includes that they won’t report.

Note that in the event CMS has purchased the account and is the current owner, paying that company will have no effect on BOA’s credit report entry.  BOA’s entry will remain because only BOA can remove its own entry.

 

[MIOMH]

15 minutes ago, BV80 said:

When a creditor sells an account , it must report a $0 balance.  it might also include “sold” or “transferred” in the entry.  Is BOA still reporting a balance?  If so, it still owns the account.  In the event BOA still owns it, no you cannot initiate with the collection agency.

BOA still owns it because it shows an amount each month.  I keep ignoring the letters from CMS.

20 minutes ago, BV80 said:

Also, if the agency owns the account and the 5-year limit is still a year or 2 away, you might be able to come to a settlement which includes that they won’t report.

Interesting I wonder would they agree to that.

Thank you @BV80

[BV80]

5 minutes ago, MIOMH said:

BOA still owns it because it shows an amount each month.  I keep ignoring the letters from CMS.

Interesting I wonder would they agree to that.

Thank you @BV80

It appears BOA simply hired CMS to collect.  If you decide to pay BOA, see if they will recall the account from CMS before you pay it,  Recalling the account removes collection authority from CMS.

[MIOMH]

3 hours ago, BV80 said:

It appears BOA simply hired CMS to collect.  If you decide to pay BOA, see if they will recall the account from CMS before you pay it,  Recalling the account removes collection authority from CMS.

I contacted BoA and that's correct. Due to the age of the account they won't/can't no sue me. They won't deal with me and Amy discussion about settlement has to be done with CMS. After CMS and I agree on settlement after it is process they report back to BoA then BoA will show settled in full.

I need guidance in what settlement request I should ask for besides $ amount to make sure the record is clean. BoA did mention that the clock won't reset if I make a payment.

[BV80]

30 minutes ago, MIOMH said:

I contacted BoA and that's correct. Due to the age of the account they won't/can't no sue me. They won't deal with me and Amy discussion about settlement has to be done with CMS. After CMS and I agree on settlement after it is process they report back to BoA then BoA will show settled in full.

I need guidance in what settlement request I should ask for besides $ amount to make sure the record is clean. BoA did mention that the clock won't reset if I make a payment.

Well, a payment could restart the SOL for collection, but not credit reporting.  Personally, I would try to settle with a single lump sum payment, if possible. 

Did you ask CMS if they will agree not to report to the CRAs?

[MIOMH]

2 minutes ago, BV80 said:

Well, a payment could restart the SOL for collection, but not credit reporting.  Personally, I would try to settle with a single lump sum payment, if possible. 

Did you ask CMS if they will agree not to report to the CRAs?

I haven't spoken to them yet because I wanted your opinion/thoughts on it. My intention is to pay a lump some 5%, I know that's wishful thinking...lol

My main concern right now is the reporting. It would be great to not report to the CRAs but I would settle for paid settled.

 

[BV80]

25 minutes ago, MIOMH said:

I haven't spoken to them yet because I wanted your opinion/thoughts on it. My intention is to pay a lump some 5%, I know that's wishful thinking...lol

My main concern right now is the reporting. It would be great to not report to the CRAs but I would settle for paid settled.

 

Yes, I think 5% is wishful thinking.  I would ask CMS if they would agree not to report.  It doesn’t hurt to ask.  If they agree, see if they’ll put it in writing.   Who knows?  Maybe they don’t report when they don’t own an account  

In any case, no matter the amount of the settlement and the terms, it all needs to be in writing. It should state the amount agreed upon to settle the debt,  how it is to be paid (such as lump sum), and that upon receipt of that amount, the account is considered settled and paid.

BTW, what is the SOL in NY?  Is it 6 years?

[MIOMH]

30 minutes ago, BV80 said:

BTW, what is the SOL in NY?  Is it 6 years?

Yes.

[BV80]

1 hour ago, MIOMH said:

Yes.

They said because of the age of the account, they won’t sue you.  Are you sure the account was only charged off 3 to 5 years ago?

[MIOMH]

3 hours ago, BV80 said:

They said because of the age of the account, they won’t sue you.  Are you sure the account was only charged off 3 to 5 years ago?

I'm a little confuse myself.  I didn't want to use dates in order to be somewhat incognito but from the CRA is as follow.

High Balance:  2018-2021
Credit Limit: 2018-2021
Last Payment: 2017
Date closed: 2017
Maximum Delinquency of 120 days in 2018
Estimated month and year that this item will be removed 2016

Why is the estimated year that the item will be removed and what item?  I opened the account in early 2000s.

[Bulldoger]

Estimated month and year that this item will be removed 2016

why is not removed?

[BV80]

1 hour ago, MIOMH said:

I'm a little confuse myself.  I didn't want to use dates in order to be somewhat incognito but from the CRA is as follow.

High Balance:  2018-2021
Credit Limit: 2018-2021
Last Payment: 2017
Date closed: 2017
Maximum Delinquency of 120 days in 2018
Estimated month and year that this item will be removed 2016

Why is the estimated year that the item will be removed and what item?  I opened the account in early 2000s.

It makes no sense.   Does it give a date of first delinquency?

Did you get the information from your credit report on https://www.annualcreditreport.com/index.action?

[MIOMH]

4 minutes ago, BV80 said:

It makes no sense.   Does it give a date of first delinquency?

No, exactly.  Just the information I provided.  The first 30 days was late 2017, it stayed at over 120 days for 3 months and on the 4th it changed to CO mid-2018.  Two months after my last payment the account was closed.

Last Payment: 2017
Date closed: 2017
Maximum Delinquency of 120 days in 2018

 

11 minutes ago, BV80 said:

Did you get the information your credit report on https://www.annualcreditreport.com/index.action?

Yes, TransUnion.

[BV80]

40 minutes ago, MIOMH said:

No, exactly.  Just the information I provided.  The first 30 days was late 2017, it stayed at over 120 days for 3 months and on the 4th it changed to CO mid-2018.  Two months after my last payment the account was closed.

Last Payment: 2017
Date closed: 2017
Maximum Delinquency of 120 days in 2018

 

Yes, TransUnion.

Well, considering the last payment was in 2017, I don’t see how the account can be too old for a lawsuit. I would see what Equifax and Experian show.

[MIOMH]

4 minutes ago, BV80 said:

Well, considering the last payment was in 2017, I don’t see how the account can be too old for a lawsuit. I would see what Equifax and Experian show.

I recently got this credit report so I can't request without paying but I'm pretty sure I can find an Equifax from last year or so.

How does one proceed to go into settlement without admitting or acknowledging the debt to no reset SOL clock?

[BV80]

13 minutes ago, MIOMH said:

I recently got this credit report so I can't request without paying but I'm pretty sure I can find an Equifax from last year or so.

How does one proceed to go into settlement without admitting or acknowledging the debt to no reset SOL clock?

We are entitled to a free report every from each CRA.  In regard to resetting the SOL, check your state laws.  In some states, only.a signed agreement to pay will reset it.  In other states, a payment will reset it.  Usually, settlement negotiations without a signature or payment will not reset it.   But, still check your laws.

[MIOMH]

37 minutes ago, BV80 said:

We are entitled to a free report every from each CRA.

I need to contact TransUnion to see what should have been removed in 2016, which doesn't make any sense since I was in good standing until 2017.  Experian states as everyone assumed it will drop off after 2024.

 

37 minutes ago, BV80 said:

In regard to resetting the SOL, check your state laws.

I always get tripped over the wordiness of state laws.  Debt collection    6 years    CPLR 213(2).  My understanding is it will reset clock on the "implied".

New York Consolidated Laws, Civil Practice Law and Rules - CVP § 213. Actions to be commenced within six years: where not otherwise provided for; on contract; on sealed instrument; on bond or note, and mortgage upon real property; by state based on misappropriation of public property; based on mistake; by corporation against director, officer or stockholder; based on fraud

The following actions must be commenced within six years:

1. an action for which no limitation is specifically prescribed by law;

2. an action upon a contractual obligation or liability, express or implied, except as provided in section two hundred thirteen-a of this article or article 2 of the uniform commercial code or article 36-B of the general business law;

3. an action upon a sealed instrument;

4. an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein;

5. an action by the state based upon the spoliation or other misappropriation of public property;  the time within which the action must be commenced shall be computed from discovery by the state of the facts relied upon;

6. an action based upon mistake;

7. an action by or on behalf of a corporation against a present or former director, officer or stockholder for an accounting, or to procure a judgment on the ground of fraud, or to enforce a liability, penalty or forfeiture, or to recover damages for waste or for an injury to property or for an accounting in conjunction therewith.

8. an action based upon fraud;  the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.