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Lost, Hoping and May Have Arbitration Ammunition


Mumof1
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Please forgive my writing if not clear, because I’m old, recovering from a stroke and facing a soon surgery.  I’m still writing because I really need wise help. Thanks to all for allowing me to post.  

I’d like to connect with an attorney who would negotiate a settlement with an OC even though the debt is nearly 10 years old since I closed my OC account and stopped paying.  Yes, the debt is old, but it’s possible that OC would sue me anyway.

 
I wrote DV letters to the OC almost every month for nearly a decade.  In that time, the OC made many calls to my cell phone between DV letters.  It would “robocall.”  Then a real person would only get on the line when I answered.  I’m hoping those calls were TCPA violations.  Added to that, before the multitude of documented calls, I wrote the OC and asked to stop calling my cell phone.  Perhaps that might add to legal ammo.

All that said, I don’t know how to find an attorney who might have strong-debtor-advocate-national-presence, knowledgeable about arbitration and might be able to use the possible arbitration ammunition as a hammer in debt negotiations with the OC.  (Even better, an attorney who would tell the OC to write-off the debt.  Regardless, I want to avoid bankruptcy.)

Are there any affordable attorneys out there?  I don’t know how to find one in this situation, instead of attorneys  who write wills for old people.

Feeling very lost and thanks for your help to find a “debtor friend” attorney, who is familiar with this arbitration realm.

 

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By the way as a P.S.:  I'm not expecting an attorney to handle arbitration.  I'd just like to affordably hire one who will believe I could have good reasons in arbitration against the OC.  Just a negotiation chip.  I hope.  Thanks.

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1 hour ago, Mumof1 said:

Please forgive my writing if not clear, because I’m old, recovering from a stroke and facing a soon surgery.  I’m still writing because I really need wise help. Thanks to all for allowing me to post.  

I’d like to connect with an attorney who would negotiate a settlement with an OC even though the debt is nearly 10 years old since I closed my OC account and stopped paying.  Yes, the debt is old, but it’s possible that OC would sue me anyway.

 
I wrote DV letters to the OC almost every month for nearly a decade.  In that time, the OC made many calls to my cell phone between DV letters.  It would “robocall.”  Then a real person would only get on the line when I answered.  I’m hoping those calls were TCPA violations.  Added to that, before the multitude of documented calls, I wrote the OC and asked to stop calling my cell phone.  Perhaps that might add to legal ammo.

All that said, I don’t know how to find an attorney who might have strong-debtor-advocate-national-presence, knowledgeable about arbitration and might be able to use the possible arbitration ammunition as a hammer in debt negotiations with the OC.  (Even better, an attorney who would tell the OC to write-off the debt.  Regardless, I want to avoid bankruptcy.)

Are there any affordable attorneys out there?  I don’t know how to find one in this situation, instead of attorneys  who write wills for old people.

Feeling very lost and thanks for your help to find a “debtor friend” attorney, who is familiar with this arbitration realm.

 

Is this a credit card account?

If so, who is the original creditor?

When was the last time you made a payment on this account?

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Hi BV80.  Thanks so much for visiting to my post responding.

I'm concerned that OC might be hovering over the forum, but here's a bit of code answers for your questions.

Yes, cc.

OC starts with an A and likes green 

Last payment about 9.5 years ago when account closed.  Definitely OVER 9 years.  No action on closed account since then, except about sending OC simple DV letters.

Let me know if I need to send you a message to clarify.

Thanks SO much!

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4 minutes ago, Mumof1 said:

Hi BV80.  Thanks so much for visiting to my post responding.

I'm concerned that OC might be hovering over the forum, but here's a bit of code answers for your questions.

Yes, cc.

OC starts with an A and likes green 

Last payment about 9.5 years ago when account closed.  Definitely OVER 9 years.  No action on closed account since then, except about sending OC simple DV letters.

Let me know if I need to send you a message to clarify.

Thanks SO much!

They cannot legally sue you once the SOL has expired.  If they were to sue, the statute of limitations would be an iron-clad defense.

When was the last time you heard from anyone about the account?

Check your credit report.  The account should have been charged off long ago and would be past the 7-year reporting period.  

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If Michigan: the SOL are 

Contracts Written: 6 yrs. §600.5807(8); Oral: 6 yrs. §600.5807(8)

Collection of Debt on Account 6 yrs. §600.5813

Judgments10 yrs. ct. of record; 6 yrs. ct. not of record §600.5809(3)

I’d like to connect with an attorney who would negotiate a settlement with an OC even though the debt is nearly 10 years old since I closed my OC account and stopped paying.  Yes, the debt is old, but it’s possible that OC would sue me anyway."

ANS: It's possible they will sue but very very unlikely as it's past the Statutes of Limitations.  The Judge will not be kind to them for bring such a frivolous suit. Also you can then turn around and sue them.   

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Much gratitude for responses, especially thanks to BV80, with the detailed info about the SOL.  😊

BV80 question:  "When was the last time you heard from anyone about the account? " :

Answer:  After the last "missed payment" in June 2021, the OC once again called my "requested not to call" cell phone repeatedly.  I then sent it another DV.  The OC followed with a letter claiming that I still owe the balance on the account.   It seems clear that the OC believes the account is alive, despite the account closed and no payments for 9.5 years.  That's why I've been thinking I need an attorney.

BackFromTheDebt question (and thanks to your response):  "What state is this?" 

Answer:  Michigan

My questions:

1)  IS the account alive because I sent many DV letters?  (Although no payments for 9.5 years)

2)  If I find out that the account is alive on the credit report, what do I do?  Write the CR?

You couldn't know how grateful I am.

Thanks and hope you have many blessings.

 

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Thank you too, Bulldoger.  I just saw your post.

I'm VERY appreciative of your SOL info.  A judgement means a civil lawsuit judgement? 

Also thanks for the comment about a judge.  (The very idea of the OC just suing me, makes me quite worried.)  

Thanks much!

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@Mumof1 You can order free copies of your credit reports (Equifax, Experian and TransUnion) once per year. This US government video explains how:

https://www.ftc.gov/faq/consumer-protection/get-my-free-credit-report

If a debt is past the statute of limitations for filing suit to collect on it, it doesn't mean the debt goes away. It just means that IF you were sued, you would use the fact that the Michigan 6-year statute of limitations period had passed as what is called an Affirmative Defense to have the lawsuit dismissed. 

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Thanks, for the credit reports info Brotherskeeper (wish I still had a brother alive to "keep" me.  ) 🙂

When you write, "it doesn't mean the debt goes away," do you mean it's allowed on a credit report forever? 

And is OC still asking me to pay or hire a collector or attorney firm to do the same thing?

A bit confused here. 

Thanks again. 

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1 minute ago, Mumof1 said:

When you write, "it doesn't mean the debt goes away," do you mean it's allowed on a credit report forever? 

No, it is not allowed on your credit report forever. A creditor reporting to the credit reporting agencies has approximately 7.5 years to report accurate information about a debt. If the creditor has gotten a court judgment against you regarding this debt, this is a different kind of reporting. Just because you fail to pay a legitimately owed debt within 6 years in Michigan, it doesn't mean that the debt goes away. It just means that the creditor would not be able to sue you to collect on the debt and win if you assert the lapsed SOL as a defense against the suit. Because suing on a time-barred debt may be a violation of the Fair Debt Collection Practices Act (FDCPA), creditors need to be very careful that they don't run afoul of this law. The creditor can continue to ask you to repay this debt as long as the creditor follows all of the various laws to do so. You have the right to tell the creditor to stop contacting you under the FDCPA. Here's some information:  https://www.consumerfinance.gov/ask-cfpb/how-can-i-stop-debt-collectors-from-contacting-me-en-1405/

I know this is complicated. It's possible to "revive" the SOL by taking action to acknowledge the debt or make a promise to repay the debt, but this promise has to be in a writing signed by you under Michgian law. Merely asking for debt validation of the debt should not revive the SOL. 

MCL 600.5866 Revival of barred claim; written acknowledgment of obligor.
Sec. 5866.

   Express or implied contracts which have been barred by the running of the period of limitation shall be revived by the acknowledgment or promise of the party to be charged. But no acknowledgment or promise shall be recognized as effective to bar the running of the period of limitations or revive the claim unless the acknowledgment is made by or the promise is contained in some writing signed by the party to be charged by the action.

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A stop calling letter will end the calls and effectively kill the debt if it's past the SOL.

Below is my stop calling letter it has worked in the past for me.

I don't use it anymore because when I did in the past on accounts that were past their SOL the JDBs closed the accounts and I got 1099Cs. 

( 1099C is a form they send to IRS, You claim the amount on it as income but if your insolvent, owe more than you have assets then you can write it off and not have to pay tax on the money listed in 1099C)

So now I just block Collectors calls,  I ghost them all. MCM has about $8,000 dollars in old past SOL accounts still active if I were to send them a stop calling letter they would close the accounts and I be stuck paying taxes on the 8K. 

Letter:

Your Info

The debt owner's Info

 

To Whom It May Concern: 


I am writing to demand that you cease communications with me according to section [15 USC 1692c] §805(c) of the Fair Debt Collection  
Practices Act (FDCPA). 
Stop calling me or anyone associate with me at home, at work, on my cell phone, or at any other location.

In accordance with the FDCPA, now that you have received this "stop calling" 
letter, you may only contact me to inform me that you: 

•    Are terminating further collection efforts
•    Might invoke a specified remedy
•    Intend to invoke a specified remedy

Since you obviously already have my contact information, calls also made by you or your company to any third party concerning me is in violation of section [15  USC 1692c] §805(b) of the FDCPA. 

Be advised that I am keeping accurate records of all correspondence from you  
and your company, including phone calls. If you continue calling me I will file  
complaints with the Federal Trade Commission and sue you for FDCPA violations. 

Your Name
Signature 

Date

Send CMRR

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Thanks MUCH for the responses.

Two worries jump out at me:

1)  I refer to a “DV,” but I hope if I’m accurately using that term.  My letters to the OC always DISPUTES the balance on the account.

Question:  So, is that "dispute letter" still called a DV, called something else, or useless?  (One thing: I NEVER promise to pay the OC.)

2)  I forgot about that 1099 C. 

Questions:  In a “write off” situation, does the SOL—or anything--PREVENT the OC to send a 1099-C ?  (Like an attorney?)  Also, do we HAVE to claim the 1099 C on our tax returns?

Thanks so much...again!

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20 hours ago, Mumof1 said:

I wrote DV letters to the OC almost every month for nearly a decade

This debt is still with the original creditor and has not been sold to a debt buyer, correct?

Were you contacted by a collection agency for this debt?

What exactly did you write in your "DV" letters? 

Did you send any of these letters by USPS certified mail? 

Did you ever get a written reply to a "DV" letter?  

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2 hours ago, Bulldoger said:

A stop calling letter will end the calls and effectively kill the debt if it's past the SOL.

Below is my stop calling letter it has worked in the past for me.

I don't use it anymore because when I did in the past on accounts that were past their SOL the JDBs closed the accounts and I got 1099Cs. 

( 1099C is a form they send to IRS, You claim the amount on it as income but if your insolvent, owe more than you have assets then you can write it off and not have to pay tax on the money listed in 1099C)

So now I just block Collectors calls,  I ghost them all. MCM has about $8,000 dollars in old past SOL accounts still active if I were to send them a stop calling letter they would close the accounts and I be stuck paying taxes on the 8K. 

Letter:

Your Info

The debt owner's Info

 

To Whom It May Concern: 


I am writing to demand that you cease communications with me according to section [15 USC 1692c] §805(c) of the Fair Debt Collection  
Practices Act (FDCPA). 
Stop calling me or anyone associate with me at home, at work, on my cell phone, or at any other location.

In accordance with the FDCPA, now that you have received this "stop calling" 
letter, you may only contact me to inform me that you: 

•    Are terminating further collection efforts
•    Might invoke a specified remedy
•    Intend to invoke a specified remedy

Since you obviously already have my contact information, calls also made by you or your company to any third party concerning me is in violation of section [15  USC 1692c] §805(b) of the FDCPA. 

Be advised that I am keeping accurate records of all correspondence from you  
and your company, including phone calls. If you continue calling me I will file  
complaints with the Federal Trade Commission and sue you for FDCPA violations. 

Your Name
Signature 

Date

Send CMRR

The OP sent letters to the OC.  The FDCPA does not apply to OCs.

While your letter is technically fine, it is not necessary to inform debt collectors about the FDCPA or to include language from the Act.  It is their responsibility to be aware of the FDCPA requirements.  It is not the responsibility of a consumer to tell a debt collector what the Act requires.

It is also not necessary to include that one is keeping accurate records of correspondence.  They don’t care if you’re keeping records.  Once they get to the “stop calling”, they stop reading.  The “stop calling” is all they need to see.

A perfectly fine and valid cease and desist letter that accomplishes the same thing as your letter is:

“I dispute the alleged debt and demand that you cease and desist all communications.”

That’s it.  Nothing else.  

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1 hour ago, Mumof1 said:

Thanks MUCH for the responses.

Two worries jump out at me:

1)  I refer to a “DV,” but I hope if I’m accurately using that term.  My letters to the OC always DISPUTES the balance on the account.

Question:  So, is that "dispute letter" still called a DV, called something else, or useless?  (One thing: I NEVER promise to pay the OC.)

2)  I forgot about that 1099 C. 

Questions:  In a “write off” situation, does the SOL—or anything--PREVENT the OC to send a 1099-C ?  (Like an attorney?)  Also, do we HAVE to claim the 1099 C on our tax returns?

Thanks so much...again!

A debt validation (DV) letter is associated with the FDCPA.  It disputes a debt and requests validation.  If you sent a cease and desist demand, that is a demand to cease communication.  It also falls under the purview of the FDCPA.

Original creditors are not bound by the FDCPA.  That act applies only to debt collectors.

Considering the last payment was over 9 years ago, I would be very surprised if you are being contacted by the OC.   It’s possible you are being contacted by a debt buyer.

When you are contacted, does the caller say that he is specifically with the OC?  Or does he simply state that he is calling about that account?  How the caller says is it is important.

No, sending letters does not keep the account active.

 

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Yes, I would think that if no 1099C has been sent so far, it won't ever be sent.

If you do get one, it's not the end of the world.  If you are insolvent (owe more than you own), you can exclude the cancelled debt amount from your taxable income using Form 982.

 

 

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Thanks to all who responded. 

I’ll try to answer questions in order:

Yes, the debt is with the OC.  I get a bill every month.  Even so, I can’t prove I’m not contacted by a collection agency, because while I pick up the cell phone I often record the call and hear the person coming on the phone after it seems to have been called by a robocaller, (pregnant pause, then human). Then I hang up.  The only thing I hear, is a person asking if it’s me. I don't tell that person.  I leave the phone.

In the dispute letter, I basically write, “I dispute any account of amount.”

In the beginning I used certified mail but forgot during later letters.  Still, I always hear back from them by mail and I saved all the letters I wrote, and those that arrived to me.

I wrote the OC not to call in the beginning of this “trial.”  I think that one was certified.  I have the letter I sent.  They still called (and call).

THANK YOU, BV80 to write, “No, sending letters does not keep the account active.”  That’s really important to my brain.

Nobk4me, thank you so much for mentioning Form 982.  It’s amazing, to me though, that the instructions for that form is a bloody nightmare at: https://www.irs.gov/instructions/i982

Since my stroke, I don’t think I could fill out that form by using those instructions.  Anybody have simple instructions of how for an individual (not business) to fill it out when dealing with a 1099C from a CC from OC?  (What to do on which lines?)  Here’s the form: https://www.irs.gov/pub/irs-pdf/f982.pdf

I hope I answered everything and I’ve done so correctly. 

Again, I’m very grateful for your responses and more of them. Thanks and blessings, I hope!

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11 minutes ago, Mumof1 said:

Thanks to all who responded. 

I’ll try to answer questions in order:

Yes, the debt is with the OC.  I get a bill every month.  Even so, I can’t prove I’m not contacted by a collection agency, because while I pick up the cell phone I often record the call and hear the person coming on the phone after it seems to have been called by a robocaller, (pregnant pause, then human). Then I hang up.  The only thing I hear, is a person asking if it’s me. I don't tell that person.  I leave the phone.

In the dispute letter, I basically write, “I dispute any account of amount.”

 

In the beginning I used certified mail but forgot during later letters.  Still, I always hear back from them by mail and I saved all the letters I wrote, and those that arrived to me.

I wrote the OC not to call in the beginning of this “trial.”  I think that one was certified.  I have the letter I sent.  They still called (and call).

THANK YOU, BV80 to write, “No, sending letters does not keep the account active.”  That’s really important to my brain.

Nobk4me, thank you so much for mentioning Form 982.  It’s amazing, to me though, that the instructions for that form is a bloody nightmare at: https://www.irs.gov/instructions/i982

Since my stroke, I don’t think I could fill out that form by using those instructions.  Anybody have simple instructions of how for an individual (not business) to fill it out when dealing with a 1099C from a CC from OC?  (What to do on which lines?)  Here’s the form: https://www.irs.gov/pub/irs-pdf/f982.pdf

I hope I answered everything and I’ve done so correctly. 

Again, I’m very grateful for your responses and more of them. Thanks and blessings, I hope!

It makes no sense to get a bill every month for a 9-year-old debt.  Would you mind posting a copy of the latest bill with your personal information redacted.

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Thanks BV80.  I will try to post that with a scanned, redacted bill.  And yepper...over 9 years.

FYI:  For medical reasons, I'm "held hostage" from my computer for most of tomorrow, but I'll be back!  (If I survive, of course!  🙂)

Something else too:  I just learned about a national law firm that sued--maybe on behalf of an individual plaintiff--the same OC over the TCPA law.  A lawsuit against an OC that demands arbitration in its CC contract?  I've never heard of that OC being sued by an individual.  Just wondering if TCPA violations can now allow individuals to sue against an OC who instead demands arbitration?  Possible because it's TCPA?  (I hope if those sentences aren't too muddy to make my point.  My brain may not be fully recovered.  Sorry!)

Thanks again!

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Don't worry about the Form 982 unless and until you actually get a 1099C.  I doubt that you will get one.  But this is a strange situation, that they are still sending you statements after 9 years.  Are they still adding interest or other fees at this point?    That is the only reason I can think of for still sending statements.  They can't add interest, under TILA, without sending statements, if I am recalling the law correctly.

 

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BV80, I haven't yet had a chance to scan the latest bill, but will soon as I can.

nobk4me, the unpaid balance is high, which make me think about a 1099C.  I hope you're right!

I'd like to answer about the interest.

The OC has dumped a TON of interest on to the disputed balance.  Balance is very high since I closed my account and stopped payments, based upon the extra interest.

What's this about TILA?  Why would they not be able to add interest?  (I hope that's true!)

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Typically, after an account is charged off, which happens about 6 months after it goes into default,  they stop adding interest and fees.  I think the only way they can continue to add interest and fees, either before or after charge off, is if they keep sending you statements.  That is a requirement of TILA, Truth in Lending Act.  I am not a lawyer, and I am not extensively familiar with this law, but I think that's the gist of it.  Maybe others can add some enlightenment here.

Discover did keep sending me statements several years after charge off, but that didn't go on for 9 years, like you are experiencing.  And they did not add interest or fees, despite sending statements.  Is Discover the creditor here?

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