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Sued in Texas but past SOL


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I was served yesterday by a debt buyer for a credit card. They filed the suit on 03/28/24. Last payment was on 02/16/2020. That payment was for the payment due on 01/15/2020. So basically when I made this payment on 02/16/2020, I was still behind because I owed for February 15th. The credit card company reported me as 30 days late in feb 2020 on my credit reports. I have never made another payment since 02/16/2020. In the lawsuit papers, they have a copy of a credit card statement which shows my last payment was on 02/16/2020, however they refer to the charge off date in September 2020 throughout the lawsuit.   They filed past the SOL, correct? 

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2 hours ago, smallfry77 said:

I was served yesterday by a debt buyer for a credit card. They filed the suit on 03/28/24. Last payment was on 02/16/2020. That payment was for the payment due on 01/15/2020. So basically when I made this payment on 02/16/2020, I was still behind behind because I owed for February 15th. The credit card company reported me as 30 days late in feb 2020 on my credit reports. I have never made another payment since 02/16/2020. In the lawsuit papers, they have a copy of a credit card statement which shows my last payment was on 02/16/2020, however they refer to the charge off date in September 2020 throughout the lawsuit.   They filed past the SOL, correct? 

You have to look at the credit card agreement see when you are in default.  it might say 30/60/90 days after last payment, or 30/60/90 days after CC missed payment, may used words days not current days past due etc...  Your so close it hinges on the contract wording.  And of course if you made any returns which were credited later too or payments you may have forgotten.  

But on the surface it looks like you have a good chance it is past SOL

 

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4 minutes ago, Bulldoger said:

You have to look at the credit card agreement see when you are in default.  it might say 30 days after last payment, or 30 days after CC missed payment, may used words days not current days past due etc...  Your so close it hinges on the contract wording.  And of course if you made any returns which were credited later too or payments you may have forgotten.  

 

Thank you so much for your response. No activity whatsoever occurred after 02/16/20.  No charges, payments, returns or anything else.  The original creditor is NFCU. Last payment was 02/16/20 however the account was reported as 30 days past due in Feb 2020 because the Feb payment went towards Jan 2020's payment due.  

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6 hours ago, smallfry77 said:

Thank you so much for your response. No activity whatsoever occurred after 02/16/20.  No charges, payments, returns or anything else.  The original creditor is NFCU. Last payment was 02/16/20 however the account was reported as 30 days past due in Feb 2020 because the Feb payment went towards Jan 2020's payment due.  

If it were me, I would countersue for a violation of the Fair Debt Collection Practices Act, 15 U.S. Code § 1692e(2)(A):

(2)The false representation of—

(A) the character, amount, or legal status of any debt;

The plaintiff has misrepresented the legal status of the debt.  You should contact a consumer attorney in your area and explain the situation.  There may be a TX consumer law that has also been violated.  

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5 hours ago, BV80 said:

If it were me, I would countersue for a violation of the Fair Debt Collection Practices Act, 15 U.S. Code § 1692e(2)(A):

(2)The false representation of—

(A) the character, amount, or legal status of any debt;

The plaintiff has misrepresented the legal status of the debt.  You should contact a consumer attorney in your area and explain the situation.  There may be a TX consumer law that has also been violated.  

You are very kind.  Do you have any recommendations for an attorney in Texas?  I am in Dallas.  A few years ago I hired an attorney that had great Google reviews but after i paid them, they would not respond to calls or emails. It was a disaster and so I don't really know where to turn.  Appreciate any guidance.

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5 minutes ago, smallfry77 said:

You are very kind.  Do you have any recommendations for an attorney in Texas?  I am in Dallas.  A few years ago I hired an attorney that had great Google reviews but after i paid them, they would not respond to calls or emails. It was a disaster and so I don't really know where to turn.  Appreciate any guidance.

I’m sorry, but I’m not from Texas.  Here is the link to the National Association of Consumer Advocates website.  It has an attorney search function.  Just enter your location and the type of attorney you need.  I would suggest “debt defense”.

https://www.consumeradvocates.org/findanattorney/

You could also check the TX Bar Association website.  It may offer a search, as well.

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Is it a small claims case or is it in County Court?  You can probably handle this yourself in Small Claims.  Like your past experience the Attorneys can be very non responsive and will try to negotiate a settlement vs fighting it.  

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1 hour ago, Howie said:

Is it a small claims case or is it in County Court?  You can probably handle this yourself in Small Claims.  Like your past experience the Attorneys can be very non responsive and will try to negotiate a settlement vs fighting it.  

If the SOL defense is determine to be correct by a local consumer attorney they would most likely take case and be paid by JDB when they win the the case under SOL defense and the Fair Debt Collection Practices Act counterclaim.  The op would get $1000 plus attorney fees judgement against JDB.    

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1 hour ago, Bulldoger said:

The op would get $1000 plus attorney fees judgement against JDB. 

Maybe.  The maximum award for an FDCPA violation is $1500.  The problem that comes into play is the law firm committed the violation and all the JDB has to do is fire the law firm leaving the OP to pursue the FDCPA claim independently.  The second possible issue is how much is the lawsuit for?  If it is less than $1500 then they may agree to a mutual walk away.  If the debt is far more than the $1500 maximum award then they will likely choose to continue and simply try both together and if both sides "win" their case deduct what the OP is awarded from the debt case verdict and move on to collecting on their reduced judgment.

Another problem is attorneys that take a case on contingency don't just do it for the court awarded attorney fees.  Most if not all charge a percentage of the award to their client as well.  That can be as high as 40%.  They also will not take the debt defense case on contingency and that would solidify their expectation of a percentage of any award.  

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19 minutes ago, Clydesmom said:

Maybe.  The maximum award for an FDCPA violation is $1500.  The problem that comes into play is the law firm committed the violation and all the JDB has to do is fire the law firm leaving the OP to pursue the FDCPA claim independently.  The second possible issue is how much is the lawsuit for?  If it is less than $1500 then they may agree to a mutual walk away.  If the debt is far more than the $1500 maximum award then they will likely choose to continue and simply try both together and if both sides "win" their case deduct what the OP is awarded from the debt case verdict and move on to collecting on their reduced judgment.

Another problem is attorneys that take a case on contingency don't just do it for the court awarded attorney fees.  Most if not all charge a percentage of the award to their client as well.  That can be as high as 40%.  They also will not take the debt defense case on contingency and that would solidify their expectation of a percentage of any award.  

It’s in county court- for a little over $28,000

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1 hour ago, smallfry77 said:

It’s in county court- for a little over $28,000

Ouch!!  Make sure what ever you do, you file a timely answer with the affirmative defense of it being time barred.   

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12 hours ago, smallfry77 said:

It’s in county court- for a little over $28,000

Okay so a counter claim for $1500 isn't going to make them blink.  The good news is you have a gold plated defense in the statute of limitations.  I would not rule out the FDCPA case against the JDB and the law firm as a separate issue regardless.  I would consult a consumer attorney ASAP because a well drafted answer can stop this cold.  Most will do a first consult for little or no charge.  

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  • 3 weeks later...

So, this creditor or debt collector in Texas, is suing you on a time-barred debt? Texas has a law that was enacted in 2019, which makes it illegal for a debt buyer to file a suit on a time barred debt. See Texas Finance Code § 392.307. If I were in your position and didn't raise this issue as an affirmative defense in my answer, I would file an amended answer and include this as an affirmative defense. Just to really "stick it to the attorney", I would probably send him a nastygram telling him I would file a complaint with the State Bar of Texas.

Reading the Texas Finance Code § 392.307 I could make a payment today even on the debt, tell the collector the debt is mine and I am never paying a dime on it. None of these actions restart the clock on the time barred debt.

Just don't even worry about the FDCPA, maximum statutory damages aren't guaranteed to anybody. You could get $100 plus reasonable attorney's fees in the end. Just get out from the suit and take the win. When it comes to the credit reporting, the date you were reported as late, is exactly that. The date it was reported. If you were thirty days late for January, then you were 30 days late. So if the payment was due 1/1/2020 and you paid 02/16/2020, then you were what, thirty days past due, right? So there isn't a violation for that.

 

I am not an attorney and nothing i have said is construed to be legal advice.

 

 

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On 4/2/2024 at 11:03 PM, Bulldoger said:

You have to look at the credit card agreement see when you are in default.  it might say 30/60/90 days after last payment, or 30/60/90 days after CC missed payment, may used words days not current days past due etc...  Your so close it hinges on the contract wording.  And of course if you made any returns which were credited later too or payments you may have forgotten.  

But on the surface it looks like you have a good chance it is past SOL

 

Please do us all a favor and show us ANY "credit card agreement" that states exactly when you are in default as you are describing. You are in "default" when the date comes a payment is due and you don't pay the payment. Most creditors will wait until you are at least 30 days past due because they "have to" wait until you "are" 30 days past due in order to report it as being 30 days past due.

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50 minutes ago, alwayswinning36 said:

Please do us all a favor and show us ANY "credit card agreement" that states exactly when you are in default as you are describing. You are in "default" when the date comes a payment is due and you don't pay the payment. Most creditors will wait until you are at least 30 days past due because they "have to" wait until you "are" 30 days past due in order to report it as being 30 days past due.

I said it might  say 30/60/90 days after last payment I had one that said default was 30 daysafter missed payment,  just making a point that OC has to  see what the agreement states. 

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