Statute of Limitations on Assignment of Credit Card Debt

[ez2love]

What is the name of your state? California

My daughter had a credit card debt that was charged off in May 2002. The account was assigned to a collection agency. The collection agency opened the account in April 2003. On April 14, 2005, they coerced my daughter into signing a promissory note promising her that was the only way she could lower a very high interest rate (which they wouldn't tell her how much it was), get the balance down so that she could settle the case with them. She paid them $1400 and missed one payment in December 2005. In January 2005, they called her and asked where was the payment. She finally got smart and asked how much did she owe. The Collection Agency quoted the same amount that she started with. She said Oh No, I need an accounting of what I owe and how my money is distributed. He hung up on her screaming that he was going to sue. The next call was from an attorney who told her she had to pay. She said No - not until she got an accounting. He too hung up on her screaming he was going to sue. They filed suit on July 27, 2006 quoting a totally different amount she owed. In fact, all through 2005, in letters from them and credit reporting agencies, the collection agency has quoted amounts ranging from $300 to $2,000 differences and none below the original amount she owed.

Question: Does the promissory note have to have the scheduled payments and interest on the loan spelled out? This one did not. If not, how do we proceed.

Question: Has their statute of limitations run out?

Question: Should I spell out in her Answer all these different amounts quoted or wait for the hearing?

Question: How should the Answer be formulated.

BTW: The Answer is due Friday, August 25th.

Thank you for your help.

ez

[Debt Guy]

Question: Does the promissory note have to have the scheduled payments and interest on the loan spelled out? This one did not. If not, how do we proceed.

A. This really depends on state law and I have no idea what CA law says. Sometimes a note will just say the total amount, the interest rate and the payment amount. The implication is that you make the payment until the debt is retired in full. In my opinion, an amortization schedule is not required. But, again, I don't know what CA says. Assuming, the note contains the 3 items I mentioned, then anyone should be able to figure out where they are on the note at any given point in time.

Question: Has their statute of limitations run out?

A. No. The SOL on the note began to run with the default in 2005. The note superceded the credit card.

Question: Should I spell out in her Answer all these different amounts quoted or wait for the hearing?

A. I don't know CA rules of procedure. Seems to me the safe course of action would be to make the answer complete and be prepared to explain everything at the hearing.

Question: How should the Answer be formulated.

A. I don't know CA rules of procedure. Some states have sample answers available on line. At minimum, you can ask the court clerk to let you look at a real answer and use that as a "go-by".

You sure waited until the last minute to attack this problem. I hope you've not shot yourself in the foot.

[marc1236]

This will explain what every law in every state says.Also,will give you more information about California.
[url]http://fair-debt-collection.com/SOL-by-State.html#5[/url]

[Debt Guy]

Marc

I have to disagree. The site you linked to does not explain what every law in every state says -- there are many laws in many states that are not even touched on in the site -- -- for example, I don't see anything that helps the OP determine the minimum elements of a valid note in CA (which was the guts of his question).

The information on the site is generally accurate. Here is another link. I like to have more than one source of information -- helps find the bad info.

[url]http://www.1-collection-attorney.com/[/url]

Also, I am not exactly sure how either link will help the OP figure out what to do -- remember that the note signed by the daughter superceded the credit card -- since default on the note was in 2005, SOL has a long ways to go.

DG