What's my SOL??

[t1210]

What is the name of your state? GA

I have tried researching this for hours. I am trying to see if the SOL for my situation has expired or not. The closest I came was a post that said it wasn't clear cut as to whether or not a credit card is considered an open account. I really need to know whether or not my SOL is up or not. I have not been served a summons or anything like that, I am trying to do the right thing and payy off the old debt, but the CA wants 4 times the original credit limit. And I charged less than the credit limit back in 1999.

Below is a summary of my situation I posted somewhere else. Please advise or point me into the direction of someone who can help me.

I am in a bit of a dilemma with an old credit card debt from college. The account was opened around Sepetember of 1999 and was charged off in May 2002.

I recently contacted the collection agency and inquired about the debt. They said that the outstanding balance was currently $3800. This is shocking because the original credit limit on the credit card was only $1000. I told them that this was ridiculous and that the amount owed wasn't valid.

Here are the pertinent dates involved:
Last payment was on Sep 27 2001
The account was charged off on May 30 2002
The account was sold to the first collection agency on June 21 2003

What is the best way for me to handle this situation? The company has stated that they will not accept a settlement for the amount owed, which I find to be highly unusual.

My other question is concerning the statute of limitations in this case. The contract was originally signed in Georgia. Is this account considered an open account or a written contract? It makes a big difference seeing as though the SOL for an open account is only 4 years and 6 for a written contract. I should also mention that I currently reside in VA where the SOL for written contracts is only 5 years and only 3 for open accounts.

[seniorjudge]

Originally Posted by t1210

What is the name of your state? GA

I have tried researching this for hours. I am trying to see if the SOL for my situation has expired or not. The closest I came was a post that said it wasn't clear cut as to whether or not a credit card is considered an open account. I really need to know whether or not my SOL is up or not. I have not been served a summons or anything like that, I am trying to do the right thing and payy off the old debt, but the CA wants 4 times the original credit limit. And I charged less than the credit limit back in 1999.

Below is a summary of my situation I posted somewhere else. Please advise or point me into the direction of someone who can help me.

I am in a bit of a dilemma with an old credit card debt from college. The account was opened around Sepetember of 1999 and was charged off in May 2002.

I recently contacted the collection agency and inquired about the debt. They said that the outstanding balance was currently $3800. This is shocking because the original credit limit on the credit card was only $1000. I told them that this was ridiculous and that the amount owed wasn't valid.

Here are the pertinent dates involved:
Last payment was on Sep 27 2001
The account was charged off on May 30 2002
The account was sold to the first collection agency on June 21 2003

What is the best way for me to handle this situation? The company has stated that they will not accept a settlement for the amount owed, which I find to be highly unusual.

My other question is concerning the statute of limitations in this case. The contract was originally signed in Georgia. Is this account considered an open account or a written contract? It makes a big difference seeing as though the SOL for an open account is only 4 years and 6 for a written contract. I should also mention that I currently reside in VA where the SOL for written contracts is only 5 years and only 3 for open accounts.

Standard answer on expired SOL and/or validation and/or dispute letters. There are thousands of posts similar to yours on this forum so I have prepared a standard answer.

SOL (Statutes of limitation are DEFENSES to lawsuits; they do NOT provide a method to stop someone from suing you. This defense means when they sue you, you answer with the defense that it is barred by the SOL.)

[url]http://www.bcsalliance.com/y_debt_sol.html[/url]

[url]http://www.fair-debt-collection.com/Disputing_Collections/SoL-dispute-letter.html[/url]


Validation letter samples you can get at :
[url]www.creditinfocenter.com[/url]
and [url]www.creditboards.com[/url]

Make sure you ask for VALIDATION (and do not accept verification).


Disputes: You can write a letter of dispute to the three credit reporting agencies.

Go this website to find instructions and samples for how to dispute: [url]http://www.creditinfocenter.com/creditreports/[/url]

Sometimes errors are easy to remove and sometimes they stick like glue. It is inexpensive to try and not difficult.

I am NOT a creditor-debtor lawyer; stand by for further help.

I am NOT vouching for the accuracy of these websites!

Debt settlement:

[url]http://forum.freeadvice.com/showthread.php?t=293829[/url]

[t1210]

Judge,

Thank you for the reply, but I am already aware of what you posted. In fact I got some info out of your standard response last week. I have been trying to find this out for weeks. I feel like I'm an expert now in collection procedures, so those aren't my concern. I really need to know what my SOL is in my situation. None of the info can giv eme a definate answer. All I get are "unsure" responses.

[t1210]

Can no one answer my question regarding which SOL applies in my case? THis is really getting frustrating. I never thought it would be so hard to get an answer to what I though was a simple question.

[debtcollector`]

Originally Posted by t1210

I have tried researching this for hours. I am trying to see if the SOL for my situation has expired or not. The closest I came was a post that said it wasn't clear cut as to whether or not a credit card is considered an open account. I really need to know whether or not my SOL is up or not. I have not been served a summons or anything like that, I am trying to do the right thing and payy off the old debt, but the CA wants 4 times the original credit limit. And I charged less than the credit limit back in 1999.

Interest and late fees and over limit fees... It adds up.

Originally Posted by t1210

I am in a bit of a dilemma with an old credit card debt from college. The account was opened around Sepetember of 1999 and was charged off in May 2002.

I recently contacted the collection agency and inquired about the debt. They said that the outstanding balance was currently $3800. This is shocking because the original credit limit on the credit card was only $1000. I told them that this was ridiculous and that the amount owed wasn't valid.

Interest and late fees and over limit fees... It adds up.

Originally Posted by t1210

Here are the pertinent dates involved:
Last payment was on Sep 27 2001
The account was charged off on May 30 2002
The account was sold to the first collection agency on June 21 2003

What is the best way for me to handle this situation?

The best way is to pay it, but that isn't what you are asking is it?

Originally Posted by t1210

The company has stated that they will not accept a settlement for the amount owed, which I find to be highly unusual.

Why should they. You owe it and are probably about to be sued.

Originally Posted by t1210

My other question is concerning the statute of limitations in this case. The contract was originally signed in Georgia. Is this account considered an open account or a written contract? It makes a big difference seeing as though the SOL for an open account is only 4 years and 6 for a written contract.

It is a written contract. It is an open account. It really depends on the judge and your ability to persuade him. Although, more and more judges are ruling credit cards to be written contracts.

Originally Posted by t1210

I should also mention that I currently reside in VA where the SOL for written contracts is only 5 years and only 3 for open accounts.

There is the big key. The SOL clock stopped running the minute you left GA. So the SOL is either up in 2007, 2008 or a much longer explaination that you really should talk to an experienced attorney about.

DC

[t1210]

The best way is to pay it, but that isn't what you are asking is it?

I am asking to pay a reasonable amount.


Why should they. You owe it and are probably about to be sued.

Great.


It is a written contract. It is an open account. It really depends on the judge and your ability to persuade him. Although, more and more judges are ruling credit cards to be written contracts.

How can this even happen? The majority of Americans have a credit card and you would figure that Congress would take the time to clearly define which one it is. So you are saying that it's just "luck of the draw" when I go to court??


There is the big key. The SOL clock stopped running the minute you left GA. So the SOL is either up in 2007, 2008 or a much longer explaination that you really should talk to an experienced attorney about.

What does this mean?? Under no circumstances could the SOL be up in 2008. The longest it could possibly be is Sept of 2007. The SOL is clearly defined as beginning on the date of the first delinquincy that caused the charge off. In my case that is Sept of 2001, the date of last payment prior to the charge off.

[Ladynred]

What DC is trying to tell you is that the SOL TOLLED - meaning it STOPPED - when you left GA.
That is state law

How can this even happen? The majority of Americans have a credit card and you would figure that Congress would take the time to clearly define which one it is. So you are saying that it's just "luck of the draw" when I go to court??.

Most American's don't even know that an SOL exists, let alone know what it is. NO Congress has NOT defined anything... it's all been left up to STATE LAW.

In GA judges ARE ruling that credit cards are open and are subject to the 4 year SOL. A VA judge may not agree.

While the attorney suing you COULD try to use the SOL from GA, chances are they wouldn't. If you've not been sued yet, then I would use the SOL for your CURRENT state and if it has expired, tell the CA to pound sand.

[t1210]

Lady, thank you for your reply.

So what would you advise me to do next? As I said there are no legal proceeedings in the works, that I know of. I currently live in VA where the SOL for an open account is 3 years, and 5 years for written contracts. In GA, where the credit app was originally signed, the SOLs are 4 years for open and 6 years for written.

I recently moved to VA to start a new job and I permanently reside here now. So as you can see, I am way outside of the SOL for open accounts in VA or GA. If the SOL for a written is considered, I only have until Sept of this year until it expires in VA and Sept of 2007 if the GA law applies.

It is my understanding that the relevant SOLs are the ones for the state in which the contract was originally signed. Does this apply to a "vacation situation?" Say you are on vacation and sign up for a credit card half way accross the country and then all this happens.

Also, what exactly do you mean when you say the SOL "stopped"? Does this mean it only runs when you reside in the state you signed the contract in? Sorry if that sounds dumb. Or are you saying that when I moved, the SOL for my current state took over?

I really wish I could get some concrete answers to all of this. I'm thinking my best bet might be to pay a lawyer $200-$500 to do all of this. I would almost pay that just to get concrete answers to the SOL.

So what should I do next? Send a validation letter? Send an expired SOL letter? I'm really trying to not make any more mistakes.

[debtcollector`]

1. As you live in VA, yu can be sued in either VA or GA. If you are sued in VA, either the VA or the GA laws may be applied.

2. Regardless, of where you are sued, the clock on the SOL stopped ticking the minute you left the state. I am going to guess that 80 percent of judges are going to rule that a credit card is a written contract. For your state, I don't know how they will rule. The judge could have just received his credit card bill and be in a bad mood. Or not.

3. You feel you should only have to pay a reasnable amount. So does the creditor. The contract you signed agreed to a reasonable amount and you failed to pay. Reasonable is balance in full.

4. Even when the debt goes out of the SOL, that doesn't mean you no longer owe it. You still owe the debt. It will still be on your credit report and you still can be sued. SOL is only an affirmative defense.

DC

[Ladynred]

Unfortunately, you're not likely to get the 'concrete' answer you want from a lawyer either.

Last payment of Sep 2001 would mean, worst case, you won't be out of the woods until Sept of this year (written contract SOL for VA). If you're not sued, it really doesn't make a whole lot of difference. The junk debt buyer/colleciton agency that has this debt has NO PAPERWORK whatsoever. Chances are pretty damn good that they have no clue that you opened the account in GA. They're not likely to know any better should you send them a C&D based on VA law. You could very well wait a few months until Oct 1 2006 and not have much to worry about except more letters or phone calls.

If you moved to VA AFTER Sept 2005, then the GA SOL DID expire, and GA judges ARE agreeing with the shorter SOL for credit cards. If that is the case, send them a cease and desist letter and tell them to get lost.

[t1210]

I moved to Virginia about 2 months ago if this helps. So do you think my best option is to wait until the first of October and then send them a C&D letter based on an expired SOL? As you said they most likely don't have any paperwork to validate the debt. And if that is the case they don't have many LEGAL options do they?

It's my understanding that the CA must validate the debt, if you request it, before any furthur steps can be taken. I'm not saying they do this, but isn't that what they are SUPPOSED to do? And if in fact they don't follow proper procedure can't that be used in my defense in addition to the SOL argument?

The company that has my account is Credigy Receivables based out of GA. They are known for many illegal acitvities and violations of the FDCPA.

[Ladynred]

It's my understanding that the CA must validate the debt, if you request it, before any furthur steps can be taken.

Point of fact they NEVER HAVE to validate, they can simply choose to sell the debt to some other CA or junk debt buyer and wash their hands of it. All they are REQUIRED to do is cease collection activity, IF you request validation within the initial 30 day period. As already explained, requesting validation DOES NOT stop them from suing.

The FTC weighed in on this in 1997:

FDCPA Staff Opinion: LeFevre-BergerUNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
Division of Credit Practices
Bureau of Consumer Protection

May 29, 1997
S. Joshua Berger
AAA - 399, Caller Box 10001
Saipan, MP 96950
Dear Mr. Berger:
This is in reply to your letter of March 3, 1997, concerning several
questions about the Fair Debt Collection Practices Act (FDCPA) (copy
enclosed ). Our answers are as follows:
1) Since the courts deem you to be a "debt collector," even though all
you do is file suit against the consumer, you must comply with Section
809(a) of the FDCPA, i.e., you must provide the validation notice within
five days of your initial communication with the consumer, even if the
communication is connected with the suit.

2) We interpret the "thirty-day period" as a period within which
consumers must dispute their debts in writing in order to avail
themselves of their Section 809(b) rights, but not as a "grace" period.
Thus, we believe that there is nothing in the Act that prevents you from
filing suit during this period, so long as you do not make any
representations that contradict Section 809(b).

3) Because of Heintz v. Jenkins, all pleadings must be considered
"communications" if they convey "... information regarding a debt
directly or indirectly to any person through any medium."
I hope this answers your questions.
Sincerely,
John F. LeFevre
Attorney

As for your SOL, since you moved out of GA AFTER the SOL there had expired, then you're pretty safe to send them a C&D letter and tell them to get stuffed.

[t1210]

I spent the last few days calling lawyers here in VA. Over half of them said to just not do anything, and to avoid all contact with the CA. Obviously this doesn't mean ignore them if they send me letters, etc. Some of them recommended sending a C&D letter, others didn't.

As for the SOL issue. Most of them said that if the CA sued then they would most likely sue in my current state and if they did, the SOL for my current state would apply. Unless there is a provision in GA law statin that another state's SOL can't be used with my type of account. Which is good for me. The funny thing was that they all had different opinions and interpretations of the law. And these were all consumer debt attorneys. This whole thing is really frustrating. Mainly due to the lack of consistency.

I don't know what I should do next. I think I'm just going to ignore them totally unless they send me some letter indicating legal action. Then I will send a validation letter along with a letter stating that I intend to use a SOL defense if they seek legal action.

Does this sound good to you guys?

[debtcollector`]

Originally Posted by t1210

I spent the last few days calling lawyers here in VA. Over half of them said to just not do anything, and to avoid all contact with the CA. Obviously this doesn't mean ignore them if they send me letters, etc. Some of them recommended sending a C&D letter, others didn't.

As for the SOL issue. Most of them said that if the CA sued then they would most likely sue in my current state and if they did, the SOL for my current state would apply. Unless there is a provision in GA law statin that another state's SOL can't be used with my type of account. Which is good for me. The funny thing was that they all had different opinions and interpretations of the law. And these were all consumer debt attorneys. This whole thing is really frustrating. Mainly due to the lack of consistency.

I don't know what I should do next. I think I'm just going to ignore them totally unless they send me some letter indicating legal action. Then I will send a validation letter along with a letter stating that I intend to use a SOL defense if they seek legal action.

Does this sound good to you guys?

Or you could pay your bill. It is the right thing to do.

[t1210]

debtcollector,

You are a never ending supply of great advice. I see you giving people general recommendations all the time on here. I'm not knocking you, I just feel that if you're not going to really try and help somone, then don't reply at all. Why would anyone be on this forum at all if they were simply going to pay their bills and not fight them?