Sued by NCO for a 10 year old debt.

[Jinx13]

What is the name of your state? NY


I just received a summons from NCO for a Credit Card debt from nearly ten years ago. Apparently they bought the collection from the original company. I know I made payments for a short time maybe eight years ago, but could not afford to pay anything since then. I told them that repeatedly a year and a half ago when they started calling. I've read on here that if there is no payment to the original company they don't have a case. What are my options on this? I can barely make my bills let alone hire a lawyer.

 

[moburkes]

Your written response will explain, then, that you are disputing the debt because the statute of limitations has passed. Read some other posts on this forum. Your question is asked daily.

 

[Jinx13]

I'm just curious what they can actually do. My credit report is clean. I can't pay any of the fees or the original debt. Will they be able to take my car or garnish my wages?

 

[moburkes]

If you can't be bothered to spend a few minutes RESEARCHING the issue, I can't help you.

 

[Jinx13]

I have been looking. It's difficult when you don't know what you're looking for. Still rattled over being served. I just read that if you acknowledge the debt or offer to make payments over the phone that it can be reactivate the SoL. I did admit the debt, cause I'm just plain dumb, but did tell them I couldn't afford payments.

 

[Debt Guy]

I am too tired tonight. I will try to hold your hand tomorrow.

 

[Debt Guy]

OK, here is what you do:

1. Take a deep breath and chill.

2. You will need to draft a response to the summons. The statute of limitations in NY for a credit card is 6 years. This fact does not stop the creditor from suing but is merely an affirmative defense. That is why you must draft and file the response land must assert that the debt is out of statute and ask the lawsuit to be dismissed. The NY statute is (I think) Penal Law, Part 3, Title K, Article 190.50

3. Call the office of the court clerk. Tell them you have been sued on a debt that is out of statute. Ask if they have a standard form for that type of response -- some courts do. If not, ask to see a sample of a similar response. If they won't help, get back with me and I'll walk you through the response.

4. The response must be filed with the court. A copy must be mailed to the attorney for the creditor.

5. Expect that the creditor might say the debt is not out of statute for some reason. If so, you must dig in your feet and say "prove it". That might require filing other motions with the coiurt -- we can deal with that later. For now, go to www.annualcreditreport.com and order copies of all 3 credit reports. There is no charge. Do not get the on-line reports and just print them out. Insist on a paper copy by mail -- if you have to show it to the judge, you will be glad.

6. Don't sweat the fact that you talked to the CA. It is meaningless.

Now, don't you feel better?

 

[Jinx13]

Step 1 - Deep breath and chilling. Done.

Step 2 - Was about to work on the response, but wasn't sure how to go about it. Thank you for the info.

Step 3 - I'll do that this week. Thanks again.

Step 4 - Not a problem.

Step 5 - I was going to get the report and print in out. Thanks for the tip. The problem is, now that I think about it (my memory is not that great on certain things) I was approached by another company years ago and I made a few payments until I couldn't afford it. Not sure how long ago that was. Will that info be in the credit report? I was planning on going to my bank and get a record of my checks from around that time, to make sure it was over 6 years ago.

Yes, I feel much better. May you and yours be blessed with great fortune and happiness.

 

[You Are Guilty]

OK, here is what you do:

1. Take a deep breath and chill.

2. You will need to draft a response to the summons. The statute of limitations in NY for a credit card is 6 years. This fact does not stop the creditor from suing but is merely an affirmative defense. That is why you must draft and file the response land must assert that the debt is out of statute and ask the lawsuit to be dismissed. The NY statute is (I think) Penal Law, Part 3, Title K, Article 190.50

3. Call the office of the court clerk. Tell them you have been sued on a debt that is out of statute. Ask if they have a standard form for that type of response -- some courts do. If not, ask to see a sample of a similar response. If they won't help, get back with me and I'll walk you through the response.

4. The response must be filed with the court. A copy must be mailed to the attorney for the creditor.

5. Expect that the creditor might say the debt is not out of statute for some reason. If so, you must dig in your feet and say "prove it". That might require filing other motions with the coiurt -- we can deal with that later. For now, go to www.annualcreditreport.com and order copies of all 3 credit reports. There is no charge. Do not get the on-line reports and just print them out. Insist on a paper copy by mail -- if you have to show it to the judge, you will be glad.

6. Don't sweat the fact that you talked to the CA. It is meaningless.

Now, don't you feel better?

Overall, good answer, but for one little thing - a creditor suit is not a criminal case, thus, the penal law cite is off. The CPLR is where you can find the rules on answers and affirmative defenses and the other goodies one needs to answer a civil suit.

http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS

 

[Jinx13]

Thank you also You Are Guilty.... what a name, heh. That link was very helpful!

Hopefully this will be the last question I have to ask. So yes, it takes 15 days to get the official credit report in the mail. Luckily I was not home when the summons arrived so I have 30 days to serve my answer. Now I know for a fact the original credit card debt is not on my credit report. I was pre approved for a home loan last year at this time. I specifically asked about it and the mortgage agent said it was not listed and must have expired.

However, I was approached by another CA a few years after I had to stop making payments to MBNA. I payed them $50 a month for.. 3 or 4 months and just couldn't afford it anymore. My problem is I don't know what year I made the payments. I understand by doing so it will reset the SoL? If it did, would that extend the time the credit card debt would show on my credit report? Will those payments show at all on the credit report?

 

[Debt Guy]

However, I was approached by another CA a few years after I had to stop making payments to MBNA. I payed them $50 a month for.. 3 or 4 months and just couldn't afford it anymore. My problem is I don't know what year I made the payments. I understand by doing so it will reset the SoL?

I can argye yes or I can argue no on whether the SOL was reset -- it depends on the state and I am just not sure about NY.​

If it did, would that extend the time the credit card debt would show on my credit report?

No. credit reports are governed by federal law -- state law governs the SOL.​

Will those payments show at all on the credit report?

In theory, yes. In practice, perhaps not. Wait until you get the report and see what it says.


I think you need to act as if the SOL has expired and don't raise the issue of the couple of payments. But don't be surprised if the plaintiff does -- so think about how to respond.​

 

[Jinx13]

When I read that payments reset the SoL in SOME states I thought maybe I had a chance. Then I remembered I'm in NY and more than likely screwed.

The CA did mention those later payments last time I talked to them. I was kind of freaked out and didn't catch the dates. It's looking like they got me. Just waiting for the CR to show up and see what I can see.

Thank you for your reply DebtGuy, I appreciate it.

So how do I go crawling to them and work out a good payment plan? Anyone?

 

[Jinx13]

How would one find out if payments extend the SoL in their state? I must be an idiot because I'm having a hard time finding anything, including the article of NY state law that I would need to cite for pleading SoL.

 

[Chien]

Q. So how do I go crawling to them and work out a good payment plan?

A. Jinx – I don’t believe you have to think of it as crawling, if negotiation is what you decide to do. Nobody really benefits from the time and money spent in litigation, particularly if the result’s ultimately inevitable. You’ll have to decide if you feel that way about your case, but the general rule is that payment re-starts the SOL, and I haven’t found a case that will help you, even looking on sites that you probably can’t access. Don’t let that deter you from continuing to try.

If you decide to make an offer, make it to the attorney, not the debt collector (the attorney is the one you’re saving further work). Tell them that you’ve reviewed your records, there’s a possibility that the matter is not out of statute, your resources are very limited and you’d like to explore what it would take to resolve this without the possibility of a judgment. You won’t have groveled or conceded anything. You’re just opening discussions. I expect them to be receptive and, remember, you haven’t agreed to anything yet.

If that’s your choice, DC’s how-to guide to settlement makes an excellent tutorial:
https://forum.freeadvice.com/showthread.php?t=300276

As to your other post, I can’t make a single link to NY statutes work tonight. Must be an ISP problem somewhere. But here is one, if you decide to keep searching while negotiating:
http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS

I believe you may be looking for Civil Practice Law & Rules 206-D and 214-D among others, judging by your post.

 

[TigerD]

If you decide to make an offer, make it to the attorney, not the debt collector (the attorney is the one you’re saving further work).

An excellent point. By the time an account goes to legal -- I am only interested in balance in full. And I won't even talk to you unless you are reading me check numbers.

DC