How do "I" prove SOL is in effect?

[Zigner]

I find it quite funny that you have addressed nearly every statement I've made EXCEPT the one about the consumers who have won FDCPA lawsuits again debt collectors who sue on OOS debt.

You haven't given an example.

 

[justalayman]

Quote:
right, because they thought the SoL would save them.

What kind of idiot would not show up for court when they know they have an affirmative defense.

because they believed that simply telling the court (via the response) the suit was time barred would cause the courts to dismiss the case with no further actions. I mean, after all, it is just plain illegal EVERYWHERE to sue if the SoL has expired, right?

 

[Bosco]

You haven't given an example.

OK, here ya go.

Kimber v. Federal Financial Corporation

The court agrees with Kimber that a debt collector's filing of a lawsuit on a debt that appears to be time-barred, without the debt collector having first determined after a reasonable inquiry that that limitations period has been or should be tolled, is an unfair and unconscionable means of collecting the debt. As previously demonstrated, time-barred lawsuits are, absent tolling, unjust and unfair as a matter of public policy, and this is no less true in the consumer context. As with any defendant sued on a stale claim, the passage of time not only dulls the consumer's memory of the circumstances and validity of the debt, but heightens the probability that she will no longer have personal records detailing the status of the debt. Indeed, the unfairness of such conduct is particularly clear in the consumer context where courts have imposed a heightened standard of care -- that sufficient to protect the least sophisticated consumer. Because few unsophisticated consumers would be aware that a statute of limitations could be used to defend against lawsuits based on stale debts, such consumers would unwittingly acquiesce to such lawsuits. And, even if the consumer realizes that she can use time as a defense, she will more than likely still give in rather than fight the lawsuit because she must still expend energy and resources and subject herself to the embarrassment of going into court to present the defense; this is particularly true in light of the costs of attorneys today.

Klewer v. Cavalry Invs., L.L.C.

2002 U.S. Dist. LEXIS 1778 (W.D. Wis. Jan. 30, 2002). Wisconsin’s six-year statute of limitations for contract, Wis. Stat. § 893.43, had run effectively extinguishing the debt according to Wisconsin decisions, not just the judicial remedies available to collect the debt as in most states. Thus, the collection letter misrepresented the legal status of the debt in violation of the FDCPA.

Shorty v. Capital One Bank

90 F. Supp. 2d 1330 (D.N.M. 2000). Sending a legally sufficient debt validation notice to a debtor without notifying the debtor that the debt was time-barred by the statute of limitations did not violate § 1692e(2)(A), misrepresenting the status of the debt. It would be a violation to threaten suit on a time-barred debt.

Any other questions?

 

[Zigner]

Yes -

Please explain why it is illegal to sue on a time-barred debt (you made that blanket statement). Perhaps you should just admit that it is NOT (as a blanket statement) illegal to sue on a time-barred debt.

 

[Zigner]

I'm not gonna bother waiting - you made a blanket statement that is false. You are wrong and were called on it. Good day to you.

 

[Bosco]

Yes -

Please explain why it is illegal to sue on a time-barred debt (you made that blanket statement). Perhaps you should just admit that it is NOT (as a blanket statement) illegal to sue on a time-barred debt.

How can I explain it any more clearly than I already have? How about you just refer to the caselaw I just posted which specifically confirms my statements and proves you wrong.

 

[You Are Guilty]

How can I explain it any more clearly than I already have? How about you just refer to the caselaw I just posted which specifically confirms my statements and proves you wrong.

Actually, they are just as correct as you are. Kimber (which is not applicable in every state, so more research is needed to see if IN follows suit), only stands for the proposition that the filing of a suit outside the SOL is a deceptive practice under the FDCPA. Which, among other things, means an original creditor can do it with impunity. It also holds that while a time barred debt can't be enforced via the courts, it is not magically extinguished - it's still owed. (There's also the question of how all the contrary case law can be reconciled with Kimber's holding, but we can ignore that for now).

So your "collection suits for debts outside the SOL are illegal" claim is patently false.

 

[Bosco]

Actually, they are just as correct as you are. Kimber (which is not applicable in every state, so more research is needed to see if IN follows suit)

FDCPA suits should be brought in federal court as it is federal law.

only stands for the proposition that the filing of a suit outside the SOL is a deceptive practice under the FDCPA. Which, among other things, means an original creditor can do it with impunity.

We already know original creditors are not subject to the FDCPA. Also, the OP is dealing with a debt collector, so this point is moot.

It also holds that while a time barred debt can't be enforced via the courts, it is not magically extinguished - it's still owed.

That point was never argued here. But yes, I am well aware that only the states with a statute of repose extinguish the debts entirely.

So your "collection suits for debts outside the SOL are illegal" claim is patently false.

Ok, we'll clarify it by stating that anyone bound by the FDCPA who files suit, or threatens to file suit on an OOS debt, is in violation of the FDCPA.

Much better now.

 

[justalayman]

Ok Bosco, in the OP's contract, does it state that the laws of some state other than Indiana apply? Would that even include the SoL of that other state? and if so, is there any state with an SoL for CC debt that is in excess of the time OP is dealing with?

 

[Bosco]

Ok Bosco, in the OP's contract, does it state that the laws of some state other than Indiana apply?

You'd have to ask him. I don't access to that info.

Would that even include the SoL of that other state?

Yes.

and if so, is there any state with an SoL for CC debt that is in excess of the time OP is dealing with?

Wyoming.

 

[justalayman]

=Bosco;2239118]You'd have to ask him. I don't access to that info.

the point is, you don't know.

Yes.

Ah, so another states SoL may be applicable then?

Wyoming.

and if it was Wyoming, the SoL has not expired and the debt is very much valid, yes?


The problem with folks asking if the SoL has expired all the time is, we do not have access to items such as a contract that inserts some unkown states laws into the situation. We also don;t know if OP has lived within Indiana the entire time or just moved here. If OP lived in another state when they signed the contract, what is that states SoL. Is that states SoL applicable? Does that state have a tolling statute?

It's great to say the SoL has expired but truth be told, it's often just not that simple.

 

[Bosco]

Layman, do you even know what the hell you are arguing about? Or are these just horribly futile attempts to make a point?

the point is, you don't know.

That's the OP's problem, not mine. He's determined that the SOL is expired. If he's wrong, he has to deal with it.

Ah, so another states SoL may be applicable then?

It's a small possibility, but from reading his previous posts the OP has apparently been living in the same state for the last 10+ years, so what difference does that make?

and if it was Wyoming, the SoL has not expired and the debt is very much valid, yes?

The OP is not in Wyoming.

The problem with folks asking if the SoL has expired all the time is, we do not have access to items such as a contract that inserts some unkown states laws into the situation. We also don;t know if OP has lived within Indiana the entire time or just moved here. If OP lived in another state when they signed the contract, what is that states SoL. Is that states SoL applicable? Does that state have a tolling statute?

He didn't ask if the SOL had expired, he told us.

I'm honestly not sure why you keep trying to twist this argument off into some other direction. Even if, for some reason, the OP would have done something to toll the SOL, reset it...etc...has no bearing on the fact that filing suit (or threatening to do so) on an OOS debt is a violation of the FDCPA. At best, you're going to prove that the debt the OP allegedly owes is not OOS. That doesn't prove my statements wrong in the slightest.

 

[justalayman]

fine then, research California debt collections and how the FDCPA applies there. While you may want to claim that the FDCPA demands that suing, or even threatening to sue once a debt is OOS, the problem with that is, each states laws are what the FDCPA is applied to. In California, unless recently changed, it is not illegal to sue an OOS debt so it is not a violation of the FDCPA because it is not unfair per the California laws.

The fdcpa does not apply a standard for what is fair and what isn't in the section at hand so it must use some guideline to determine such and that guide would be the applicable states laws. The FDCPA does not say suing a person with a debt OOS is unfair, it simple states the collector cannot use unfair means to collect. In California, it is not considered unfair to sue on an OOS debt.



Since you have presented one case which of course, is only in one district, that supports your position, to make your position valid, I suggest you need all fed districts to support the same position. I'll settle for the greater percentage of the districts supporting your position. You have one. That means you only have 5 more to go.

 

[Bosco]

Say what dude?

fine then, research California debt collections and how the FDCPA applies there.

FDCPA is a federal law. It applies to all 50 states.

While you may want to claim that the FDCPA demands that suing, or even threatening to sue once a debt is OOS, the problem with that is, each states laws are what the FDCPA is applied to.

The only applicable state law is the SOL. Once the SOL has expired, the suit is now time barred. To argue otherwise would be saying that the SOL is virtually worthless.

The fdcpa does not apply a standard for what is fair and what isn't in the section at hand

It doesn't need to. Every single state has a statute of limitations, and once that SOL is expired the suit is time barred. Threatening, or filing a lawsuit on an OOS debt is a violation of the FDCPA as the caselaw I provided proves.

so it must use some guideline to determine such and that guide would be the applicable states laws.

That's right. Those state laws are the SOL that EVERY state has. Why are you failing to understand that?

The FDCPA does not say suing a person with a debt OOS is unfair, it simple states the collector cannot use unfair means to collect.

First off, it's not just unfair...it's also a misrepresentation of the legal status of a debt and taking or threatening to take action which cannot legally be taken, and that's just the short list.

Since you have presented one case which of course, is only in one district, that supports your position, to make your position valid, I suggest you need all fed districts to support the same position. I'll settle for the greater percentage of the districts supporting your position. You have one. That means you only have 5 more to go.

Actually, I provided three separate cases to support my position, and that was just from a very quick Google search. I've provided more than enough proof of my claims, so if you still feel they are wrong, YOU (and Ziggy, if he has the fortitude to come back) can offer some proof to the contrary. So far, all you and Ziggy boy have offered are horribly incorrect conclusions about basic legal principles while attempting to drag the conversation in an irrelevant direction.

Now, I wanted to save this last part for the end to show how truly out touch you are with the law. Here we go.

You said...
In California, unless recently changed, it is not illegal to sue an OOS debt so it is not a violation of the FDCPA because it is not unfair per the California laws....and you couldn't be more wrong.

California has adopted an even more protective version of the FDCPA, called called the Rosenthal Fair Debt Collection Practices Act, which was adopted in 1977. In this legal guide from the CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS, Kimber v. Federal Financial Corp. is referenced. I'll quote directly from the document linked below.

2. It is also a violation to misrepresent a debt’s character, amount or legal status. For example, it is a violation to attempt to collect a claim that is too old to be enforceable.(70)

We look up "70" as the reference note and find this...

70. In Kimber v. Federal Financial Corp. (M.D. Ala. 1987) 668 F.Supp. 1480, the court held that it is unfair under the federal
statute to file a time-barred collection suit against a consumer, and that it is deceptive to even threaten to file such a suit.

Oh but there is more.

9. Other unconscionable or unfair means. It is unlawful for a collector to use any unfair or unconscionable means to collect or attempt to collect a debt. Companies that compose and sell debt collection forms and letters (other than attorneys) are also subject to the prohibition against
unfair practices. This means that any conduct by an original creditor, debt collection agency or forms supplier that is unconscionable or unfair violates the federal statute, even if the particular conduct is not expressly prohibited by the statute.89 (On what constitutes “unfair” conduct under
California’s unfair competition law, see California’s Unfair Competition Law, Legal Guide U-8.

Now, we look up "89" as the reference provided and we find this gem.

The court found that the suit itself misrepresented the legal status of the claim by implying that the claim was lawful and that the collector would prevail. The court found that strong legal and ethical policies existed against filing suits after the statute of limitations had expired, and that the collector had no reason to believe that the statute of
limitations had been tolled. These policies, the court said, were strengthened by the federal statute’s purpose to protect even unsophisticated debtors who might pay a time-barred claim rather than assert a defense.

So there we have a document from the California Department of Consumer Affairs which specifically states that filing or threatening to file a lawsuit on an OOS is a violation of both state and federal law. These findings are supported by the Kimber case which also affirms that those actions are a violation of federal law. All this confirms the statements I have made throughout this thread and that is on top of the other two cases that I referenced.

I sincerely hope this is all the proof you could possibly need. If this doesn't make it as plain as day for you, I think you are beyond help and should probably just quit posting about legal topics altogether.

Now that we have that part out of the way, why don't you guys quit dragging the thread off topic and give the OP some help.

Or just get the hell out of the way. It don't matter much to me.

 

[TigerD]

Bosco,

You have just enough information to confuse and corrupt the innocent posters seeking help. And I think you are actually smart enough to know you are hurting people.

Perhaps you should consider law school. If you are willing to misrepresent, misconstrue and fabricate facts as well as you do, you'd make one hell of defense attorney, or prosecutor in North Carolina.

DC

PS As for feeding your argument for three pages, I'll just say you are wrong and you are welcome to lose to the CA's attorneys in court.