Tolling a debt

[helenh_36]

What is the name of your state? SC, but relates to FL debt
I received a call today from an attorney's office concerning a credit card debt incurred in FL that is at least over 17 years old. The person with whom I spoke said that Bank of America is suing under tolling. I've read some on this, but I'm confused as to how this works, and whether there is anything I can do to fight it. I live on widow benefits, and my home and 11 year old car (on which they threaten to place a lien if I don't pay) are all I have.

 

[quincy]

What is the name of your state? SC, but relates to FL debt
I received a call today from an attorney's office concerning a credit card debt incurred in FL that is at least over 17 years old. The person with whom I spoke said that Bank of America is suing under tolling. I've read some on this, but I'm confused as to how this works, and whether there is anything I can do to fight it. I live on widow benefits, and my home and 11 year old car (on which they threaten to place a lien if I don't pay) are all I have.

The statute of limitations (the time within which a lawsuit must be filed) can be tolled (stopped) when someone moves out of state.

I don’t see that this would apply to a Bank of America debt.

And it appears from what you have described of your financial situation that you are judgment-proof anyway.

 

[helenh_36]

The statute of limitations (the time within which a lawsuit must be filed) can be tolled (stopped) when someone moves out of state.

I don’t see that this would apply to a Bank of America debt.

I did move out of state, but it was in 2011, well after FL's statute of limitations ran out.

 

[helenh_36]

I did move out of state, but it was in 2011, well after FL's statute of limitations ran out.

I'm sorry...Thank you for replying. What do I tell the attorney?

 

[quincy]

I did move out of state, but it was in 2011, well after FL's statute of limitations ran out.

You can respond to any call or letter you receive from the attorney that collection on the debt is time-barred - if you respond at all.

You can ignore collection calls and letters. IF you are served with a summons and complaint (i.e., you are sued), you can contact an attorney in your area to get the suit dismissed.

 

[helenh_36]

Thank you.

 

[quincy]

Thank you.

You’re welcome, helenh_36. Thanks for the thanks.

Good luck.

 

[zddoodah]

The person with whom I spoke said that [the creditor] is suing under tolling.

I'm confident that those aren't the words that this person used. Also, "is suing" meant that a lawsuit has actually been filed. Is that really true? Or is this just something that this person told you?

I'm confused as to how this works, and whether there is anything I can do to fight it.

I did move out of state, but it was in 2011

Ok...you said that the "debt [was] incurred . . . at least over 17 years old," which would mean no later than 2003. The Florida statute of limitations for breach of contract is five years from the date of accrual of the cause of action, so the SOL would have expired no later than 2008. Had you moved out of state, the SOL could have been tolled for that reason. However, since the SOL had expired at least three years before you moved, it could not be tolled for that reason. Unless there's another reason for tolling, then what you "can do to fight it" is that, if the creditor actually has filed or does file suit, you allege the SOL as an affirmative defense. Note that, if you get sued, you must file an answer and must allege the SOL as an affirmative defense. If you don't answer, the creditor could get a default judgment against you, which could prove more difficult and costly to attack.

my home and 11 year old car (on which they threaten to place a lien if I don't pay) are all I have.

An ordinary creditor can't lien anything unless it first sues you and obtains a judgment. I've never heard of a creditor pursuing a judgment lien against an automobile (especially not one that's 11 years old and, presumably, without anything that might make it unusually valuable). Additionally, a judgment lien against your home is only meaningful if you try to sell or refinance your home or have several hundred thousand dollars in equity such that it might be worthwhile and possible to force a sale.

 

[helenh_36]

I'm confident that those aren't the words that this person used. Also, "is suing" meant that a lawsuit has actually been filed. Is that really true? Or is this just something that this person told you?





Ok...you said that the "debt [was] incurred . . . at least over 17 years old," which would mean no later than 2003. The Florida statute of limitations for breach of contract is five years from the date of accrual of the cause of action, so the SOL would have expired no later than 2008. Had you moved out of state, the SOL could have been tolled for that reason. However, since the SOL had expired at least three years before you moved, it could not be tolled for that reason. Unless there's another reason for tolling, then what you "can do to fight it" is that, if the creditor actually has filed or does file suit, you allege the SOL as an affirmative defense. Note that, if you get sued, you must file an answer and must allege the SOL as an affirmative defense. If you don't answer, the creditor could get a default judgment against you, which could prove more difficult and costly to attack.



An ordinary creditor can't lien anything unless it first sues you and obtains a judgment. I've never heard of a creditor pursuing a judgment lien against an automobile (especially not one that's 11 years old and, presumably, without anything that might make it unusually valuable). Additionally, a judgment lien against your home is only meaningful if you try to sell or refinance your home or have several hundred thousand dollars in equity such that it might be worthwhile and possible to force a sale.

The first person I spoke to implied that the liens were pending within a suit. I checked the county court, and there was nothing. I told this to the second person I spoke to, and she changed it to 'planning'. I told her what Quincy told me here, and that they could try in court if they wanted to. Since I haven't received anything from them as they claimed, I told her to make sure to send anything certified. She laughed and said, "Oh, you'll be served." Now I thinking that they were trying to scare me. Believe me, if they do try, I will respond. I may be old, but I still have a lot of fight in me!
Thank you

 

[quincy]

The first person I spoke to implied that the liens were pending within a suit. I checked the county court, and there was nothing. I told this to the second person I spoke to, and she changed it to 'planning'. I told her what Quincy told me here, and that they could try in court if they wanted to. Since I haven't received anything from them as they claimed, I told her to make sure to send anything certified. She laughed and said, "Oh, you'll be served." Now I thinking that they were trying to scare me. Believe me, if they do try, I will respond. I may be old, but I still have a lot of fight in me!
Thank you

IF you are served, you will use the statute of limitations as a defense to the suit.

Debt collection agencies often operate on the knowledge that many debtors will not respond to a lawsuit or show up in court. They hope to get default judgments which they then can take steps to enforce.

Aggressive debt collectors generally can be stopped by equally aggressive attorneys. You did not mention your age but if you are a senior citizen, you could find free legal representation in your area - if it comes to that.

I suggest that you do not answer their calls or respond to their letters. You need only respond if you are served with a complaint, indicating that a lawsuit has been filed against you.

 

[zddoodah]

Now I thinking that they were trying to scare me.

A couple of the things you wrote previously smack of typical debt collector scare tactics. The idea is to induce a reaction along the lines of, "I don't want to get sued, so I'd better pay."

One thing to keep in mind that it is not unheard of (I won't go so far as to say "not uncommon") for someone to be sued and not receive the lawsuit papers but end up with a default judgment. Just keep your eyes and ears open.

 

[quincy]

helenh_36, you did not mention your age but, if you are 60 years old or older, you could find free or low-cost legal assistance through the South Carolina Department on Aging: https://aging.sc.gov/programs-initiatives/legal-assistance-seniors

An attorney can provide a buffer between you and the debt collection agency, which could be helpful to you if continued attempts to collect on the time-barred debt become harassing in nature and/or if you are sued.

 

[helenh_36]

IF you are served, you will use the statute of limitations as a defense to the suit.

Debt collection agencies often operate on the knowledge that many debtors will not respond to a lawsuit or show up in court. They hope to get default judgments which they then can take steps to enforce.

Aggressive debt collectors generally can be stopped by equally aggressive attorneys. You did not mention your age but if you are a senior citizen, you could find free legal representation in your area - if it comes to that.

I suggest that you do not answer their calls or respond to their letters. You need only respond if you are served with a complaint, indicating that a lawsuit has been filed

helenh_36, you did not mention your age but, if you are 60 years old or older, you could find free or low-cost legal assistance through the South Carolina Department on Aging: https://aging.sc.gov/programs-initiatives/legal-assistance-seniors

An attorney can provide a buffer between you and the debt collection agency, which could be helpful to you if continued attempts to collect on the time-barred debt become harassing in nature and/or if you are sued.

I am over 60. I'll keep this in mind if they decide to file. Once again....many thanks. I worked hard for years to improve my situation, and thought all of this was behind me. You have greatly helped give me peace of mind.

 

[Litigator22]

The first person I spoke to implied that the liens were pending within a suit. I checked the county court, and there was nothing. I told this to the second person I spoke to, and she changed it to 'planning'. I told her what Quincy told me here, and that they could try in court if they wanted to. Since I haven't received anything from them as they claimed, I told her to make sure to send anything certified. She laughed and said, "Oh, you'll be served." Now I thinking that they were trying to scare me. Believe me, if they do try, I will respond. I may be old, but I still have a lot of fight in me!
Thank you

What makes you think that this fight is going to take place in your bailiwick when the creditor could readily invoke Florida's "Long Arm Statute " * thereby forcing you to either appear and defend in a Florida court or suffer a default judgment. And a judgment entitled to full faith and credit in your home state?

[*] Florida Statutes Section 48.193 Acts subjecting person to jurisdiction of courts of state.—

(1)(a) A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts:
* * * *
7. Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.
____________

Incidentally, in the state of Florida the statutes of limitation applicable to all causes of action (including one in favor of Bank of America) are tolled or suspended during the absence of the defendant from the state. (F. S. 95.051 (1)(a)

 

[quincy]

Way to ruin someone’s peace of mind, Litigator.

The statute of limitations appears to have expired in Florida, prior to helenh_36’s move out of Florida. There would be no tolling.