collection agency doesnt agree on the statute of limitations?

[needadvicequick]

What is the name of your state? Washington State

We were pursued for an old credit card debt that the last payment on was 4/99 We understand the statute in our
state is 3 years on a credit card debt but they say it is 6 years?

how is this possible and how can I prove the statute has run out?

 

[bigun]

How is it possible? Collection agencies will lie!
Here's a link to Wa. statutes: http://community-2.webtv.net/Y-Chat/WhyChatsCredit/page47.html

The site is run by a retired consumer lawyer and has a long section on the SOL as well as letters to send to collection agencies about the SOL. http://community-2.webtv.net/Y-chat/WhyChatsCredit/

Do you have any old bills that have a finance chrage assessed or, any old dunning letters? WHat do your credit reports show as the chargeoff date?
Keep in mind, the SOL is a cause of action. WHen you first defaulted and and never caught up FDIC regs require the acount to be chargedoff 180 days from default. Find the chargeoff date and, subtract 180 days and that'll be roughly when the last payment was made.

Check and see if they're operating legally in Wa.

http://www.lawdog.com/states/wa/st1c.htm
Go to the lawdog site and see if they're liscened in their home state {assuming they're out of state}
Finally, demand they validate the debt and show a date of last payment. Send the letter CRRR.

 

[kam2051]

They are probably trying to claim that this was a written contract (where the SOL is 6 years) or (as bigun indicates) they are attempting to lie through their teeth.

 

[needadvicequick]

I went to a lawyer when this all started an he contacted them and they had to reverse a judgment they had just gotten agaainst us because they had not given us any notice. So my lawyer ( cant afford him any longer) is saying that maybe they can use that old date they filed against us? But it was all reversed an I thought if they wanted to pursue it again they would have to start over against us which is clearly past the
sol. Even my lawyer thought that credit card debts were 6 years
untill I showed him info from this site and others. It was a credit card debt so I dont know how they can call that a written contract
rather than an open ended.

 

[bigun]

Wa. is a closed border state when it comes to collections. Do what I suggested and find out if they can even legally operate in Wa. This from a collection agency site.



VI. CLOSED BORDER STATES

If your outsourcing work contemplates cross-border collections, you must pay particular attention to state licensing statutes to ensure compliance. If the collector or attorney signing a letter is not licensed to collect debt or practice in the state in which the debtor resides, a subsequent action will commonly allege that the communication violates the FDCPA because collection of the debt, or commencement of legal proceedings, cannot legally be taken by the person sending the letter.

A. Agencies should not send dunning letters to persons residing in states where the agency cannot legally engage in collection activity. Do so and you run the risk of defending yourself in a foreign state. If an agency has special concerns regarding doing business in particular states, you may wish to provide for this in the contract, so there are no surprises to the creditor client.

B. Attorneys who send letters into states in which he/she is not licensed should have an established relationship with a local attorney who accepts referrals for commencing lawsuits in that jurisdiction. Moreover, the dunning letter should specifically outline this fact.

C. Take care to include the specific, unique notices that any given state may require, in addition to the FDCPA-required notices.

 

[Ladynred]

Using the 'written contract' deal is a typical tactic with collection agencies and sadly enough, most lawyers who are not versed in consumer protect and the TILA don't know that they are NOT written contracts. Glad to hear you enlightened your lawyer, seems a shame we have to carry a copy of the TILA in our pockets to educate lawyers and judges !!

 

[needadvicequick]

I appears that they can work in this state and after it going through several agencys over the last few years it is with one
a couple hours from my home. So all Washington state laws should apply. is it normal for them to insist that the SOl is 6 years when to me it looks like it is clearly 3? is this something they could win in court or is it just to scare us off?

 

[Ladynred]

They are most certainly trying to scare you off. You can use the SOL in court and you can defend your position that a credit card is NOT a written contract by taking a copy of the following section of the Truth in Lending Act (TILA) with you, with a copy for the judge and the plaintiff's attorney:
-------------------------------------
"TITLE 15
CHAPTER 41
SUBCHAPTER I
Part A
Sec. 1602.

(i)

The term ''open end credit plan'' means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time. "

-------------------------

Here's a link to the TILA and that section:
http://www4.law.cornell.edu/uscode/15/1602.html

THAT is the definition of a credit card !

Then you have your State statutes on the SOL:

"OPEN ACCOUNTS

3 YEARS

RCW 4.16.080

Actions limited to three years.

The following actions shall be commenced within three years:
(3) Except as provided in RCW 4.16.040(2), an action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument;see written instrument

RCW 62A.3-118
Statute of limitations.

OPEN ACCOUNTS (CREDIT CARDS) STATUTE PARAGRAPH "g" TAKEN OUT OF ORDER

(g) Unless governed by other law regarding claims for indemnity or contribution, an action

**********************************************
(iii) to enforce an obligation, duty, or right arising under this Article and not governed by this section must be commenced within three years after the cause of action accrues.
***********************************************
(a) Except as provided in subsection (e), an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.

-------------------------------------------------------
EXEMPTION FOR CREDIT CARDS TO "WRITTEN CONTRACTS"

RCW 19.36.120

Exempt agreements.

RCW 19.36.100 through 19.36.140 and 19.36.900 shall not apply to:

(1) A promise, agreement, undertaking, document, or commitment relating to a credit card or charge card; or

(2) a loan of money or extension of credit to a natural person that is primarily for personal, family, or household purposes and not primarily for investment, business, agricultural, or commercial purposes.

-----------------------------------------------------
DEFINITION OF CREDIT CARD AS "AGREEMENT" NOT CONTRACT

RCW 62A.9A-102

Definitions and index of definitions.

(a) Article 9A definitions. In this Article:

(2)(A) "Account," except as used in "account for," means a right to payment of a monetary obligation, whether or not earned by performance,

(vii) arising out of the use of a credit or charge card or information contained on or for use with the card,

(47) "Instrument" means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease, and is of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignment. The term does not include

(C) writings that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card,"

You have PLENTY of ammo, between these 2 things, to fight and prove the 3 year SOL. You need only point out to the judge that the FEDERAL TILA defines credit cards as open-ended contracts, hand him a copy of the TILA, AND then hand him a copy of your own state statutes to prove that WA state says credit cards are NOT written contracts !