How do "I" prove SOL is in effect?

[eli4625]

What is the name of your state (only U.S. law)? IN
I have a collection agency calling me for payment on a CC that I have not had any contact or payment on since March of 2002. According to IN law, the SOL for CC is 6 years. The collection agency says that since they have it and are seeking repayment it is then still active and the 6 years is only good if no one seeks payment or such. How can I prove them wrong?

 

[ecmst12]

Are they suing? SOL is only a defense to a lawsuit. They are free to attempt to collect by any other legal means even if it is out of statute.

 

[eli4625]

claiming

They have said that if a repayment plan isn't set up, they will seek a garnishment via a legal action. I am trying to be proactive and get this mess to go away from any court action.

 

[justalayman]

They have said that if a repayment plan isn't set up, they will seek a garnishment via a legal action. I am trying to be proactive and get this mess to go away from any court action.

Well, they can't get a garnishment order until they go to court so actually, you want them to seek court action. That is the only place you can apply the SoL and it mean anything. Do NOT agree to a payment plan and do not make any payments.

 

[debtor2008]

DO NOT talk to them on the phone. request any communication be done only via usps mail. this way you will have written documentation.

if you have a summons/complaint, MAKE 100% sure YOU ANSWER it.
dispute it, state why you are disputing it, and make sure you get a copy of it and send them a copy via certified mail return reciept. keep the reciept usps mails back.

when u go to court your defense will be that the SOL has expired.
ask for any and all verification that the debt is still valid.
ask for validation that you
owe money to the company sueing you.....most likely charges will be dropped.

make absolutely sure that your last payment is when u say it is.
SOL starts from the day of your very last payment.

DO NOT talk to them about payment plans or the like. SOL will start all over again.

 

[Zigner]

DO NOT talk to them on the phone. request any communication be done only via usps mail. this way you will have written documentation.

if you have a summons/complaint, MAKE 100% sure YOU ANSWER it.
dispute it, state why you are disputing it, and make sure you get a copy of it and send them a copy via certified mail return reciept. keep the reciept usps mails back.

when u go to court your defense will be that the SOL has expired.
ask for any and all verification that the debt is still valid.
ask for validation that you
owe money to the company sueing you.....most likely charges will be dropped.

make absolutely sure that your last payment is when u say it is.
SOL starts from the day of your very last payment.

DO NOT talk to them about payment plans or the like. SOL will start all over again.

The advice to not ignore this is good. The rest of the post is hogwash.

 

[Bosco]

Get a tape recorder and start recording these calls. You can do that in Indiana without the out party's consent.

The collection agency says that since they have it and are seeking repayment it is then still active and the 6 years is only good if no one seeks payment or such.

Violation of the FDCPA #1. False and misleading statements.

They have said that if a repayment plan isn't set up, they will seek a garnishment via a legal action. I am trying to be proactive and get this mess to go away from any court action.

FDCPA violation #2: Threatening to take action they cannot legally take (suing on a debt with an expired SOL)

Are they suing? SOL is only a defense to a lawsuit. They are free to attempt to collect by any other legal means even if it is out of statute.

Unless they receive a cease and desist letter, but I won't advise on that one seeing as how Eli can record these calls and they seem to be a collection agency that likes to violate (big shocker, eh?)

I'd get some recordings of these goons saying things like this, and after you've racked up some violations you can do one of two things.

1) Use them as the evidence you need to sue this collection agency for their FDCPA violations.

2) Send them a copy of the tapes along with a C&D letter telling them that if you ever hear from them again, you'll be suing for these violations.

Good luck.

 

[Zigner]

Violation of the FDCPA #1. False and misleading statements.

Nope - the CA IS still allowed to attempt collection

FDCPA violation #2: Threatening to take action they cannot legally take (suing on a debt with an expired SOL)

Nope, CA CAN sue on a debt with an expired SOL


Boy, I wish other people would stop giving their hogwash answers here...

 

[Bosco]

Nope - the CA IS still allowed to attempt collection


Nope, CA CAN sue on a debt with an expired SOL


Boy, I wish other people would stop giving their hogwash answers here...

I think you might want to go read over that again Zigner, because you're the one spewing hogwash here.

 

[Zigner]

I think you might want to go read over that again Zigner, because you're the one spewing hogwash here.

Oh brother!

(with due credit to HG)

 

[Bosco]

Here, I'll even make it easy and break it down for you here.

The collection agency says that since they have it and are seeking repayment it is then still active and the 6 years is only good if no one seeks payment or such.

Violation of the FDCPA #1. False and misleading statements.

Nope - the CA IS still allowed to attempt collection

I'm not sure where you came up with this, because it has basically nothing to do with my statement, or the OP's. The violation of the FDCPA is the false and misleading statement they made when they effectively claimed that seeking repayment resets the SOL. I hope I don't need to explain to you that what the agent said was false. False and misleading = FDCPA violation. It has nothing to do with whether or not they are allowed to attempt collection or not.

They have said that if a repayment plan isn't set up, they will seek a garnishment via a legal action.

FDCPA violation #2: Threatening to take action they cannot legally take (suing on a debt with an expired SOL)

Nope, CA CAN sue on a debt with an expired SOL

Sure, they "can" sue on an OOS debt, just like I "can" commit murder, arson...etc. The ability to take an action and it's legality are not mutually exclusive, obviously. With that said, using the legal system to attempt collection of a debt which the debtor no longer has any legal to pay, is a violation of the FDCPA. That is the whole purpose of the SOL. Provide debtors with a defense of time barred debts.

 

[Zigner]

That is the whole purpose of the SOL. Provide debtors with a defense of time barred debts.

THAT is correct - the rest is still hogwash

 

[Bosco]

THAT is correct - the rest is still hogwash

No Zigner, it is most certainly not "hogwash" as you so eloquently put it. In fact, it's a very simple legal principle. You cannot legally use the courts to collect on a debt which is time barred. And, as we just covered in FDCPA 101, threatening to take action that cannot legally be taken is a violation.

I assure you, there are plenty of debt collectors out there who know that first hand.

 

[justalayman]

No Zigner, it is most certainly not "hogwash" as you so eloquently put it. In fact, it's a very simple legal principle. You cannot legally use the courts to collect on a debt which is time barred. And, as we just covered in FDCPA 101, threatening to take action that cannot legally be taken is a violation.

I assure you, there are plenty of debt collectors out there who know that first hand.

Nothing is time barred until the courts say it is time barred. That is why there are many suits lost in court to a creditor when a defendant fails to show up and the creditor receives a default judgment yet if the debtor had presented an SoL defense, the defendant would have won.

One thing a court does is determine IF the SoL has expired but to do that, there is more than a defendant saying it is. It must be proven.

and don't forget about any state that has a tolling statute which stops the running of the SoL time for some reason.

 

[Zigner]

Nothing is time barred until the courts say it is time barred. That is why there are many suits lost in court to a creditor when a defendant fails to show up and the creditor receives a default judgment yet if the debtor had presented an SoL defense, the defendant would have won.

One thing a court does is determine IF the SoL has expired but to do that, there is more than a defendant saying it is. It must be proven.

and don't forget about any state that has a tolling statute which stops the running of the SoL time for some reason.

Please be careful - you might confuse Bosco if you post accurate information!