How is SOL measured

[marcumw]

What is the name of your state? MI

I had a credit card account go delinquent in November 1994. Asset Acceptance LLC purchased the debt in 2000. And was able to obtain a default judgment on 1/16/01. They are now attempting to garnish my wages which is how I learned about the original judgment.

(1) I had moved to Illinois in 2000 so I never received a summons.

(2) Also the judgement NEVER showed up on any of my credit reports (How can that happen??)

My main question is how do you measure the elapsed time for an SOL defense? Does it end when they first file with the court, or is it the actual date the judgment is final (ie 1/16/01 above).

Thanks in advance

 

[JETX]

I had moved to Illinois in 2000 so I never received a summons.

Probably not relevant. Check the 'notice of service' with the original court to see if you were properly 'noticed' as provided by state law.

Also the judgement NEVER showed up on any of my credit reports (How can that happen??)

Very simply. Most courts don't automatically report judgments.... and only a few judgment creditors do.

My main question is how do you measure the elapsed time for an SOL defense? Does it end when they first file with the court, or is it the actual date the judgment is final (ie 1/16/01 above).

The 'affirmative defense' of SOL tolling MUST be made at the hearing.
Once the judgment is rendered.... a new 'judgment SOL' starts on that date. In your state, the SOL for a judgment is 10 years.

 

[Debt Guy]

SOL is measured from the date of default. Generally, default occurs 30 days after you made your last payment.

If the creditor already has a default judgment, then you really are too late to raise SOL as an affirmative defense. That defense should have been raised at the time of the lawsuit and would have at that time caused the suit to be dismissed and thus no judgment could have existed. Since you did not raise it then, you lost the chance. By the way, in some states moving out of state tolls the SOL.

You might have an argument to have the judgment vacated based on improper service of process. You would need to know the state law to determine what forms of service are allowed in your state. Then you would need to go to the courthouse and look at the file to see how the creditor claimed service was made. If the service was faulty, then you file a motion to vacate the judgment and that makes the creditor start all over (assuming, of course, the judge approves your motion.)

Moving is, in my opinion, a tricky issue. If you were sued in Illinois and the creditor did not know that you left the state and Illinois allows service to be accomplished by mail to last know address .... then you don't have a beef that will convince a judge. If you were sued in Illinois and the creditor knew you lived in Timbuktu ... then you might have a winning argument.

I think you need a qualified debtor/creditor attorney.

As to your comment on the credit report not reflecting the judgment. Two thoughts. First, credit reports are often wrong anyway and it should be no surprise that things are left off as often as wrong things are added. Second, there is no requirement that the creditor report to the CRA in any situation -- it is purely voluntary -- most do for business reasons but you don't have any standing to complain. Third, (I know I only said two thoughts but another one just occurred) credit reports exist for the benefit of creditors in order to help the creditor judge the risk of lending to a particular person -- credit reports do not exist for the benefit of debtors.

If you would please, just because I like to see how situations resolve themselves, please email me [email protected] for what happens in your situation.

Good luck and best wishes.

 

[JETX]

SOL is measured from the date of default. Generally, default occurs 30 days after you made your last payment.

WRONG!!
The SOL 'clock' on a debt starts on the day AFTER the DOLA (Date of Last Activity) on an account. This 'activity' could be payment, charge or even 'breach of payment agreement'.

By the way, in some states moving out of state tolls the SOL.

More accurately.... leaving most states puts a FREEZE on the SOL 'clock'.

 

[marcumw]

Thanks again for the advice. Looks like I'll just have to settle.