CC debt past SOL in Florida...

[Rog]

Hi all,

I was wondering if I could get some advice. I have charged off credit card accounts (7 of them) in the amount of about $49k. I defaulted on all of them 5 years ago this month.

I was sued by a local attorney representing Commonwealth, who was assigned by Citibank, last year (June). The original balance was just under $8,000 but they sued me for $16,500. I never answered the summons and expected a default judgment. In January of this year, the judge denied their final judgment due insufficient proof of debt. That was the last I heard from them. I must have had a lucky rabbit's foot in my pocket that I didn't know about because I was a no-show. If a default judgment would have been awarded I would have filed for bankruptcy.

So I'm not sure what to do now. If my creditors were willing to settle in the 5 - 10% range I could do it. But that is all I have to settle with. I don't own a home or car (I lease a taxi). My only assets are my personal property and I haven't used credit in 5 years. My student loans were paid off last month. I'm an independent taxi driver and I am paid in cash, and pay all my bills in cash. So I know what it's like to live on a cash only basis.

I guess my question is what is the best thing to do? I wish that I had filed bk about 4 years ago, but I didn't and now I am here. I was never issued a 1099 from any of my creditors. I was on another website and posed the same question and many posters told me not to bother filing bk now because the SOL in FL has passed.

Believe me, I'm not anti bankruptcy or anything. I just wonder if it's the wise thing to do since the SOL has passed. Creditors had their chance to sue but didn't (1 did). I'm wondering if I should seek counsel of a bk attorney or a credit attorney.

Oh, the reason I didn't file bk before had nothing to do with future credit. I was concerned about future employment (I don't want to be a taxi driver forever). I understand that you can't be fired solely because of bk, but nothing has shown me that you can't be hired because of a bk on your record.

I would appreciate any and all opinions. And if I'm in the wrong thread, let me know. Thanks to everyone!!!

[BigJohn]

Is Florida the only State you have lived in?

Were you living in Florida when you got these credit cards?

[eddiep]

Wow! wish I had a rabbit's foot!

If he SOL has passed, you must be out of the woods! You could contact a bk attorney, the first consultation is usually free to verify that the SOL has passed. sounds like you got lucky! Why are you considering filing if you are not being hounded by the cc?

[DeadManCrawling]

First, if you are past the SOL, never talk to a creditor if you can help it. They may claim you agreed to make a payment, which restarts the SOL.

After that, read more about SOL in FL.

The danger in workign with attorneys at this point is that you may not need to. And they will want your money, as that is what they do for a living. Try to read everything you can about SOL and know what YOU are doing before meeting them,

You might well need them for one reason or another. But make sure you DO need them first, as they will find reasons you need them, even if you do not.

[HHM]

Hold on, let's back up as there is some misinformation floating around in this thread.

1. SOL is ONLY a defense to a lawsuit. Creditors can still actually sue you, the burden is on you to respond to the lawsuit and raise the defense.
2. Creditors can still try and collect the debt non-judicially, it is only an FDCPA violation if they threaten suit after the SOL has expired.

SOL is not a "solution" to your debt challenges. You should still go talk to some BK attorneys to find out where you stand. A BK will bring certainty to the status of the debt.

Although this post is specific to Colorado, the same principals apply.

http://askmethner.com/?p=191

[junker]

although filiing bk will certainly end all your credit problems, if you dont feel a bk is necessary at this time consider, in another couple of years the cc,s should fall off your credit report, and if you get sued again consider legal aid, they are great in florida, often they are at the courthouse on butcher day, (when creditors sue in mass) giving free advice to anyone that asks, having been a taxi driver many,many years ago, i know you can probably qualify for their help, but only if you are sued again.
as from your experience with last creditor seeking judgement, many other factors besides sol, can cause them to be defeated in court. in my case there, the sol wasnt even brought up, legal aid had other defenses they used to cause the case to be dismissed. DO not make any agreement to settle for less, or even communicate with them. they know the only way they can win now is if you screw up.

[CompTweaker]

If that is the only debt you have in which you would consider filing BK on, then dont. Yes the junk debt buyers can still try to come after you for the debt (which they paid pennies on the dollar for anyway), but you never borrowed money from them did you? You dont owe them one penny. And actually, if they did file a lawsuit against you for debt that is past the SOL, you can counterclaim against them for an FDCPA violation. Each state has its own rules of civil procedure in which you can find the information (without a lawyer) and use it to your advantage.

You say "now" that you can settle for 5-10% on the charged of debt, but if I were you, I would not discuss any type of settlement with any of them if and when they contact you. Only get their name and address (if they contact you by phone) and send them a cease and desist letter.

When the SOL has expired, their option of using the legal system to come after you has expired.....so tell them to stick it where the sun doesnt shine and dont ever answer any questions from them other than you are who they think you are, and you live where they think you live.

[CompTweaker]

in my case there, the sol wasnt even brought up, legal aid had other defenses they used to cause the case to be dismissed.

Yes. There are many affirmative defenses one can arm themselves with.....here are some of them (btw, the following is only for conversational purposes and isnt intended as legal advice)




As and for Affirmative Defenses:

3. Plantiff lacks the legal capacity to bring and maintain this action.

4. Plantiff, as the Defendant is informed and believes, lacks the legal standing to bring and maintain this action.

5. Plantiff's complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some
other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

6. Plantiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plantiff's injury to its own self, therefore Plantiff is barred from seeking relief for damages.

7. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plantiff.

8. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the Plantiff and the Defendant.

9. Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.

10. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

11. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

12. Plantiffs alleged damages are limited to real or actual damages only.

[Rog]

Thanks to everyone that has replied thusfar! Let me repsond to each of you...

BigJohn, Florida is the only state that I have lived in. I opened all of them in the state and, unfortunately, defaulted on all of them here. I never moved from Florida.

Eddiep, not sure I should file, or settle or what. But I know that by not filing, these debts won't just go away.

DeadManCrawling, thanks for your input. I agree, it seems that no matter which type of attorney I see they will steer me in the direction that makes sense for them. Bk attorneys will convince me that bk is the way to go, and credit attorneys will steer me into settlement. Both could be right.

HHM, thanks for weighing in. You're right, SOL is not a solution to the debt. BK will bring resolution, but at this point in time, is it worth it? These debts were defaulted on over 5 years ago. In your link, it references professional debtors. I was too naive to be a pro. I've never sent a DV or talked to a CA at any time. But I would certainly use SOL as a defense if I were sued again.

Junker, thanks for your comments as well. According to my credit reports the negative info will fall off of my report in 2 years. I will check into legal aid, but I think these guys are swamped beyond belief.

Comp Tweaker, thanks for your reply as well. I have a small amount of cash that I could settle with, but I've never spoken with any of my creditors...and I don't plan on doing it now.

What suprises me the most is that I was never sued before. I defaulted on almost of these credit cards at the same time 5 years ago. I never answered their calls or returned their letters. I now wish that all of them would have sent me 1099's so I could have filed for insolvency. Oh well...I'll keep weighing my options...and thanks again to all of you the have replied.

[treehugger1]

Rog, I am curious. I have to wonder if when you were sued and were a no-show, perhaps the plaintiff was also a no-show. In my state, a no-show by both parties results in a prejudice decision in favor of the defendant, In such a case you may be safe due to the SOL's on all debts in the past.

It is true that the future could hold uncertainty in that any future lawsuits against these debts will require your participation in raising the SOL defense. Since it does not appear that your debts can be collected upon, then why not file an official BK and restart your financial life without looking over your shoulder?

In a case such as yours, i do have to wonder if a BK 13 filing (don't know your means test situation,) might open a can of worms. Does a BK 7/13 reset some bizzarre situation where your past debts are taken into account regardless of SOL? Is there language in the BK laws that excuses all time-barred debt? I'd look into this. Perhaps HH has some insight into such peculiar circumstances as related to BK.

I'm no attorney, nor do I pretend to be.

[dingdong]

I don't know, if it were me,and all my debt was past SOL and I did not have any judgements from the debt, I would seriously consider waiting it out.

You will have to be very proactive regarding your CR and making sure you respond to any lawsuits by using the affirmative defense of the SOL.

From what you posted, you only have two years left to have all the baddies off of your CR. If you make sure you stay on top of all the the JDB that tend to pop out of the woodwork when debts are that old and keep them all off of your CR, you may end up in a better situation credit wise than filing BK.

Yes, the BK will put an end to the debt once and for all, but if you have all of the bad debt fall of your CR in 2 years, and you make sure you know what you are doing when you assert an SOL defense, it could work out in your favor.

The only thing that could come back to bite you in the ass is if you applied for a mortgage and the lender pulled one of those special mortage CR (can't remember what they are called, but they seem to have a lot more detail about negative TL and debt) and you were required to pay the debt off to get a mortgage, thus restarting the SOL and credit reporting date of last activity for the debt.

Your creditors can still try and sue you and try to collect on the debt even though it is past SOL, you have to raise the SOL defense effectively when the time comes ( if it does). BKing the debt will take all that away, and you won't have to worry about it, but you will have a BK on your CR for 10 years. I guess it all depends on how you want to live your life in the next few years, debt free with a BK or worrying about being sued or bothered by creditors.

[dingdong]

Another thing to think about, if you settle, you will probably be 1099'd for the deficiency and may have a whopping tax liablity one year.

BK'ing will ensure you don't.


But they also may not be too prone to sue , since the debt is past SOL.

Why would they waste the money on a lawsuit if you can effectively and legally assert a valid defense?

[keepmine]

I'd agree with Junker's post. Fl. has a lot of hoops for a creditor to jump through.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=254631

The first post in this thread has the elements that a debt collector has to prove to win in Fl. and if you're willing to make a fight out of it you should have a decent chance of winning.
I'd come down on the side of if, the SOL has run. Don't file-just defend if you get sued.

[Rog]

Rog, I am curious. I have to wonder if when you were sued and were a no-show, perhaps the plaintiff was also a no-show. In my state, a no-show by both parties results in a prejudice decision in favor of the defendant, In such a case you may be safe due to the SOL's on all debts in the past.

It is true that the future could hold uncertainty in that any future lawsuits against these debts will require your participation in raising the SOL defense. Since it does not appear that your debts can be collected upon, then why not file an official BK and restart your financial life without looking over your shoulder?

In a case such as yours, i do have to wonder if a BK 13 filing (don't know your means test situation,) might open a can of worms. Does a BK 7/13 reset some bizzarre situation where your past debts are taken into account regardless of SOL? Is there language in the BK laws that excuses all time-barred debt? I'd look into this. Perhaps HH has some insight into such peculiar circumstances as related to BK.

I'm no attorney, nor do I pretend to be.

treehugger, thanks for adding to the thread. I don't think a court date was ever set as I never answered the summons. I was served in June of last year, and according to the court website they pushed for default judment in Dec. The judge denied final judgment in Jan. due to lack of proof. I've never heard from them since...so it may not be over yet as this is Citi I am dealing with.

Stupidly, I didn't bother answering the summons because I was unsure if the SOL was 4 years or 5. Now that the 5 years are up, I would answer any summons served against me and use SOL as a defense.

[Rog]

I don't know, if it were me,and all my debt was past SOL and I did not have any judgements from the debt, I would seriously consider waiting it out.

You will have to be very proactive regarding your CR and making sure you respond to any lawsuits by using the affirmative defense of the SOL.

From what you posted, you only have two years left to have all the baddies off of your CR. If you make sure you stay on top of all the the JDB that tend to pop out of the woodwork when debts are that old and keep them all off of your CR, you may end up in a better situation credit wise than filing BK.

Yes, the BK will put an end to the debt once and for all, but if you have all of the bad debt fall of your CR in 2 years, and you make sure you know what you are doing when you assert an SOL defense, it could work out in your favor.

The only thing that could come back to bite you in the ass is if you applied for a mortgage and the lender pulled one of those special mortage CR (can't remember what they are called, but they seem to have a lot more detail about negative TL and debt) and you were required to pay the debt off to get a mortgage, thus restarting the SOL and credit reporting date of last activity for the debt.

Your creditors can still try and sue you and try to collect on the debt even though it is past SOL, you have to raise the SOL defense effectively when the time comes ( if it does). BKing the debt will take all that away, and you won't have to worry about it, but you will have a BK on your CR for 10 years. I guess it all depends on how you want to live your life in the next few years, debt free with a BK or worrying about being sued or bothered by creditors.

dingdong (hehe), thanks for your thoughts as well. I agree with everything you wrote and I'm 50/50 if I should file or just keep doing what I've been doing. But it seems as though I have so much more ammo now that SOL has expired. I wonder if that would give me sharper teeth if I decided to go the settlement route someday. Bk seems like a really bitter pill to swallow knowing that it will be on my credit for 10 years...considering I just went through hell the last 4 years. That's why I wish I had filed 4 years ago. Again, thanks for your input.