Twist on SOL

[treehugger1]

I recently heard of a few debt-related suits in my state where the plaintiff (JDB) could not provide "proof" of last payment and a SOL defense was allowed to stand. I always thought the burden of showing proof of a last payment would be on the defendant. Aparently this is not the case here. Here are the relevant SOL statutes from the Oregon Revised Statutes. See 12.080 below. Note that in my state SOL is six years from the time of last charge or payment proved. I just thought others might find this interesting.

12.080 Action on certain contracts or liabilities. (1) An action upon a contract or liability, express or implied, excepting those mentioned in ORS 12.070, 12.110 and 12.135 and except as otherwise provided in ORS 72.7250;

(2) An action upon a liability created by statute, other than a penalty or forfeiture, excepting those mentioned in ORS 12.110;

(3) An action for waste or trespass upon or for interference with or injury to any interest of another in real property, excepting those mentioned in ORS 12.050, 12.060, 12.135, 12.137 and 273.241; or

(4) An action for taking, detaining or injuring personal property, including an action for the specific recovery thereof, excepting an action mentioned in ORS 12.137;

shall be commenced within six years. [Amended by 1957 c.374 §3; 1961 c.726 §396; 1973 c.363 §1; 1983 c.437 §2; 1987 c.705 §3; 1991 c.968 §2]


12.090 Accounts; accrual of cause of action. In an action to recover a balance due upon an account, the cause of action shall be deemed to have accrued from the time of the last charge or payment proved in the account. Interest, financing and carrying charges shall not be deemed such a charge. [Amended by 1973 c.204 §1]

[LadyInTheRed]

It makes sense to me that the creditor would have the burden of proof. Otherwise, you have to prove the negative that you haven't made payments in the last 6 years. How would you do that? You could provide evidence that you made a payment 7 years, but you can't prove it was your last payment.

[HHM]

Correct, the defendant has the obligation to raise the defense and does, technically, have the burden of proof, but because of the reason LadyInTheRed stated, the creditor often has the burden of production. But at the same time, since the SOL is a threshold issue, the creditor eventually needs to prove the lawsuit is validly brought.

[treehugger1]

Thanks, that makes some sense.

[treehugger1]

It is also odd that two of my accounts that were sold to JDB's show date-of-last-payments at the time of sale under original creditor in my credit reports. The true date of last payment was approximately 18 months prior to the sale to the JDB. I tried disputing the last payment date, but it remains the month and year the OC sold the account. And, the JDB's show the last payment date as the month and year they acquired the account. What a game. I find this amusing. I guess I'll just wait and see what the future brings.

[GoingDown]

It is also odd that two of my accounts that were sold to JDB's show date-of-last-payments at the time of sale under original creditor in my credit reports. The true date of last payment was approximately 18 months prior to the sale to the JDB. I tried disputing the last payment date, but it remains the month and year the OC sold the account. And, the JDB's show the last payment date as the month and year they acquired the account. What a game. I find this amusing. I guess I'll just wait and see what the future brings.

I have had the exact same thing happen to me with junk debt buyers!

Fortunately, I have kept the older Equifax credit reports which show the earlier DOLA (date of last activity) with the original creditors, before the junk debt buyer bought the accounts. And of course, Equifax lists the DOFD (date of first delinquency) for the original creditors as well.

The SOL is based on the original creditors, not the junk debt buyers, unless a payment was made to a junk debt buyer, which I never did, and never will do.

If necessary, I would show those to the judge and show how the junk debt buyer is trying to pull a fast one.

At this point, I really doubt they are going to do anything. Some of the accounts have even passed the SOL based on when the junk debt buyer purchased the accounts.