Help! $8300 taken out of checking accounts by collection agency/lawyer!

[AZGuy23]

What reasoning are you planning to give for a 3-year SOL vs the 6 year credit card SOL?

I know that prior to 2011, "open accounts" SOL was 3 years, but some judges ruled that credit cards were not open accounts, but written contracts, and therefore had a 6 year SOL while other judges did categorize them as open account.

In 2011, there was legislation passed that actually uses the verbiage "credit cards" and has a 6 year SOL. Now...if the debt was from prior to 2011...do the old rules still apply, or do the new ones apply? I would think the old ones do, that is what would make sense.

[bcohen]

AZGuy, the alleged debt in question was incurred LONG before the law changed--I quit paying in March of 2009, and the account was charged off in November of 2009. Therefore, I contend that the old SOL should apply, and that to argue otherwise is in violation of the Constitutional protection against ex-post-facto law. In any case, the creditor does not have the original contract/account application anymore, as I requested it through discovery and they cannot produce it. They are suing under "account stated" which has a 3-year SOL anyways.

Worst case, they get a judgment, and I file for Chapter 7, and the judgment becomes unenforceable, and after discharge must be set aside. I have no intention of paying anyting to this creditor ever again.

[AZGuy23]

Sounds like you have a solid plan. Good insight on the old law and the original contract part. As I talked about in my other thread, I have an account that *may* of had a last payment made 12/2007 which should fall under the old law as well and it sounds like if they don't have the original contract, it would fall under the 3 year SOL so it should be safe.

That brings up another discussion...what "contract" is there normally for a credit card? The original credit card application? I know there was a lot of controversy with the old law and "open accounts", which seem to be what credit cards are, vs "written contracts" which are ones in which both parties sign a contract.

[GoingDown]

I am not really sure this is good advice. Sure, most collection law firms make some attempt to guage what if any assets a particular debtor might have in order to pay a judgment before choosing to sue, but not all of them do this. Likewise, there are some collection law firms who aggressively sue on out-of-SOL debt because they know that SOL is an affirmative defense, and if the defendant fails to file a timely answer, or fails to raise the SOL defense, then it is deemed waived, and the law firm wins its judgment. The small number of debtors who might fight the lawsuit and/or file a FDCPA complaint for suing on out-of-SOL debt are just a cost of doing business.

In fact, I am now being sued by Gurstel Chargo for an old Discover card that I defaulted on more than 3 years ago, and the collection attorney knows (or should know) based on my credit reports that I have absolutely nothing to seize, levy, or garnish, yet they have chosen to sue. I am in fact, raising the SOL defense, which it will be a matter of law whether the judge will accept my reasoning that the 3-year SOL should apply, or not. In any case, I plan to file BK before I have any wages or other assets which a judgment creditor could go after.

Since there are two threads running about this same topic, it's easier to just quote what I said in the other thread in response...

GoingDown: Do you include a copy of the collection letter with the letter your write them? Or just put your information (name/address) and account number on the letter?

I would just write it like this...

[the date]

[your name]
[your address]
[your phone number if they are already calling you on it]

(I leave the account number out of the letter, since junk debt buyers usually use a new account number. You have already given them sufficient information with which to identify the account.)

TO: [junk debt buyer or creditor or collection agency name and address]

Cease and desist from any communication with me.

The Arizona statute of limitations has expired. If you file a lawsuit against me, I will fight it in court, and I will win, and I will ask the court to make you pay my legal fees and court costs, since I have now notified you in writing that this matter is time barred by the Arizona statute of limitations.

Sincerely,
[your name printed by a computer. never sign anything you send to a debt collector]




That's it. That's how simple it should be.

If I was a debt collector, and I got that letter, I would give up on this account. You've taken away their main way of getting paid-- calling you on the telephone. You've also taken away their second way of getting paid-- filing a lawsuit against you, since they now know you will fight them and win, and all they will end up doing is paying legal fees and court costs-- theirs and yours!

I am speaking from experience. In all the years since I first defaulted on my many credit cards, NONE of them have sued me past the 6 year SOL for written contracts. NONE OF THEM! And I had a lot of credit cards. This includes my old credit cards I got back in college in the 1990s.

The 3 year SOL in Arizona was debatable even before the new law changed it to 6 years. I'm talking about the 6 year SOL for written contracts, and now for credit cards under the new law. None of my credit cards that made it past the 6 year SOL have filed a lawsuit against me.

I think my letter definitely helped. They don't want to throw good money after bad.

One thing I do advise, is that when you first get a 30 day debt validation letter from a junk debt buyer, send them a DV letter first, before you send them a C & D letter, in the hope that they will send you a letter which states the date of last payment. Most of the ones I received from junk debt buyers included this information, and you can save that letter back as evidence to use against them later.

The DV letter would look like this...

[the date]

[your name]
[your address]
[your phone number if they are already calling you on it]

TO: [junk debt buyer or collection agency name and address]

I dispute the validity. Please send me written verification.

It is inconvenient for me to receive telephone calls from you at any time and at any location.

I revoke any prior authorization you may have had to call my cell phone and I demand that you never call my cell phone number.

Sincerely,
[your name printed by a computer]


That letter sets them up for FDCPA and TCPA violations, and hopefully, if they respond in writing, they will state the date of last payment in their response letter, and you can use that against them later if they attempt to file a lawsuit against you beyond the 6 year SOL.

[WanabeFree]

Question to the original OP.

You keep saying that all your other debts are beyond SOL but in other posts you say they will be gone by March of 2013. Which is it ? If March of 2013 then you still have some time to go and are not safe at all. IF you fail to file all your debts you have liability until at least the SOL date certain.
I think you might be just picking and choosing the answers that you want or fit best to your advantage and not necessarily looking a the big picture. Seems like you played chicken and lost. Not judging you we all do similar things when it comes to money but what I am seeing is that you are not telling your attorney all the facts or are in denial.
I think If it were me I might just fight to get back the earned income or business part of it and then try to stay judgment proof while negotiating a settlement with the collector for a release of judgement.

[AZGuy23]

WanabeFree: there are two things I'm working with here, one being the SOL and the other the credit report.

I stopped paying on the accounts in March 2006 so the SOL started in March 2012 (6 years in AZ). Then they will fall off the credit report in March 2013 after 7 years and that is what I was referring to when I said their will be "gone".