DV after making some payments, may have SOL to stand on?
Posted 19 May 2012 - 09:45 PM
I have 3 accounts with Midland Credit.
1 Chase bank-OC...I paid it off with a settlement
2. Tmobile- OC
3. HSBC- OC
I was totally ignorant of my rights and the process of disputing debts when they first contacted me at the end of last year. So I made payment arrangements on all 3 accounts, paying the chase account off. They have since become a little more aggressive and demanding higher payments so I started researching my rights as I can't afford to pay more and really don't want a judgement.
Here is the history:
Sent DV letters CMRRR for the Tmobile and HSBC accounts.
HSBC: Listed on CR by HSBC as a CO. Listed by Cavalry Portfolio. Listed by MCM. MCM responded to the DV (sent one to Cavalry also with no answer yet) MCM sent a letter saying they purchased it from Cavalry, the acct numbers, OC and balance. Also some type of print off showing the payments I have made
TMobile: Listed on CR by MCM only
On both accounts they have technically fulfilled their obligation to provide the OC and balance and even sent more info than I expected. So I imagine if I respond and tell them the info is insufficient they will say it is sufficient. But I'm thinking I should go ahead and request more just to see if they can produce it should this go to court and to make the process take a little longer.
So I then started checking my state's SOL (I know, I should have done that first) and I'm a little confused. I live in KS. Some sites say 3 yrs. I noticed whychat's list for Kansas says 6 years for contracts. So I looked up my state statutes. Statute 60-512, Limitations of Actions says "All actions upon contracts, obligations or liabilities expressed or implied but not in writing." is 3 years which to my understanding applies to open ended accounts (the HSBC account for example)
There is another statute 16-118 Contracts and Promises " A debtor or a creditor may not maintain an action for legal or equitable relief or a defense, based in either case upon a failure to perform on an alleged credit agreement, unless the material terms and conditions of the agreement are in writing and signed by the creditor and the debtor." and goes on to say "Except as provided in subsection (e), an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date"
So what I'm asking is which category these 2 accounts fall into. I am understanding the statute to mean contracts and promises such as auto loans. Or would that also cover credit cards and cell phone service?
On my CR HSBC lists the last payment as 10/2008. So does that mean the SOL expired 10/2011 or will it be 10/2014?
Of course MCM has the dates listed as 3/2012 because I was making payments and I'm sure they will say by doing that I restarted the clock. However I also know that in Kansas there is statute 60-520 that states action can only be extended if in writing. I never put anything in writing. So does that mean they can't restart the SOL?
Next, if I'm correct in thinking the SOL has expired for them to pursue this what do I do next? Do I send them a letter stating that and request deletion? Do I threaten legal action if they don't? Do I file a complaint with BBB or FTC etc? Do I dispute with the CRA's?
I used to have great credit but I got laid off and was unemployed on welfare for 2years. I have 4 kids and when it was pay the rent or pay the credit card the choice was a no-brainer. I have since started my own business so none of these CA's can garnish my wages but they could put levies on my bank accounts. My credit score is barely 500 right now which is limiting me being able to expand my business. I have 26 negative marks on my credit report. I have started disputing the ones I know are invalid and doing what I can to get deletions of multiple marks for the same accounts. I'm not in a financial position to pay settlements or even make very large monthly payments. I'm trying to delete what I can and snowball payments on everything else. I know I have a long, expensive road ahead but I'm ready to do it to the best of my ability and these boards are a great resource. Any advice on what steps to take next would be appreciated. I have gotten a lot of info on my rights but it's also confusing at times. Thanks in advance!
Posted 19 May 2012 - 11:42 PM
Posted 20 May 2012 - 11:21 AM
The SOL for collection is completely different from the SOL for reporting. Charge offs can report for 7 years from date of initial delinquency even if the SOL for collection runs for 3 years.
I know there are 2 different SOL's. I'm trying to determine if these 2 accounts are outside the SOL for collecting. Do they fall under the 3yr SOL for open ended accounts or the 6 yr SOL for contracts? (those are the sols for Kansas that I referenced the statutes above) I don't want to set up payment arrangements on accounts that are past the SOL. I understand they will probably report on them for the full 7 years. My first objective is to avoid a judgement and inflated payments if I don't have to. Once I'm in the clear on that I may try picking apart their TL's or disputing with CR's for deletion. Just wanting some advice on how to do those things and especially for MCM, as they are not the nicest people. Thanks!
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