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Bluesie58

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  1. NY has this law for credit reporting. New York State General Business Law Section 380-j “(f)(1) Except as authorized under paragraph two of this subdivision, no consumer reporting agency may make any consumer report containing any of the following items of information. (iv) accounts placed for collection or charged to profit and loss which antedate the report by more than seven years;  or accounts placed for collection or charged to profit and loss, which have been paid and which antedate the report by more than five years; “
  2. Unless NY has a different law regarding validation, the OP can send a validation letter, but the CA won’t be required to respond. But I know some CAs will respond under these circumstances, so hopefully that will happen for the OP.
  3. You say it’s a dispute letter, but it doesn’t dispute anything. Also, what “additional legal remedies”? Legal remedies for what?
  4. A cease and desist is simple. Just state that the collection agency (CA) is to cease and desist all communications. That covers letters, calls, etc. You don’t have to mention the FDCPA, that the account is outside the SOL, or any other specifics. It’s not your responsibility to inform the CA of the requirements in the FDCPA. Unfortunately, a cease and desist or the fact that the account is time-barred does not prevent credit reporting. Unless your state law says otherwise, a derogatory entry can remain on your CR for 7 years from the date of first delinquency.
  5. You seem to be assuming that an open account cannot be based upon a written instrument. From what I can locate, the only WA statute that references an “open account” is RCW 4.16.150 (Action on mutual open accounts). However, that statute does not indicate in any way that such an account cannot be based upon a written instructions. Nor does it specify a statute of limitations. The 3-year statute you quote (RCW 4.16.080) is based upon unwritten contracts. Even if there were a statute that defined an open account, it would have to be shown that an open account cannot be in writing and cannot arise out of a written instrument as provided for in the 3-year statute. Why would an open account be limited to unwritten instruments? There is a WA case in which the 3-year statute of limitations was raised and the ruling issued in favor of the consumer. It is Unifund CCR, LLC v. Elyse (2016). The WA Court of Appeals ruled that the 3-year SOL applied because Unifund did not show that Elyse agreed to the terms of the cardmember agreement it submitted. Unifund submitted a 2010 cardmember agreement, but the defendant last used the card in 2008 and the last payment was in 2009. As a result, there was no proof the defendant agreed to the terms of the 2010 agreement. ”In order to prove Elyse's assent to the terms of the 2010 card-member agreement by use of a credit card, Unifund had to document Elyse's use of a credit card when governed by that specific agreement. But Elyse could not have assented to the terms of the 2010 cardholder agreement by her conduct since her credit card was last used in July 2008 and the last payment was made on the card in November 2009. Therefore, Unifund did not prove Elyse assented to the terms of the 2010 cardmember agreement and failed to prove the existence of a written contract on which its claim against Elyse for unpaid credit card debt could be based.” So, unless someone can convince the court that an open account cannot arise out of a written instrument, the SOL will be 6 years as long as an admissible and applicable written agreement is submitted, and it is shown that the consumer assented to the terms of that agreement.
  6. Why Chat stated that “Federal statutes ( including the TILA) should have preeminence in lawsuits”. He did not say they should have preeminence only in the state of Washington. My purpose in citing the ID Supreme Court was to show how courts can determine the SOL of an open account and that it does not conflict with the requirements of TILA.
  7. Federal law preemption of state law occurs only when there is a conflict between state and federal law. From the U.S. Supreme Court: Where state and federal law "directly conflict," state law must give way. PLIVA, Inc. v. Mensing, 564 U. S. 604, 617, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011). Read the purpose of TILA. The “informed use of consumer credit” has nothing to do with how a state can determine the SOL for credit card debt. How states determine the SOL does not conflict with the requirements of TILA. (See § 1026.28 Effect on state laws). As the Idaho Supreme Court put it: The terms of an open account can be set forth in a written contract. Unifund CCR LLC v. Lowe, 159 Idaho 750, 367 P.3d 145, 148-49 (2016).
  8. Why should a definition in TILA determine individual state SOLs for credit cards?
  9. That’s the worst letter you could send. Not only is it overkill, it’s loaded with inaccurate statements.
  10. I was responding to @hangloose who asked about the SOL for credit card accounts. It really doesn’t matter that the cases were from 6 years ago. The law hasn’t changed. RCW 4.16.40 says actions arising out of a written agreement have a 6-year SOL. 4.18.040 is for debt that was opened in another state.
  11. Also, RCW 4.16.40 Actions limited to six years (1) An action upon a contract in writing, or liability express or implied arising out of a written agreement, except as provided for in RCW 64.04.007(2).
  12. I’m pretty sure the WA Court of Appeals relied on the revised statutes in the cases I cited.
  13. @hangloose Based on WA court rulings, if the plaintiff provides an admissible copy of a cardmember agreement, the SOL is 6 years. Discover Bank v. Rodriquez, Wash: Court of Appeals, 2013 Unifund CCR Partners v. Sunde, Wash: Court of Appeals, 2011
  14. It’s a scam. The call was from some low-level JDB who was probably calling out of his Mom’s basement. He was just trying to scare you into paying.

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