Old Accounts One Month from SOL Expiration

[stuckincustoms]

My brother, who lives in Albany NY has a couple of old charge off accounts approaching the SOL for NY state (6 years). HE showed me his credit report and it read date of first delinquency 9/2008. Most are small under $1000.00 but one from Cap One is 7K. He hasn't been contacted by any of them, but he moved a few times and hasn't worked. HE credit reports have old addresses on them. So what to do? I don't see that the big one has been assigned to any collection agency (not showing on his report). What are the chances that the SOL will pass in 2 months? Anyone have any advice?

Edited July 5, 2014 by stuckincustoms

[moosetracks]

They may try to serve a suit at the last minute so the objective is make 0 waves I would suggest that nothing be done on the reports till all those pass the SOL..

[stuckincustoms]

They may try to serve a suit at the last minute so the objective is make 0 waves I would suggest that nothing be done on the reports till all those pass the SOL..

Yep thats what I told him for sure. But what is the exact date of the SOL? I mean, if it says first delinquency Aug/08 for example, does that mean Aug 1/14 is the date? Or is it the end of the month? His last payment was July /08 on most of those debts (he was in a car accident the end of August and stopped all payments). Is merely mailing a summons and complaint one week before satisfactory or does there have to be some time allowed to respond? One would think, if they were going to sue, it would be done at least 6 months to 1 year before SOL expiration

Edited July 5, 2014 by stuckincustoms

[moosetracks]

Oh ok, SOL runs from the DoFD just like the maximum reporting time for negative credit items. DoFD is defined as the first occurence of a 30 day late that leads to the CO. Its most likely in Sep 08 as he would have not gone 30 until then,,, If a payment history is being reported you can pretty much figure out what the DoFD is.. On lawsuits he would have to be served at least 1 day prior to SOL for the court to issue a successful judgment. SOL doesnt stop them from suing some do as a scare tactic and they hope the person being sued doesnt know the law, once these go past SOL if a suit pops up then its up to him to assert the SOL as his defense and the court will dismiss it.

[stuckincustoms]

One last question here: IF they sewer serve him at al old address he hasn't lived in years, a few weeks before the SOL expires. They get the default judgement (because he sent know about it until it pops up on e-courts). Can he ask it to be dismissed since he was never properly served in person?

[moosetracks]

Yes, would require a motion in the court.... the way to know if something is coming is to peruse the court filings in the court houses of the counties he has lived in and is living in.

 

Adding: There may be time limits set by state law on filing motion to vacate on grounds of improper service you need to look up the laws for what state he is in...

Edited July 5, 2014 by gdale6

[stuckincustoms]

Yes, would require a motion in the court.... the way to know if something is coming is to peruse the court filings in the court houses of the counties he has lived in and is living in.

 

Adding: There may be time limits set by state law on filing motion to vacate on grounds of improper service you need to look up the laws for what state he is in...

 

He is in NY and fortunately NY has an online system call E-Courts. Its pretty accurate. I got served once and within 3 days it was in there.

[ICANHASMUNY?]

NY SOL for Crap one is 3 years because they are located in VA.

 

NY has a borrowing statute, send them a FOAD letter if they contact him.

 

http://creditboards.com/forums/index.php?showtopic=477180

 

tell him to check the other charge offs, maybe those lenders are in states with a shorter SOL than Ny's too.

[brindle48]

Are you saying the SOL is determined by the laws of the state the lender is located in and not the state the debtor lives in? If so that is news to me.

[ICANHASMUNY?]

Are you saying the SOL is determined by the laws of the state the lender is located in and not the state the debtor lives in? If so that is news to me.

we're speaking of NY state, each state has different laws ;

 

some states have borrowing statutes, others don't or they have choice of law rules - it's a VERY complicated subject, always best to find actual case law on a statute -

 

 

 

in NY, the state appeals court has made a ruling, which governs all lower court in the state; and they cited NY statutes on this.

 

 

CPLR § 202 (i.e. New York's "borrowing statute"). Specifically, the Court held that defendant was entitled to choose the shorter of the statute of limitations available in a the original creditor's home state of Delaware ( 3 years ) , and the six year statute of limitations generally applicable to credit card cases under New York law.

CPLR 202 provides, in relevant part, that "[a]n action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued." Therefore, "[w]hen a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitation periods of both New York and [*3]the jurisdiction where the cause of action accrued" (Triarc, 93 NY2d at 528). If the claimed injury is an economic one, the cause of action typically accrues "where the plaintiff resides and sustains the economic impact of the loss" (id. at 529).

[brindle48]

Very interesting. I will be looking at how or if WA. state has ruled on this or if they have.

Thank you

[mizliz1011]

NY SOL for Crap one is 3 years because they are located in VA.

 

NY has a borrowing statute, send them a FOAD letter if they contact him.

 

http://creditboards.com/forums/index.php?showtopic=477180

 

tell him to check the other charge offs, maybe those lenders are in states with a shorter SOL than Ny's too.

you just beat me to it!

[mizliz1011]

Are you saying the SOL is determined by the laws of the state the lender is located in and not the state the debtor lives in? If so that is news to me.

In NY, it is the shorter statute of the two states.. ain't life terrific. there is a pending proposal in NY to make the SOL three years but it has been languishing in the Assembly..It has been reintroduced three times.

[ICANHASMUNY?]

 

NY SOL for Crap one is 3 years because they are located in VA.

 

NY has a borrowing statute, send them a FOAD letter if they contact him.

 

http://creditboards.com/forums/index.php?showtopic=477180

 

tell him to check the other charge offs, maybe those lenders are in states with a shorter SOL than Ny's too.

you just beat me to it!

 

 

considering that I made that post, and but together the topic on borrowing statutes, I should...

[CG in TX]

 

On lawsuits he would have to be served at least 1 day prior to SOL for the court to issue a successful judgment.

IIRC, the act of filing suit tolls the statute...it has nothing to do with when you are served.

[Second Chances]

 

 

On lawsuits he would have to be served at least 1 day prior to SOL for the court to issue a successful judgment.

IIRC, the act of filing suit tolls the statute...it has nothing to do with when you are served.

 

It depends on the state. In GA, if you file close to the expiration of the SOL, you have a five-day safe harbor in which to perfect service on the defendant. If you do not serve the defendant within that timeframe, you have the burden of proof of showing that you used due diligence in trying to serve the defendant. If the plaintiff learns about a problem with perfecting service after the SOL has run, then they have to use the "greatest possible diligence" to serve the defendant.