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hangloose

I need help please, I'm desperate

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On 10/17/2019 at 6:47 AM, legaleagle2012 said:

You aren't going to get this stuff removed just because you want a good credit score, it doesn't work that way. There are very few reasons that result in removal; you would have to literally prove the debt is not yours.

BK isn't the worst thing that can happen, you should consider it. Do you really think having a lender see that on your report would be any worse than having them see a string of chargeoffs and judgments? If you let all these entities sue you, which is highly likely, that 28K will increase by another ten K due to legal fees and court costs. That will also impact your ability to get a job. No prospective employer wants to be bothered processing garnishments.

The guidance given to consider long-term consequences of a BK were given by other posters for a reason.  Very rarely will there be a question that asked whether you ever defaulted on a debt.  There is almost ALWAYS a question on many loan and employment documents that asks if you have ever filed BK.  Thus one absolutely HAS to look long-term before going nuclear. 

 

I have no idea about propensity to litigate in Washington.  Some States see increased rates of litigation on consumer debt while others see very little...much will depend on post-judgment remedies that are available.  Further, if it becomes clear that something was going to move to litigation, then one can ALWAYS negotiate a settlement that does NOT result in a judgment. 

 

Where docketing information is easily viewable online, one can see whether they are at a higher risk of being sued.  There are plenty of jurisdictions where the $28K figure referenced by the OP won't ever see the light of docket day given that it is a composite total.  In other parts of the country, multiple suits could occur. 

 

OP will be best served to figure out whether the paper is still owned by the OC or whether it has been sold off.  The charge off event does NOT mean paper has been sold.  Negotiations can STILL be had, even on a charged-off account.  There is PLENTY of ground between litigation and BK...having a metric phucton of debt does NOT mean those are the only two options available. 

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Hi Centex,

 

The two debts with NFCU are still owned by them, they've sent me letters offering settlements around 40%, being that I am technically and legally homeless, and am pursuing a disability claim through the VA will have a big impact on their decision to sue (I say that somewhat confidently, as VA disability can't be garnished) That being said, I will more-than-likely work out an arrangement with them in order to avoid a BK

 

The two debts with JPMCB/Chase haven't been sold, but are being serviced by Client Services Inc. CSI states that they do NOT report to CRA's, nor do they initiate litigation. I have also received offers to settle for ~40% from them as well. These are ones that I may choose to fight, as they (Chase) haven't updated the CO for either debt's since mid-May (~6 months). I know this can change in an instant however, and am aware of this.

 

I currently have ONE credit card, a small $200 secured credit card through Sound Credit Union. I received an e-mail from them earlier offering me a $1,200 personal loan at 12% APR with NO credit check and NO penalty for early payment. I don't actually need this money as I've been squirrling away my cash, but I am intending on paying $1,100 back immediately, then paying the remaining $100 off in equal amounts over the next 11 months after. (I just came up with those figures btw, I can leave $11 remaining and just pay $1/month if that is better)

 

Due to my personal situation, I feel that most institutions would take favor seeing as I'm judgement proof, and if they know that they cannot collect on VA disability then they might be more apt to a settlement agreement.

 

Any thoughts or advice anyone?

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3 hours ago, legaleagle2012 said:

Offer them whatever you feel comfortable with. Tell them that's all you have since you are disabled.

In this situation is there a percentage? Making payments would be much more doable than a lump sum, unless they’re willing to take like 8-10%

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15 hours ago, hangloose said:

 

Due to my personal situation, I feel that most institutions would take favor seeing as I'm judgement proof, and if they know that they cannot collect on VA disability then they might be more apt to a settlement agreement.

 

Any thoughts or advice anyone?

MANY institutions do not look at a current lack of funds as reason not to pursue litigation.  'Judgment-proof' today does NOT mean one will ALWAYS be lacking in funds.  There are PLENTY of people that are back on their financial feet within a decade and want to buy a house.  Meanwhile, that judgment continues to accumulate interest at a statutory post-judgment rate. 

 

The people that suggest one who could be sued pay defaulted debt and potentiality of litigation no heed because of 'judgement proof' status demonstrate to you that they really don't know what they are talking about and should be taken with a huge grain of salt...

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@centex true, I had considered that as well. I DO want to buy a house within ~2 years and I know it won’t happen with these CO’s on there. 
 

Any advice or recommendation for how to negotiate with them in order to pay the least amount possible? Or any other advice in general?

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1 hour ago, hangloose said:

@centex true, I had considered that as well. I DO want to buy a house within ~2 years and I know it won’t happen with these CO’s on there. 
 

Any advice or recommendation for how to negotiate with them in order to pay the least amount possible? Or any other advice in general?

Best advice *I* would give is to not be afraid of the phone.  Negotiations are always easier to accomplish voice-to-voice.  Once the Agreement in principle has been hammered out, THEN worry about reducing it to writing and communicating it via fax for signature.  

 

Second best piece of advice would be to BE REASONABLE.  There are too many people that simply don't seem to grasp that reality of doing business.  Unreasonable expectations or demands tend NOT to get results that you would hope to achieve...

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On 10/18/2019 at 7:16 AM, legaleagle2012 said:

Revised Code of Washington 4.16.040  sets an SOL of 6 years for written contracts. Credit cards all have written contracts. Years ago there was some confusion about open accounts, but since then the courts have been applying the 6 year SOL. Virtually every WA lawyer on line says 6 years as well.

Can you cite any case law from Washington State to prove your point?

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@MarvBear

action limited to 3 years(3) Except as provided in RCW  4.16.040(2), an action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument;

 

every credit card has something to sign (whether on paper or an electronic signature, which both are considered written instrument)

 

action limited to 6 years: (2) An action upon an account receivable. For purposes of this section, an account receivable is any obligation for payment incurred in the ordinary course of the claimant's business or profession, whether arising from one or more transactions and whether or not earned by performance.

 

every credit card is an account receivable. I HAVE found 2 cases where courts determined that 6 years was the SOL in WA. I have found 0 where 3 was used or applied. I’ve tried asking Why Chat about this but he gets VERY irritated at the prospect that he’s wrong, but his opinion is based solely on his interpretation and one random website he cites. Every lawyer on AVVO says 6 years too. Why Chat is just simply wrong, unfortunately... I would’ve LOVED if he was right though but he never produces any evidence that 3 years is applicable in WA 

 

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I may be mistaken, but I am not "wrong"
There was some arguments in 2009 and prior about whether it was the 3 year open account or 6 year written, case law generally evolved that it is the 6 year written.

 

Went through the same thing in Ohio several years ago. Unless and until someone raises the issue of the TILA stating that credit card accounts are OPEN ENDED accounts and thus should be considered to have a 3 year SOL there will continue to be (except for a few referenced sites) a 6 year SOL cited. 

https://www.sapling.com/6461856/statute-debt-collection-washington-state

https://www.incharge.org/understanding-debt/credit-card/what-is-statute-of-limitations-all-50-states/

 

The acceptance of a 6 year SOL for credit cards will continue unless and until someone refers to the TILA definition. Federal statutes ( including the TILA) should have preeminence in lawsuits, but only if they are referred to in the case.

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30 minutes ago, Why Chat said:

I may be mistaken, but I am not "wrong"
There was some arguments in 2009 and prior about whether it was the 3 year open account or 6 year written, case law generally evolved that it is the 6 year written.

 

Went through the same thing in Ohio several years ago. Unless and until someone raises the issue of the TILA stating that credit card accounts are OPEN ENDED accounts and thus should be considered to have a 3 year SOL there will continue to be (except for a few referenced sites) a 6 year SOL cited. 

https://www.sapling.com/6461856/statute-debt-collection-washington-state

https://www.incharge.org/understanding-debt/credit-card/what-is-statute-of-limitations-all-50-states/

 

The acceptance of a 6 year SOL for credit cards will continue unless and until someone refers to the TILA definition. Federal statutes ( including the TILA) should have preeminence in lawsuits, but only if they are referred to in the case.

Why should a definition in TILA determine individual state SOLs for credit cards?  

 


 

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https://whychat.me/answer.html

https://whychat.me/nottoca.html

Include the following underlined paragraphs for credit card accounts

Please be advised that under the TILA § 15 a credit card account is legally defined as an "open" account.

The Act is in Title I of the Consumer Credit Protection Act and is implemented by the Federal Reserve Board via Regulation Z (12 C.F.R. Part 226). 

The Regulation has effect and force of federal law.

Open-end Credit Transactions:

Open-end credit includes bank and gas company credit cards, stores' revolving charge accounts, and cash- advance checking accounts.

Typical features: 

Creditors reasonably expect the consumer to make repeated transactions.

Creditors may impose finance charges on the unpaid balance.

As the consumer pays the outstanding balance, the amount of credit is once again available to the consumer

 

The above instructions were written over 15 years ago waaay before there were any usable credit board forums for legal help. I have not edited them in years and there are possibly some broken links and outdated information

Edited by Why Chat

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1 hour ago, Why Chat said:

https://whychat.me/answer.html

https://whychat.me/nottoca.html

Include the following underlined paragraphs for credit card accounts

Please be advised that under the TILA § 15 a credit card account is legally defined as an "open" account.

The Act is in Title I of the Consumer Credit Protection Act and is implemented by the Federal Reserve Board via Regulation Z (12 C.F.R. Part 226). 

The Regulation has effect and force of federal law.

Open-end Credit Transactions:

Open-end credit includes bank and gas company credit cards, stores' revolving charge accounts, and cash- advance checking accounts.

Typical features: 

Creditors reasonably expect the consumer to make repeated transactions.

Creditors may impose finance charges on the unpaid balance.

As the consumer pays the outstanding balance, the amount of credit is once again available to the consumer

 

The above instructions were written over 15 years ago waaay before there were any usable credit board forums for legal help. I have not edited them in years and there are possibly some broken links and outdated information

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).

 

Edited by Bluesie58

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3 hours ago, hangloose said:

@MarvBear

action limited to 3 years(3) Except as provided in RCW  4.16.040(2), an action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument;

 

every credit card has something to sign (whether on paper or an electronic signature, which both are considered written instrument)

 

action limited to 6 years: (2) An action upon an account receivable. For purposes of this section, an account receivable is any obligation for payment incurred in the ordinary course of the claimant's business or profession, whether arising from one or more transactions and whether or not earned by performance.

 

every credit card is an account receivable. I HAVE found 2 cases where courts determined that 6 years was the SOL in WA. I have found 0 where 3 was used or applied. I’ve tried asking Why Chat about this but he gets VERY irritated at the prospect that he’s wrong, but his opinion is based solely on his interpretation and one random website he cites. Every lawyer on AVVO says 6 years too. Why Chat is just simply wrong, unfortunately... I would’ve LOVED if he was right though but he never produces any evidence that 3 years is applicable in WA 

 

Can you cite any case law from Washington State to prove your point.


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35 minutes ago, Bluesie58 said:

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).

 

We are discussing the State of Washington, NOT ANOTHER.  Don't muddy the puddle.

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38 minutes ago, MarvBear said:

We are discussing the State of Washington, NOT ANOTHER.  Don't muddy the puddle.

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.

 

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We are discussing the State of Washington ONLY for the sake of the original poster.    Why Chat did not need to add a disclaimer to their statement.

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2 hours ago, MarvBear said:

Can you cite any case law from Washington State to prove your point.


https://scholar.google.com/scholar_case?case=6881248198285580411&hl=en&as_sdt=6,48

 

"... remedies this unfair burden by applying Washington's six-year statute of limitations to the claim instead. RCW 4.18.040. We agree. "

 

"... Thus, the two requirements of RCW 4.18.040 are satisfied and the trial court erred when it failed to apply Washington's six-year period and concluded the claim was time barred "

 

" Last, Sunde asserts that Delaware has a blanket policy of applying the shortest possible statute of limitations to a case and that we should not undermine that policy by applying Washington's six-year period. "

 

" Sunde's argument fails. Not only is Washington's six-year statute of limitations shorter than Delaware's indefinitely tolled statute "

 

 

Edited by hangloose

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I called Washington Debt Law PLLC today and spoke with Mr. Edgar Hall (https://wadebtlaw.com/attorneyprofiles/)

 

I called to ask him specifically about the 3 year vs 6 year SOL for credit card debt, and how some people online are saying credit card debt should only be 3 year SOL as it should be considered an "open account/revolving account"

 

He did inform me that there was some talk about this pre-2008/2009 that WA state used 3-years, but it confused judges and they never used a 3 year SOL for CC debt, but always deferred to 6-year due to the definition of a CC being an account receivable/written contract. (paraphrasing his words) I asked him straight up, "so could a judge ever be convinced it's 3 years?" and he said "No. I have some court case documents where they always sided with 6 years and that's what they go with every time I've ever seen it, but cases rarely come down to SOL, I think I've only seen that 2 or 3 times in my career" (again paraphrasing but trying to get his wording as exact as I remember)

 

Like I mentioned, I would LOVE for WA to be 3 years. I know the language isn't spelled out in black-and-white, but it's pretty evident by the definition of an account receivable/written contract that 6 years is the standard here.

Edited by hangloose

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Mr. Hall is correct. The current case law in the State of Washington upholds the premise of a 6 year SOL for credit card accounts. HOWEVER, to the best of my knowledge there has NEVER been a case where the 3 year SOL was claimed on the premise of a credit card account being an "OPEN" ended account UNDER WASHINGTON STATUTES.

 

There ARE cases where someone has been sued in Washington State and they have been successful in claiming the 3 year SOL of the credit card Company's resident State.I don't remember whom the OP had a credit card account with, however it is more than likely that THAT Company's credit card agreement requires applying their own State rules to any legal action.

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50 minutes ago, Why Chat said:

Mr. Hall is correct. The current case law in the State of Washington upholds the premise of a 6 year SOL for credit card accounts. HOWEVER, to the best of my knowledge there has NEVER been a case where the 3 year SOL was claimed on the premise of a credit card account being an "OPEN" ended account UNDER WASHINGTON STATUTES.


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.  
 

 

 

 

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@centex thank you for the advice about not being afraid to use the phone... I’m going to call them and start getting this straightened out. How would you advise I proceed? Just telling them my situation? I’m deeply appreciative for your help

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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.  

 

 

An interesting site that may supply some perspective 

https://library.nclc.org/shortening-limitations-period-credit-card-collection-lawsuits

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