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Collection agency calling on my work line


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19 replies to this topic

#1 shadekitty

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Posted 15 April 2018 - 11:00 PM

All debts are past SOL, they sadly don't leave any fun voicemails for me either. The numbers show up as collection agencies on caller ID.

I assume I just need to send a FOAD letter to them at this point?



#2 cashnocredit

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Posted 16 April 2018 - 12:50 AM

Yup



#3 legaleagle2012

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Posted 16 April 2018 - 06:24 AM

Be specific. Tell them per USC 1692, the FDCPA, they are not to contact you by phone at home or at work. Do it in wiriting, certified mail.



#4 centex

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Posted 16 April 2018 - 10:15 AM

Not discussed is whether this is personal or business debt.  If it isn't personal debt, then the protections of some statutes don't exist.  Know the law you want to claim protection under before asserting such protections...

 

if this IS consumer debt, then you have to specify, in writing, that calls to a particular number are not to be made AND the reason needs to be outlined.  Until such an event has occurred, they are free to call at any number they have for you, to include office lines.



#5 shadekitty

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Posted 16 April 2018 - 02:27 PM

Not discussed is whether this is personal or business debt.  If it isn't personal debt, then the protections of some statutes don't exist.  Know the law you want to claim protection under before asserting such protections...

 

if this IS consumer debt, then you have to specify, in writing, that calls to a particular number are not to be made AND the reason needs to be outlined.  Until such an event has occurred, they are free to call at any number they have for you, to include office lines.

Personal debt, nothing at all to do with my job. 



#6 tiggerlgh

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Posted 16 April 2018 - 03:11 PM

They are allowed to call you there until you send in a C&D letter.

#7 legaleagle2012

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Posted 17 April 2018 - 05:46 AM

What state? Attempting to collect a debt beyond the SOL is a violation in most circuits.



#8 centex

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Posted 17 April 2018 - 09:22 AM

What state? Attempting to collect a debt beyond the SOL is a violation in most circuits.

No it isn't.  And since OP has yet to send the appropriate letter, they can indeed continue, in accordance with the contractual agreements, to seek to collect the amount walked.



#9 legaleagle2012

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Posted 18 April 2018 - 05:58 AM

It depends on what they say when they call or write.  

 

 If state law is violated because, for example, the amount sought by a debt collector is neither authorized by agreement “nor permitted by law,” then the FDCPA is likewise violated. See, e.g. FDCPA, 15 U.S.C. § 1692f(1), §1692e(2), § 1692e(5), § 1692e(10); Newman v. CheckRite, 912 F.Supp. 1354, 1376 (E.D. Cal. 1995); West v. Costen, 558 F.Supp. 564, 573 (W.D. Va. 1983).
 
 
Filgueiras v. Portfolio Recovery Assocs., Inc., 2016 WL 1626958 (D. N.J. April 25, 2016) (While appropriate for a debt collector to request voluntary repayment of a time-barred debt, if the statute of limitations is unclear, a letter that presents “settlement options” is potentially misleading, and states a prima facie FDCPA claim, and motion to dismiss reversed; another letter that stated “settlement in full,” however, did not violate FDCPA where debtor was notified “because of age of your debt, we will not sue you for it”)
 
Buchanan v. Northland Group, Inc., 776 F.3d 393, 395 (6th Cir. 2015) (Settlement offer made on time-barred debt; this settlement offer creates confusion to the least sophisticated debtor; the use of the term “settlement offer” falsely implies that payment could be compelled through litigation.”)
 
McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1020, 1021 (7th Cir. 2014) (“If the debt collector uses language in its dunning letter that would mislead an unsophisticated consumer into believing that the debt is legally enforceable, regardless of whether the letter actually threatens litigation, the collector has violated the FDCPA.”)
 
Huertos v. Galaxy Asset Mgmt., 641 F.3d 28, 33-34 (3rd Cir. 2011) (FDCPA not violated by collection activity on time-barred debt where letter merely asked the debtor to “resolve” the issue, but did not provide for or offer a “settlement”)
 
Larsen v. JBC Legal Corp., P.C., 533 F.Supp.2d 290, 301-03 (E.D. N.Y. 2008) (threatening legal action on time-barred debt violates FDCPA.)
 
Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767, 771 (8th Cir. 2001) (“[I]n the absence of a threat of litigation or actual litigation, no violation of the FDCPA has occurred when a debt collector attempts to collect on a potentially time-barred debt that is otherwise valid.”)
 
Wallace v. Capital One Bank, 168 F.Supp.2d 526, 527-29 (D. Md. 2001) (debt validation notices that were silent as to whether debt was time barred but which did not threaten collection action did not violate FDCPA)
 
Shorty v. Capital One Bank, 90 F.Supp.2d 1330, 1331-33 (D.N.M. 2000) (sending a debt validation notice regarding time-barred debt, without more, does not misrepresent the status of the debt and does not violate the FDCPA)
 
Beattie v. D.M. Collections, Inc., 754 F.Supp. 383, 393 (D. Del. 1991) (“[T]hreatening of a lawsuit which the debt collector knows or should know is unavailable or unwinnable by reason of a legal bar such as the statute of limitations is the kind of abusive practice the FDCPA was intended to eliminate.”)
 
Kimber v. Fed. Fin. Corp., 668 F.Supp. 1480, 1487 (M.D. Ala. 1987) (“[A] debt collector’s filing of a lawsuit on a debt that appears to be time barred, without the debt collector having first determined after a reasonable inquiry that that limitations period has been or should be tolled, is an unfair and unconscionable means of collecting the debt.”)
 
Even where the “threat” of litigation is not express or direct, an implied threat may violate the FDCPA. See, e.g., Huertas, supra, 641 F.3d at 33-34; Perretta v. Capital Acquisitions and Mgmt. Co., 2003 WL 21383757 (N.D. Cal. 2003) (FDCPA claim stated where collection letter stated that failure to work with collector could lead to “further steps being taken”); Stepney v. Outsourcing Solutions, Inc., 1997 WL 722972 at *4-5 (N.D. Ill. 1997) (FDCPA claim stated where collection letter stated if debt paid “no further collection action” would be taken).
 
 
Buchanan v. Northland Group, Inc., supra, 776 F.3d at 395, the debt collector made a “settlement offer” in its collection demand letter. The debt was time barred. The Court found that making a “settlement” offer implied that the debt could have been successfully sued upon or enforced, and, hence, the offer impermissibly and misleadingly threatened the debtor under the FDCPA. Id.
 
Likewise, in McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1021-1022 (7th Cir. 2014), the Court of Appeals for the Seventh Circuit determined the collection letter violated the FDCPA because it offered to “settle” an out-of-statute debt, but failed to disclose the fact the debt was beyond the applicable statute of limitations. The court observed that:
 
[A] settlement offer on a time-barred debt implies that the creditor could successfully sue on the debt. If unsophisticated consumers believe either that the settlement offer is their chance to avoid court proceedings where they would be defenseless, or if they believe that the debt is legally enforceable at all, they have been misled, and the debt collector has violated the FDCPA.


#10 tiggerlgh

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Posted 18 April 2018 - 07:29 AM

How does any of those apply to the OP? They haven’t sent a C&D and haven’t talked to the CA? This just confuses others reading this that those apply when they do not.

#11 JunkBuyersWorstNightmare

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Posted 18 April 2018 - 11:46 AM

What state? Attempting to collect a debt beyond the SOL is a violation in most circuits.

 

Only in MS and WI.



#12 legaleagle2012

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Posted 19 April 2018 - 06:37 AM

How does any of those apply to the OP? They haven’t sent a C&D and haven’t talked to the CA? This just confuses others reading this that those apply when they do not.

  I was responding to Centex. If that confused you, not my problem.



#13 legaleagle2012

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Posted 19 April 2018 - 06:49 AM

 

What state? Attempting to collect a debt beyond the SOL is a violation in most circuits.

 

Only in MS and WI.

 

 

 

That's the statute of repose. It has nothing to do with the FDCPA.

 

WI  893.89 Action for injury resulting from improvements to real property.

 

MS 15-1-41   No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property...against any person, firm, or corporation...more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first... However, in cases involving fraudulent concealment, the statute of repose may be tolled. A party purporting that there has been fraudulent concealment, thus tolling the statute of repose, must show (1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) due diligence was performed by the party to discover it.”

 

Care to tell us what that has to do with a credit card SOL?



#14 ICANHASMUNY?

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Posted 21 April 2018 - 06:23 AM

 

 

What state? Attempting to collect a debt beyond the SOL is a violation in most circuits.

 

Only in MS and WI.

 

 

 

That's the statute of repose. It has nothing to do with the FDCPA.

 

WI  893.89 Action for injury resulting from improvements to real property.

 

MS 15-1-41   No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property...against any person, firm, or corporation...more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first... However, in cases involving fraudulent concealment, the statute of repose may be tolled. A party purporting that there has been fraudulent concealment, thus tolling the statute of repose, must show (1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) due diligence was performed by the party to discover it.”

 

Care to tell us what that has to do with a credit card SOL?

 

 

Wrong Statute

 

https://docs.legis.w...atutes/893/I/05

 
893.05  Relation of statute of limitations to right and remedy. When the period within which an action may be commenced on a Wisconsin cause of action has expired, the right is extinguished as well as the remedy. History: 1979 c. 323.
 
Judicial Council Committee's Note, 1979: This new section is a codification of Wisconsin case law. See Maryland Casualty Company v. Beleznay, 245 Wis. 390, 14 N.W.2d 177 (1944), in which it is stated at page 393: “In Wisconsin the running of the statute of limitations absolutely extinguishes the cause of action for in Wisconsin limitations are not treated as statutes of repose. The limitation of actions is a right as well as a remedy, extinguishing the right on one side and creating a right on the other, which is as of high dignity as regards judicial remedies as any other right and it is a right which enjoys constitutional protection". [Bill 326-A]
 
The expiration of the limitations period extinguishes the cause of action of the potential plaintiff and it also creates a right enjoyed by the would-be defendant to insist on that statutory bar. A defendant, having acquired a right to assert the statute of limitations bar by operation of law, would suffer plain legal prejudice if a plaintiff's motion for voluntary dismissal were granted. Wojtas v. Capital Guardian Trust Co. 477 F.3d 924 (2007).


#15 tiggerlgh

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Posted 21 April 2018 - 10:50 AM

How does any of those apply to the OP? They haven’t sent a C&D and haven’t talked to the CA? This just confuses others reading this that those apply when they do not.

  I was responding to Centex. If that confused you, not my problem.

Not me but it could others and none of this helps OP

#16 shadekitty

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Posted 21 April 2018 - 11:48 PM

I'm in PA. They can keep calling till I tell them to,stop in writing.

 

I'm way past SOL, so will be sending letters to them as well as a few others I keep getting letters from. 



#17 ICANHASMUNY?

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Posted 22 April 2018 - 02:58 AM

PA has new consumer protections 

 

check it out 

 

https://creditboards...49#entry4816925



#18 shadekitty

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Posted 22 April 2018 - 03:10 PM

Thanks for the link!

PA has new consumer protections 

 

check it out 

 

https://creditboards...49#entry4816925



#19 legaleagle2012

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Posted 23 April 2018 - 07:08 AM

 

 

 

What state? Attempting to collect a debt beyond the SOL is a violation in most circuits.

 

Only in MS and WI.

 

 

 

That's the statute of repose. It has nothing to do with the FDCPA.

 

WI  893.89 Action for injury resulting from improvements to real property.

 

MS 15-1-41   No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property...against any person, firm, or corporation...more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first... However, in cases involving fraudulent concealment, the statute of repose may be tolled. A party purporting that there has been fraudulent concealment, thus tolling the statute of repose, must show (1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) due diligence was performed by the party to discover it.”

 

Care to tell us what that has to do with a credit card SOL?

 

 

Wrong Statute

 

https://docs.legis.w...atutes/893/I/05

 
893.05  Relation of statute of limitations to right and remedy. When the period within which an action may be commenced on a Wisconsin cause of action has expired, the right is extinguished as well as the remedy. History: 1979 c. 323.
 
Judicial Council Committee's Note, 1979: This new section is a codification of Wisconsin case law. See Maryland Casualty Company v. Beleznay, 245 Wis. 390, 14 N.W.2d 177 (1944), in which it is stated at page 393: “In Wisconsin the running of the statute of limitations absolutely extinguishes the cause of action for in Wisconsin limitations are not treated as statutes of repose. The limitation of actions is a right as well as a remedy, extinguishing the right on one side and creating a right on the other, which is as of high dignity as regards judicial remedies as any other right and it is a right which enjoys constitutional protection". [Bill 326-A]
 
The expiration of the limitations period extinguishes the cause of action of the potential plaintiff and it also creates a right enjoyed by the would-be defendant to insist on that statutory bar. A defendant, having acquired a right to assert the statute of limitations bar by operation of law, would suffer plain legal prejudice if a plaintiff's motion for voluntary dismissal were granted. Wojtas v. Capital Guardian Trust Co. 477 F.3d 924 (2007).

 

 

 

Not exactly. OP referred to WI and MS specifically, which are the only 2 states that have a statute of repose. As I pointed out, the SOR has no bearing on credit card cases. The section you quoted proves that and controls in CC cases.



#20 ICANHASMUNY?

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Posted 23 April 2018 - 06:40 PM

 

 

 

 

What state? Attempting to collect a debt beyond the SOL is a violation in most circuits.

 

Only in MS and WI.

 

 

 

That's the statute of repose. It has nothing to do with the FDCPA.

 

WI  893.89 Action for injury resulting from improvements to real property.

 

MS 15-1-41   No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property...against any person, firm, or corporation...more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first... However, in cases involving fraudulent concealment, the statute of repose may be tolled. A party purporting that there has been fraudulent concealment, thus tolling the statute of repose, must show (1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) due diligence was performed by the party to discover it.”

 

Care to tell us what that has to do with a credit card SOL?

 

 

Wrong Statute

 

https://docs.legis.w...atutes/893/I/05

 
893.05  Relation of statute of limitations to right and remedy. When the period within which an action may be commenced on a Wisconsin cause of action has expired, the right is extinguished as well as the remedy. History: 1979 c. 323.
 
Judicial Council Committee's Note, 1979: This new section is a codification of Wisconsin case law. See Maryland Casualty Company v. Beleznay, 245 Wis. 390, 14 N.W.2d 177 (1944), in which it is stated at page 393: “In Wisconsin the running of the statute of limitations absolutely extinguishes the cause of action for in Wisconsin limitations are not treated as statutes of repose. The limitation of actions is a right as well as a remedy, extinguishing the right on one side and creating a right on the other, which is as of high dignity as regards judicial remedies as any other right and it is a right which enjoys constitutional protection". [Bill 326-A]
 
The expiration of the limitations period extinguishes the cause of action of the potential plaintiff and it also creates a right enjoyed by the would-be defendant to insist on that statutory bar. A defendant, having acquired a right to assert the statute of limitations bar by operation of law, would suffer plain legal prejudice if a plaintiff's motion for voluntary dismissal were granted. Wojtas v. Capital Guardian Trust Co. 477 F.3d 924 (2007).

 

 

 

Not exactly. OP referred to WI and MS specifically, which are the only 2 states that have a statute of repose. As I pointed out, the SOR has no bearing on credit card cases. The section you quoted proves that and controls in CC cases.

 

 

Nice Save. 






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