credit card collection

[remmie2005]

What is the name of your state? Oklahoma

A few years ago I became disabled and, with the small disability check I recieve, I had to stop paying on my credit card so I could make my house payments.

I recieved a phone call from a collection company that claims they bought my balance.
They asked when I would be able to make a payment. I asked when was the last time "I" made any transactions on that acct. and was told Dec. 2001.

I told the guy that the sol was up on that acct. and I was no longer liable for it. He said "No, when a collection agency buys acct's, the time for liability starts then, and extends for 4 years". (He then asked me where I heard that from/who I've been talking to etc.) I told him it was none of his business and that he was wrong and to check his facts and quit bugging me.

I then recieved a letter from the collection agency about paying this acct.

I called and talked to the same person and said again that the sol was up on it. I also said that it was illegal for him to lie to me about the 4 years. He claimed he never said it - after I said it was illegal.

Then he said that Oklahoma law the sol is 5 years on credit cards. I asked him where he got his info and he said his boss was in the business for 50 years, and he got it from him. I said his boss was wrong and to check somewhere else for his facts.

I told him that I was going to send him a letter for ceasing the collections and for sol.

My questions:

Where do I get these forms? Can I hand write them if I can't get a printed out from the internet?

Can I put something in these letters about being LIED to?

Is there a way to have this taken off my credit record (because of sol) or is it just something time will have to take care of?

And, any other info you have would greatly be appreciated.

Thank you so much

 

[cmorris]

The statute of limitations for your state is 3 years from the date of last activity. That is NOT when the collection agency bought it--congrats on not being fooled.

You can write your own cease and desist (ie, Please stop all communication with me due to the expired statute of limitations on this account) or go to numerous websites. I personally like creditboards.com. Send it certified mail return receipt.

You can mention you were lied to in your letter, but I'm not sure what good it would do. His boss would probably congratulate him.

The reporting statute of limitations is 7.5 years, so it stays. However, there is a method you can use:

Order all 3 credit reports from Experian, Equifax, and TransUnion from their respective websites. Do not do a trimerge.

Instead of a cease and desist letter, send a debt validation letter, certified mail return receipt. Ask for proper validation and an accounting of this alleged debt as per the Fair Debt Collection Practices Act. You can state to only contact you by mail as phone calls are inconvenient.

When you get the green card back, send in a dispute to the applicable credit bureaus, disputing as "not mine." Send this also certified mail return receipt.

The collection agency will have to verify the tradeline to the credit bureaus. But here's the catch: the collection agency has to send you proper validation that the debt is yours FIRST. Validation has to come from the original creditor and prove that the debt is yours. If they don't get you validation first, and then verify the tradeline within 30 days, the tradeline gets deleted from your credit reports. If they verify first, you have them on a violation of federal law.

Good luck.

 

[remmie2005]

Thank you, cmorris, for all of the good info. I will get on the credit bureau and dept val. letter asap. You have helped ease my mind on this and for that, I am grateful.

 

[cmorris]

Your welcome! Be sure to check out creditboards--lots of good info there.

 

[remmie2005]

did credit collector leave himself open?

I'm not sure if I'm doing right by posting with old message, but i'm giving it a go.

Today I recieved a letter from that credit collector. He writes:

'We have attempted to contact you and settle this matter amicably. The statute of limitations for a credit card in the state of Oklahoma is five years from the date of last payment. Your unwillingness to address and resolve your outstanding debt is displeasing to our office and our client. There comes a time in the collection process that drastic actions must be taken to resolve the impasse.'
Then it continues on with talking about turning it over to an atty for a suit for amt past due, court costs, atty fees.

My question is:

Now that I have it in writing that they are using false statements, (the sol in Ok is 5 years) can I use that in my favor and make them sweat?? I have read up on this site and creditboards, and they talk about if a collector uses false statements to collect a debt that they can be fined/sued. Is that correct?

I'm not really a lawsuit type of person (sue anyone at the drop of a hat) but,, if they are doing it to me, they must be doing it to everyone else that they are trying to collect from. If I can make "them" sweat I'd be happy.

Thank you for any advice you can give me.

 

[cmorris]

You don't want to sue with just one letter.

See how they are reporting on your credit reports. If they are listing it as "open" or an installment, AND they verify the tradeline with the credit bureaus, you have yet another violation.

Send the debt validation letter (CMRR), and when you get the green card back, send a dispute to the credit bureaus.

Get enough proof of violations that they hang themselves. You don't want them to use the "bonafide error" excuse.

 

[cyana24]

I agree with cmorris. The CA is not using truly "false" statement but an inaccurate one.

It's apparent that the CA is using the five year SOL for "written accounts" rather than the three year SOL for "open accounts". Credit cards are defined by the Federal Truth in Lending Act as "open accounts".

I used to have the specific TILA reference concerning credit cards bookmarked but I changed computers and lost the bookmark. Perhaps Ladynred has a "stronger" reference for you. The clearest reference to the TILA regulations that I found doing a hasty search is on a lawfirm's website:

http://www.washoelegalservices.org/truth.htm#protect

"The Act covers both "open ended" and "closed ended" credit transactions. Open ended credit includes credit cards and revolving charge accounts. Under this form of credit you are authorized to purchase items on credit up to a certain limit and you pay interest on the outstanding balance each month."

If you do wind up in court by chance, and plan on using the expired SOL as your affirmative defense, expect the CA to cite credit cards as "written accounts" rather than "open accounts."

 

[Ladynred]

Well, you have a HUGE problem beause you're in OK !! Judges in OK are NOT buying the 3 year SOL for credit cards but are ruling that credit cards are written contracts and therefore subject to the FIVE year SOL. There isn't any OK case law to support the 3 year SOL and there are several OK residents on another forum who have tried arguing the 3 year SOL and have LOST every time.

Rather than face a lawsuit and a resultant judgment, you might want to seriously consider a settlement. Its an old debt, offer then 25% to start with and go from there. No way I'd offer them more than 50% on a 4 year old debt they paid pennies on the dollar for.

 

[cyana24]

!

Thanks, Ladyred for your wise input. But isn't TILA a FEDERAL law? How can a state level Judge override a federal law? Rhetorical question, of course.

 

[Ladynred]

Well Cyana, that's a very good question, but these OK judges are sticking to their 'written contract' guns and not budging. I was sent some interesting info a few weeks about a new case in court where a woman was arguing the 3 years SOL but I haven't heard yet what has become of that, if anything.

 

[remmie2005]

the turnip speaks

Thank you cmorris, cyana and Ladynred for the advice.

Yesss Ladynred, Oklahoma is quite a state isn't it.

Even though what I owe is around $800.00,, which is not alot to many, is a huge amt. to me 'now'. If I hadn't become disabled I wouldn't be in this mess, the credit card would be paid and I would still have pretty good credit.

But, even if I go through all this and the Ok. courts find against me,, as the saying goes "you can't get blood from a turnip". My credit would slide down a bit further, home might get attached etc., but,, I don't make enough money to go out and buy anything on credit anyway. (trying to find the silver lining in this)

Hopefully, after I do what all of you have suggested, things on this issue will end.

Thanks again to all of you. I am very grateful for this site and it's members

P.S. If it does go to court, I'll let you know if Okla. thumbs it's nose at the federal laws.

 

[guest.]

Oklahoma judges reject poor legal arguments, not federal law. The problem with the current case law about consumer credit cards is that is was argued by pro se defendants who didn't know what they were doing.

The SOL for "open accounts" is 5 years under the UCC 12A O.S 1971 § 2-725, contracts for sale (seasow v swearingen). A note in that caselaw states that before adoption of the UCC, 12 § 95(2) governed commercial open accounts. Consumer CC agreements aren't generally govened by the UCC.

There is no defined SOL for "open-ended" or "revolving" accounts. There is a 5 year SOL for contracts or agreements in writing 12 § 95(1) and a 3 year SOL for contracts or ageements not in writing 12 § 95(2). Your task would be to prove that a CC doesnt' constitute a contract or agreement in writing. That may be hard to do since the TILA specifically requires the creditor to disclose all the terms of the account in writing.

you can research okla statutes and case law at www.oscn.net

I wouldn't sweat it too much. I would dispute their entry on my CR and find out what counterclaims I had. Most of the time contested cases get dismissed by the plaintiffs attorney before trial if the defendant knows what they are doing.

Good luck

 

[remmie2005]

Thanks for the info guest.

I looked up the collection agency at oscn and found only "one" entry,, not sure what the lawsuit was for 'all greek to me' , but,, the collection agency lost the case. The suit was back a few years, so, I know the agency has been around, just not suing it seems.

Hopefully, I won't be the second one listed on oscn's site.

I have recieved great info from all of you who answered and appreciate the input.

One more question, if you don't mind :

Since this is going on, should I wait until June 1st of this year to get my free copy of my credit report?
Or, since they are threatening action will I be able to get it free?

And (since I really cannot afford to pay for the cr's), should I just order from one company and after I send the debt validation letter, order the others?

Oooops,, that's more than "one more question" , sorry.

Those questions probably sound like no-brainers to you guys, but, I'm new at this stuff. Everyone on here has been helpful and so nice! It helps me a great deal to have a place like this to turn to.

I'll try not to come up with more questions to bug all of you with after this post (no guarantees though). After I do what everyone on here says and it looks like things aren't going well I'll probably try to go to legal aid, if they can squeeze me in.

Thank you very much for all your responses.

 

[guest.]

Its only about a week away so I'd wait for the freebies. Not much chance they would get filed and have you served between now and then. You would get 35 days after they serve you to get your answer in.

Might keep an eye on your name in OSCN, so if they do file you would get a "heads up" and can start putting your answer together. If your county is not in the oscn, click "search dockets" and then "non ocis counties" on the next page.

 

[guest.]

I was sent some interesting info a few weeks about a new case in court where a woman was arguing the 3 years SOL but I haven't heard yet what has become of that, if anything.

Nothing has happened there as of yet. One problem I have discovered in the case is that is the counters were late. Probably explains why there has been no response to them.