SOL defense for Credit Debt?

[JETX]

"Unless a debtor has in his possession a letter from the OC stating that on a particular date an account will be chargedoff you'll never know for certain the exact date a chargeoff occured."
*** I agree with that statement in principal, but it is not the issue. Whenever the date becomes critical (as in a lawsuit claiming a defense of SOL expiration) it is IMPERATIVE that the defendant be prepared to prove the claim as to date. And the only way to do that convincingly is to use the records obtained from the plaintiff (creditor). Granted, the defense can make a 'assumptive' statement as you suggest, but it leaves them open to substantial challenge by the plaintiff. Isn't it better to KNOW when you enter court than to just 'think you know'?

"But, I think subtracting 180 days from chargeoff and quoting the FDIC regs will sure force the ca lawyer to prove otherwise."
*** And here, I disagree. The party making the claim ("Your Honor, the SOL has tolled") has to prove that. The other party (plaintiff) doesn't have to prove it for him/her.

"I know up until a couple of years ago, MBNA and, BOA chargedoff stuff at 150 days but now, everyone trys to put it off to the last possible day-per FDIC regs."
*** Here again, I disagree. Some creditors simply don't want to deal with old debt. And they charge it off early. (I really don't see any 'justification' to "put it off to the last possible day"... do you??). The FDIC rules say it must be done "no later than", but it can be done earlier. As noted in my earlier post, I have seen charge-offs in as early as two months!!

"I mean, if you claim the last time you paid was 180 days prior to chargeoff the CA lawyer will need to get someone from the OC to testify that they had another policy in force at the time that provided for a shorter time period."
*** Nope. All the plaintiff has to say is.... "Your Honor, here are the records as maintained by the creditor and they show XX/XX/XX as the last date of activity". It would then be up to the defendant (debtor) to show a different date or to disprove their offering. And right or wrong, unless there is something very suspect in a businesses records (or they can be challenged as to validity), most courts lean towards accepting offered records over an individuals vague 'rememberances'.

 

[bigun]

Jetx,

I apologize for the confusion. I'm doing an awful job of expressing my thoughts.
What I'm trying to say is, you can easily get the creditors chargeoff policy. You can find it in the 10-Q reports they file with the SEC. It'll start as a line item called managed chargeoff and show a number for 90 and 120 days and finally, chargeoff .Online services have these reports. Wouldn't SEC records be acceptable?
In fact, you could subponea the banks CFO and ask what the chargeoff policy was for a particular fiscal year.

Many banks in trouble do put it off to the bitter end. Providian and Metris come to mind. Just stretch it out as far as possible and hope things turn around and the default rates drop. It's not so much a problem as dealing with bad debt but, many cc's have been securitized and placed in pools. When the default rate reaches a certain point, the OC is obligated to pump more cash into the pool. Metris and Providian have both had to meet a margin call if you will.

 

[JETX]

Bigun.... I hate to keep butting on this.... but why would a debtor (defendant) rely on an abstract (creditor policy regarding charge-offs, charge-off date on CRA file, etc.) when it is relatively simple to just ask the creditor (or debt owner) to validate the debt and include a request for SPECIFIC information.... like the FULL credit payment history from account opening???

Once the debtor gets that information, they can then reconcile the account history with their records (yeah, right!!!) and see if there are any discrepancies. If there are, he could use those FACTS to invalidate the plaintiffs records in court!!
This is not 'black box' science.... and is relatively easy to do.

 

[bigun]

I didn't realizewe were butting heads. Of course, do the validation route. In fact, I think I agreed with your advise to the OP {BTW, where the hell is he!}.
I was just trying to get clear on the other stuff. I should have started a different thread. Thanks!

 

[JETX]

No problem... and yes, I will still respect you in the morning!!!

 

[TToby]

Wow! You guys lost me! What is the charge off date?
OK..so here's what I know now:

The CA is NCO Portfolio Management, Inc.
Assignee of AT&T Universal Card

although there is an attachment - it's a Purchase Agreement between Performance Capitol Management and Creditrust Corp. dated 8/14/98 whatever that means. Actually, there are several attachments but they don't seem to make a lot of sense and the affadavit has the wrong balance due on it!

I can obtain a copy of my credit report but not the cosigner's. I tried to locate the cosigner to ask if he's ever paid anything but I can't find him and his SS# isn't on the summons.

I will send a letter asking them to validate. Will that also show when the last payment was made?

Also, any advice on how to get a decent attorney? My brother has a friend who is a collections attorney who says credit card debts are considered Written Contracts. Everything I've found says that they are considered open accounts. He said he'd get back to me and didn't. I called another attorney today who isn't interested in helping me unless I want to file a Bankruptcy!!! I have no reason to file a bankruptcy so I hung up on him.

I'm so frustrated.

 

[bigun]

Do what Jetx suggested before I got him sidetracked. Demand validation and demand a payment history. Send it CRRR.
Check with the state of Ill and see if NCO is doing business legally in the state.
http://www.lawdog.com/states/il/st1c.htm

Here is a site that may help with a lawyer:

www.naca.net

Here is another site with a lot of SOL stuff

http://community-2.webtv.net/Y-chat/WhyChatsCredit/

And, get your credit reports and see what they say.

 

[TToby]

Thanks for all of your help. I will send the letter tomorrow.

 

[Ladynred]

I'll butt in here once more with my 2 cents......

JetX, you're right about the validation and requesting it to get the records and the EXACT date to use for SOL.. however....

Where the problem USUALLY lies, though, is actually GETTING the validation from whoever you're demanding it from. There are far too many CA's - and NCO is typical, that just flat out REFUSE to validate or they send some lame computer printout from their systems, which is NOT appropriate validation per the FTC. The fact that the majority of CA's will NOT validate and blatantly ignore the FDCPA as far as having to provide it when requested, is the biggest stumbling block for people. Since there is no set time limit on a CA to provide said validation, they could - technically - drag their feet for years !

I myself requested validation from a CA last July.The CA was Surpas, and the debt in question was a mere $15, and it was listed as a charge-off by the OC (it also happens to be a now-defunct clothing store chain). MY argument with it and the reason for the validation demand is that I KNOW that the account was paid off, IN FULL almost 2 years ago and I have the cancelled check and the original statement to prove it !!! Surpas NEVER validated, but they DID verify it with the CRAs when I disputed it, and Surpas NEVER marked the account as 'in dispute'. So.. they ignored the FDCPA, they violated the FCRA, and what did they do ?? They dumped the stupid $15 debt to another CA - and that one hasn't validated either !!

So, validation may be the way to get the needed EXACT dates, but the trick here is actually GETTING that documentation. The OP is dealing with NCO - they almost NEVER validate and from what I've read of hundreds of posts concerning them, when they do attempt to validate, what they send is bull. They don't mark the accounts as 'in dispute' either - but they think they're so big that they can thumb their noses at the laws.

I just happen to be one of those people that DOES have the records - cancelled checks and bank statements, as well as creditor statements on which I ALWAYS note the date it was paid, what check number and the amount. Call me a pack rat, but I keep ALL of this paper crap for YEARS... for obvious reasons.

 

[JETX]

Actually, it isn't that hard.....

Lets take a look at the two most common cases.....

1) CA claiming debt, no lawsuit:
Debtor makes CORRECT request for validation, specifically listing the requested information. If the CA doesn't comply, debtor can file small claims action against CA. And if they can show the court that the CA failed to respond, or was non-responsive in their answer..... the debtor can get a $1000 judgment against the CA.

2) CA files lawsuit:
Debtor has hopefully either already made his ACCURATE validation request, or does immediately on notice of suit. This can be done via 'normal' validation request or as pre-trial discovery request. As long as the CA or creditor fails to respond, the lawsuit is STOPPED. In fact, if the request is made by discovery request AND the plaintiff fails to answer, the court can dismiss the case or at least slap sanctions on them for failing to respond as required.

Most of this is already clearly noted (with applicable precedent or law at the following site:
http://www.creditinfocenter.com/eBooks/PoorMansClassActionLawsuit.shtml


I also need to clarify something in your post.....
You said "Since there is no set time limit on a CA to provide said validation, they could - technically - drag their feet for years !"
*** That really isn't correct. The FDCPA requires that the CA cease ALL collection efforts until they validate (§809(b)). So, their failure to comply stops THEM in their tracks. And while they are stopped..... the SOL clock still ticks. So, if they "drag their feet for years" as you say..... the debt dies!!!

And one final comment.... that everyone seems to keep forgetting. Once the CA makes the initial contact (usually by phone), the FDCPA REQUIRES (see §809(a)) them to send a follow up letter, with specific information, within 5 days of that contact. 99.9% of the time, that doesn't happen!!! The first thing I recommend is that the debtor request a copy of this letter from the CA (in the validation letter and/or pre-trial discovery)!!!! The CA can NEVER produce it.... thereby making a prima facie case against them.... before they even step in court!!!

Debt collectors live off peoples ignorance of the laws. And a huge number of these scum-sucking, bottom-feeding collectors will be put OUT OF BUSINESS if the public would just demanded that they comply with the already-existing laws. It costs them far more money to type and send a letter (as required) than it does to have some minimum wage boiler-room 'tele-terrorist' contact you!! And that extra cost will shut them down!!

 

[bigun]

Jetx,

I agree with much of your post. There are a number of people on both creditnet and, creditboards have demanded validation a few times and then, sued when they didn't get anything and either won or, dropped the case in exchange for a deletion.
The last part of your post about receiving a letter in 5 days has been discussed at lenght on creditnet and I know of 2 people who've filed lawsuits on that issue and they both lost. The CA's cited 2 Federal Court cases. Mahon vs Credit Bureau of Placer County {A 9th Circuit appeals decison} and, a case from Federal District Court in Hawaii {I'll have to look that one up} where the courts ruled that the CA does not have to prove a debtor received anything. The judge just must be convinced that in the normal course of business, it's more than likely the letter was mailed. The case goes on to dicuss the automated mailing systems where computers automatically generate a letter that many businesses use.
And, this creditnetter felt her CA didn't tell the truth either:

Judgement for the DEFENDENT ?!?!?!?!?!

Basically in a nutshell it said we didn't meet our burden of proof. I find that EXTREMELY hard to believe, considering the defendents OWN documents nailed their ass to the wall.

The paperwork went on to say the defendents provided substantial "exhibits" proving they did everything within their power to assure the laws were NOT broken.

PUHLEASE!!! They made up those documents the nights before the case, I swear the ink was still fresh!

I seriously thought we would AT LEAST win, with maybe a couple hundred bucks for after Christmas shopping.

It was a learning experience that I will not do again.

What are your thoughts on this Jetx {and others of course}. What {if anything} could be done to counter these arguments?
A great thread in the making! Hope it is of some help to the OP and others.

 

[TToby]

Thanks again everyone for your input.

First I'd like to address the comment by JetX:

"Once the CA makes the initial contact (usually by phone), the FDCPA REQUIRES (see §809(a)) them to send a follow up letter, with specific information, within 5 days of that contact. 99.9% of the time, that doesn't happen!!! "

I haven't been contacted by them in at least 6 years. They had me served last Thurs at my POE. The suit has an address that I haven't lived at for 7 years and it has my maiden name (I've been married for 2 years). Were they supposed to try and contact me regarding the debt before sending the summons?

I will be sending the validation request today with a payment history request also. Are they required to send me these before my court date (which is 8/11)? What if they don't? Does the case get pushed back? Will I lose because I have no evidence?

Last but not least....
I am 7 months pregnant and won't be working in a few months. If I should lose, they will have no paychecks to garnish. Can they come after assets my husband and I have? (House, cars, bank accounts)

 

[Ladynred]

Interesting thread indeed

JetX you said:

*** That really isn't correct. The FDCPA requires that the CA cease ALL collection efforts until they validate (§809(b)). So, their failure to comply stops THEM in their tracks. And while they are stopped..... the SOL clock still ticks. So, if they "drag their feet for years" as you say..... the debt dies!!!

Ok.. so I was being a TAD facetious and you are, of course, correct that the debt dies if it took them years. Unfortunately, even when they fail to comply with validation requests, most of these scumbag CA's do NOT cease collection efforts - further tromping on the law.

As you said, they count on people not knowing the laws and taking advantage of that. I DO know what the laws say, but I can't take the time off from work to pursue these cretins in court for *maybe* an award of $1000 - and they get a slap on the wrist ! If I didn't work and had the luxury of time (and money) to do all that is necessary to nail their butts to the wall, I would.

As for your 'accurate validation request' - there is nothing in the FDCPA or anything else I've read that says the debtor has to tell the CA what to produce to prove the alleged debt . In fact, the FDCPA itself doesn't specify much at all. Only when we get to the FTC opinion letters, like Wollman, and cases like Spears v. Brennan, is there anything that says what is and is NOT to be provided to a debtor as PROPER validation.

 

[bigun]

TToby,

Don't let one thing get lost in this shuffle. Respond to the lawsuit with the SOL defense and a general denial. You might also request a continuance . AT the time of the hearing you'll be 8 months pregant. It would be worth seeing a lawyer about helping you get a continuance for 6 months or so. It seems most unreasonable to expect someone who will be 8 months pregant to prepare for and attend a trial.

 

[JETX]

Wow, stacking up on me, huh????

Okay, lets try to take this one step at a time.....
"The judge just must be convinced that in the normal course of business, it's more than likely the letter was mailed."
*** Regretably, that is true.... in some courts. And I would anticipate that as a position in my pre-trial discovery... asking for a copy of the 'notice'... then see what their response is BEFORE the trial.

" there is nothing in the FDCPA or anything else I've read that says the debtor has to tell the CA what to produce to prove the alleged debt"
*** Correct, and that is one of the reasons why I continue to refer to the sample letter at http://www.creditinfocenter.com/. It asks for specific information rather than just a general vague request for 'records'.