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SOL defense for Credit Debt?
- Thread starter TToby
- Start date
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"Let's not forget TToby in this discussion."
*** Sorry about that!!
"By the trial date, she'll be 8 months pregant. Do you think she'd be able to get a continuance for a few months or more?"
*** Unless there is some other medical complication other than a 'simple' pregnancy, no.
"I haven't been contacted by them in at least 6 years."
*** As previously noted, get your SOL information. That will tell you LOTS about what next steps might be. If the SOL has truly expired, then simply show up and offer that as your defense. If you have not received the requested validation information (or response to pre-trial discovery), then use that as the reason to reset the trial date.
"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)."
*** Though these might go to support your claim of SOL expiration (by dating), these are irrelevant in value.
"Were they supposed to try and contact me regarding the debt before sending the summons?"
*** There is no obligation for them to 'pre-contact' you.
"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?"
*** See above. If they have not sent you the required information, ALL efforts must stop... including the lawsuit. Simply let the court know that they have failed to comply... and that any furtherence would be in violation of the FDCPA.
"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)"
*** If you lose, they can go after any non-exempt assets in the judgment debtors name. That would be anything owned by you, either in single name or joint.
*** Sorry about that!!
"By the trial date, she'll be 8 months pregant. Do you think she'd be able to get a continuance for a few months or more?"
*** Unless there is some other medical complication other than a 'simple' pregnancy, no.
"I haven't been contacted by them in at least 6 years."
*** As previously noted, get your SOL information. That will tell you LOTS about what next steps might be. If the SOL has truly expired, then simply show up and offer that as your defense. If you have not received the requested validation information (or response to pre-trial discovery), then use that as the reason to reset the trial date.
"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)."
*** Though these might go to support your claim of SOL expiration (by dating), these are irrelevant in value.
"Were they supposed to try and contact me regarding the debt before sending the summons?"
*** There is no obligation for them to 'pre-contact' you.
"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?"
*** See above. If they have not sent you the required information, ALL efforts must stop... including the lawsuit. Simply let the court know that they have failed to comply... and that any furtherence would be in violation of the FDCPA.
"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)"
*** If you lose, they can go after any non-exempt assets in the judgment debtors name. That would be anything owned by you, either in single name or joint.
Awww.. JetX.. we're not piling up on ya .. its just a lively discussion. Besides, you have ample 'weaponry' to hold your own 
I've used that same sample letter, and even added a few things to it - not that I really expected to get even 50% of it. Kristy's letter is a good one for sure.
I've used that same sample letter, and even added a few things to it - not that I really expected to get even 50% of it. Kristy's letter is a good one for sure.
Lady,
When you've some time to kill, go to creditnet and in the search box type in the user name mozilla. One of my all time favorite posters! He was the first to sue a student loan guarnator pro se in Federal Court and win. He posted a ton of good stuff but this was a keeper! Last I heard, mozilla had enrolled in law school.
I have a three hour videotape of a collection agency representative testifying in a deposition. She states the most outrageous things. 1) In updating information to CRA's she never deleted prior payment history derogatories that were false, 2) Never reported the accounts as disputed, 3) Never checked the "add, change, delete" boxes at the top of the universal data form.
Another employee (not on videotape) testified that she always noted the closed date on the universal data form as 7 years after the date a debt was paid off.
The tape is really sinister when you see it. She essentially testifies that when an account was disputed, she didn't have the clearance to change the borrowers status in their system if it was wrong. In my case, she wrote me a letter stating my account was paid in full. However, the status was never updated to paid in full in the system. It is clear from the tape that that was the way it was done. The borrower gets told his loans were paid in full, but the status never gets changed to paid in full in the system. So, of course, the false information goes right back on the credit report next time an update is done. This is really worth seeing. I'll send free tapes out to the first 10 persons who email me. stephen_m_anderson@msn.com
His entire story is pretty interesting. Before he was done, he'd taken a bite out of a CRA as well as the CA and the OC!
When you've some time to kill, go to creditnet and in the search box type in the user name mozilla. One of my all time favorite posters! He was the first to sue a student loan guarnator pro se in Federal Court and win. He posted a ton of good stuff but this was a keeper! Last I heard, mozilla had enrolled in law school.
I have a three hour videotape of a collection agency representative testifying in a deposition. She states the most outrageous things. 1) In updating information to CRA's she never deleted prior payment history derogatories that were false, 2) Never reported the accounts as disputed, 3) Never checked the "add, change, delete" boxes at the top of the universal data form.
Another employee (not on videotape) testified that she always noted the closed date on the universal data form as 7 years after the date a debt was paid off.
The tape is really sinister when you see it. She essentially testifies that when an account was disputed, she didn't have the clearance to change the borrowers status in their system if it was wrong. In my case, she wrote me a letter stating my account was paid in full. However, the status was never updated to paid in full in the system. It is clear from the tape that that was the way it was done. The borrower gets told his loans were paid in full, but the status never gets changed to paid in full in the system. So, of course, the false information goes right back on the credit report next time an update is done. This is really worth seeing. I'll send free tapes out to the first 10 persons who email me. stephen_m_anderson@msn.com
His entire story is pretty interesting. Before he was done, he'd taken a bite out of a CRA as well as the CA and the OC!
SS
ßillcollector
Guest
Actually OC & CA wish those who have means to pay rather not pay their bills voluntarily. If I were a collection agency, I would rather add court costs and attorney fees on the top of the debt from someone than to settle for 50%.
Collections is basically an intimidation tactics designed for debtors to get scared and/or pi$$ed off. While debtors and collectors are fighting, its the big corporation executives who are cashing in. Education is the key here.
BTW, some collectors earn quite a bit, hardly minimum wage.
SOL Defense - new question
Hi all and thanks again for all of your help. I have yet another question...
I just got a copy of my credit report and am totally confused:
It shows that I opened this acct 12/93
Reported Since: 10/99
Last reported: 5/2000
High Balance: 1287.00
Recent Balance: 1287.00
Recent payment: $0
Why is this being reported so late? I cncld this card in 1995.
Does this screw me out of my SOL defense?
Hi all and thanks again for all of your help. I have yet another question...
I just got a copy of my credit report and am totally confused:
It shows that I opened this acct 12/93
Reported Since: 10/99
Last reported: 5/2000
High Balance: 1287.00
Recent Balance: 1287.00
Recent payment: $0
Why is this being reported so late? I cncld this card in 1995.
Does this screw me out of my SOL defense?
Obvoiusly, there is contradictory information.... and further reason for you to get a PROPER validation from the creditor.
Use the sample letter from http://www.creditinfocenter.com
Use the sample letter from http://www.creditinfocenter.com
Thanks again JETX
I have sent the validation request using the sample letter (and I added a request of complete payment history) CRRR to both the attorney and the CA. I have also spoken to the cosigner who said that he was living out of state until recently and that he hasn't had any contact with them at all.
Isn't this illegal for them to still be reporting it?
One last question...If they don't send validation and the judge believes that they sent it in the normal course of business as in the case described by BIGUN, I have nothing. There is no payment shown in my credit report. How would I defend SOL? Would the judge grant me a continuance to properly defend myself?
I have sent the validation request using the sample letter (and I added a request of complete payment history) CRRR to both the attorney and the CA. I have also spoken to the cosigner who said that he was living out of state until recently and that he hasn't had any contact with them at all.
Isn't this illegal for them to still be reporting it?
One last question...If they don't send validation and the judge believes that they sent it in the normal course of business as in the case described by BIGUN, I have nothing. There is no payment shown in my credit report. How would I defend SOL? Would the judge grant me a continuance to properly defend myself?
TToby,
We were talking about something entirely different.
Have you got all 3 of your reports? If not, do so.
It's my understanding that they must halt legal proceeding until validation is furnished per this case. I'm sure Jetx can explain it better.
http://www.licatalaw.com/articles/article_collection.htm
We were talking about something entirely different.
Have you got all 3 of your reports? If not, do so.
It's my understanding that they must halt legal proceeding until validation is furnished per this case. I'm sure Jetx can explain it better.
http://www.licatalaw.com/articles/article_collection.htm
"Isn't this illegal for them to still be reporting it?"
*** That would largely depend on what the correct DOLA (Date of Last Activity) is. If it as you indicate (1995), then the allowed time for reporting (7 years) has expired.
"If they don't send validation and the judge believes that they sent it in the normal course of business as in the case described by BIGUN, I have nothing."
*** Your confusing the 'post notice 5 day validation' with the validation you requested. They are different. The '5 day' notice (which is what Bigun was referring to could be 'excused' with a relatively simple, "we do them as a course of business and therefore shouldn't have to prove each and every one") is different than your right to request a specific validation.
*** That would largely depend on what the correct DOLA (Date of Last Activity) is. If it as you indicate (1995), then the allowed time for reporting (7 years) has expired.
"If they don't send validation and the judge believes that they sent it in the normal course of business as in the case described by BIGUN, I have nothing."
*** Your confusing the 'post notice 5 day validation' with the validation you requested. They are different. The '5 day' notice (which is what Bigun was referring to could be 'excused' with a relatively simple, "we do them as a course of business and therefore shouldn't have to prove each and every one") is different than your right to request a specific validation.
IL - SOL - CC as Open Account?
Hello,
I'm in the midst of fighting a credit card collection and trying to use the same SOL defense ttoby used. The credit card was opened in 2001. The collections attorney has provided NO record of purchases except a statement that simply lists a balance due.
My first line of defense is that they are barred from bringing the case due to SOL. I've read through all the IL Credit card debt posts here on FreeAdvice and have seen it mentioned numerous times that credit cards are considered open accounts in IL and therefore have a 5 or 6 year SOL. Does anyone have case law or specific statute you can point me to in order to prove this? Most collections attorneys I've spoken with say the SOL is 10 years because credit cards are considered written contracts, and subject to 735 ILCS 5/13‑206 instead of 735 ILCS 5/13‑205. This is according to 316 N.E.2d 209 (1972) and 432 N.E.2d 1309 (1982). No where do I see mention of the Federal Statutes - Truth in Lending Act.
If anyone can point me to a case that proves credit cards are not written contracts and are considered open accounts, I'd GREATLY appreciate it.
My second line of defense (and I'd love to hear you thoughts on it) assumes credit cards are written contracts, but that the attorney must PROVE a written contract existed. The case they have cited says that the contract is NOT formed when the credit card agreement is entered into, but instead when a purchase is made and the credit card holder signs the purchase receipt - THAT is the contract. If that is in fact the case, doesn't the collections attorney have to prove that said contract existed by providing a copy of the purchase receipts, or at the very least a statement with the specific purchases made? MUST I demand verification of debt, or can I just argue this in court? We already have the court date set...is it too late to ask for the verification?
Again, I'd appreciate your thoughts!
Hello,
I'm in the midst of fighting a credit card collection and trying to use the same SOL defense ttoby used. The credit card was opened in 2001. The collections attorney has provided NO record of purchases except a statement that simply lists a balance due.
My first line of defense is that they are barred from bringing the case due to SOL. I've read through all the IL Credit card debt posts here on FreeAdvice and have seen it mentioned numerous times that credit cards are considered open accounts in IL and therefore have a 5 or 6 year SOL. Does anyone have case law or specific statute you can point me to in order to prove this? Most collections attorneys I've spoken with say the SOL is 10 years because credit cards are considered written contracts, and subject to 735 ILCS 5/13‑206 instead of 735 ILCS 5/13‑205. This is according to 316 N.E.2d 209 (1972) and 432 N.E.2d 1309 (1982). No where do I see mention of the Federal Statutes - Truth in Lending Act.
If anyone can point me to a case that proves credit cards are not written contracts and are considered open accounts, I'd GREATLY appreciate it.
My second line of defense (and I'd love to hear you thoughts on it) assumes credit cards are written contracts, but that the attorney must PROVE a written contract existed. The case they have cited says that the contract is NOT formed when the credit card agreement is entered into, but instead when a purchase is made and the credit card holder signs the purchase receipt - THAT is the contract. If that is in fact the case, doesn't the collections attorney have to prove that said contract existed by providing a copy of the purchase receipts, or at the very least a statement with the specific purchases made? MUST I demand verification of debt, or can I just argue this in court? We already have the court date set...is it too late to ask for the verification?
Again, I'd appreciate your thoughts!
