statute of limitations AGAIN!

[rmcnellis]

What is the name of your state? montana
back again! NCO Financial is still harassing me and my husband about a collection they have on him. The last date of activity with the original creditor (DISCOVER) was 02/97 and it was reported to a CA 06/98. We had never heard from thses people until very recently. When my husband got the initial statment a month agao he called NCO to see what this was all about. The CA badgered him into making a "good faith" payment of $100.00 (check by phone) and also tried to make his set up 3 additional payments of $600.00 each, which he did not do thank GOD!Now on his credit report it says this debt was a revolving account which has been charged off account with a balance of $0. The NCO collection does not show up on the report as a collection and there has been no judgement filed. I was advised both on this site and by an actual lawyer that the statute of limitations for collection on this debt was 5 years and that it has definately run out. I contacted the CA and left a message telling her of this and I also sent a certified letter with RRR. Didn't hear from them for a month and now they are back at it. They do not contact me by phone, but sent me a statement that says:

"***TOP PRIORITY***
We have previously written you regarding the debt referred to above, however, you have chosen not to respond. Your lack of attention to this matter has caused us to assume this is valid and owed to your creditor. If any reason exists for not paying this balance IN FULL, it is your responsibility to contact this office immediately, otherwise we strongly suggest you PAY THIS BALANCE IMMEDIATELY!!"

So I got pretty MAD and called this CA. She said there is no statute of limitations on how long a debt is collectable and the entire balance is still owed. I told her what the lawyer said and also asked her if she received the letter. She brushed off my question and told me I was wrong and they would continue to pursue until this debt was paid. She also said I could have my lawyer send 100 letters and they would still pursue this debt. What's the deal?!? What do I do now? Have a lawyer pursue this as harassment or is my legal council wrong? I need a second opinion. Thanks!

 

[Ladynred]

No, your legal counsel was 100% right, the SOL IS 5 years.

The sticky point here is the SOL is the time limit for SUING you to enforce collection of the debt, not the time for them to TRY to collect. Theoretically, they can try to collect forever, but once the SOL has run out, they have NO LEGAL leverage to collect it. They can't sue you, so tell 'em to pound sand, permanently !

Did you send the letter I gave you the link to before ? Usually CA's fade away after that letter, but NCO is lower than a snake's belly. Make a log of EVERY call, date and time, and if you can record them, do so.

Your lawyer should send another one, with a VERY strong Cease and Desist noting the debt is time-barred, and I'd also make it an 'intent to sue' letter as well. Ignoring the C&D is a violation of the FDCPA in itself, and they're tromping all over it. They can owe YOU up to $1000 plus damages and atty's fees if you sue them and win for this crapola. Keep that letter, its great evidence in case you DO sue them.. and I wouldn't hesitate to do so. I've read many posts where people have filed suit against NCO and when actually faced with being sued, especially when a person has legal representation, NCO backs down and in some instances has settled with the person suing to avoid court.

Since they know you have an attorney, they could also be in violation of the following, so they could rack up yet another:

"§ 805. Communication in connection with debt collection [15 USC 1692c]

(a) COMMUNICATION WITH THE CONSUMER GENERALLY. Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt --

(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer;"

Don't call these scumbags, don't talk to them at all. Let them keep ignoring C&D letters and violating the FDCPA and you'll have a honey of a case. I'd also go visit www.edcombs.com, NCO is on their hit list of CA's they're collecting info on for a class action suit and they'd LOVE to hear this kind of story !!

 

[djohnson]

I'm curious about the 100.00 payment though. You could have changed the SOL date. When you said that did you mean he made the 100.00 payment and not the rest or none of it. You said 'They badgered him into making a 100.00 payment' Did he make it?

 

[rmcnellis]

debt validation

my husband did make the $100.00 payment before we found out about the sol. i think if the ca tries to push the issue with me about restarting the sol by making that payment i'll take the position that they had been harassing us prior to our calling them and also after we contacted them (they would call approx 10 - 15 times within a few hours and leave all kinds of nasty messages on our answering machine - which i saved). from what my legal counsel tells me i have not restarted the sol by my husband making a payment in good faith. i have recently been reading about debt validation - something i knew nothing about prior to yesterday - do i only have 30 days from the initial notice of collection to ask for validation or can i make this ca's life hell by asking for satisfactory validation that they own this debt? if they can't prove they own the debt or that my husband has a contract with them to pay the debt then i could end this right now. what do you guys think? i went to www.creditinfocenter.com and got some really great tactics and info on this. thanks for all your help - again

 

[JETX]

Sorry, but I disagree with the responses you have gotten on this thread so far.....

From Montana statutes:
" 27-2-409. Acknowledgment of debt or part payment. (1) An acknowledgment or the part payment of a debt is sufficient evidence to cause the relevant statute of limitations to begin running anew.
(2) An acknowledgment must be contained in some writing signed by the party to be charged thereby.
(3) Part payment is any payment of principal or interest."
Source: http://data.opi.state.mt.us/bills/mca/27/2/27-2-409.htm

And before anyone says it, I know that the statute refers to ACKNOWLEDGMENT being in writing, but there is nothing stating that the part payment must be in writing (note the OR in the statute). Therefore, I believe that the debt has been reset by the partial payment.

Further, there is no support for the apparent argument that the partial payment was made due to coercion or undue pressure by the creditor. Simply, the debt and enforcement is valid due to the payment resetting the clock for ANOTHER five years.

 

[djohnson]

I agree, that's why I wondered if he made that payment. Sol started all over at that point and is not a valid claim at this point.

 

[rmcnellis]

so you're saying that by making a payment - without knowing about the sol having expired - he restarted the sol. this is the only contact we have had with NCO on this collection other than the cease and desist letter i sent them and a voice mail i left the ca. there has never been anything in writing other than the letter i sent. the only reason we paid the $100.00 is because the ca said she would settle with us rather than having to pay $2700 or her getting a judgement. if we have restarted the sol, what can we do? no one answered my question about verification of the debt either - what's your take on that? also, this is not showing up on a current copy of my husband's credit report - what's with that?

 

[JETX]

"so you're saying that by making a payment - without knowing about the sol having expired - he restarted the sol."
*** Yep. Clearly.

"this is the only contact we have had with NCO on this collection other than the cease and desist letter i sent them and a voice mail i left the ca. there has never been anything in writing other than the letter i sent. the only reason we paid the $100.00 is because the ca said she would settle with us rather than having to pay $2700 or her getting a judgement."
*** None of that is relevant to the issue.

"if we have restarted the sol, what can we do?"
*** What would you do with any newly refreshed debt??

"no one answered my question about verification of the debt either - what's your take on that?"
*** You have the right, per the FDCPA, to ask for the 3rd party collector to validate the debt. However, you should follow the sample letter at http://www.creditinfocenter.com/. It is a good letter spelling out exactly what you expect them to furnish.

"also, this is not showing up on a current copy of my husband's credit report - what's with that?"
*** Not relevant. All credit activity does not show up on credit reports. Only those that are reported by the creditor will show up..... and simply, at this point, it appears that this creditor hasn't reported it...... yet.

 

[Ladynred]

It also says in that MT statute that if the payment was made under duress, the whole deal is off ! I read and posted that before. If being harrassed with numerous phone calls and threatened with a judgment they could not legally obtain at that point isn't duress, I don't know what is !!

Being me.. I'd fight them as much as possible and if the lawyer can defend using the SOL and use the duress angle to invalidate what he did, then I'd sure as hell do it. The interpretation of the statute by another lawyer says the agreement to pay MUST be in writing to restart the SOL. I know.. JetX disagrees with this and well.. we've disagreed before. Personally, I'd bring the statute JetX quoted to your lawyer's attention, ask him about it, and also ask about the part in the statute that mentions duress (I posted it before). If your lawyer thinks he can beat these scumbags, then by all means, let him go for it !!

 

[JETX]

With all due respect, Ladynred:
1) Please provide a link to the statute that you feel allows an exemption from renewing SOL due to duress. I simply don't see it (and in my opinion, would be very unusual).
2) A threat of possible lawsuit (allowed or not) or continuing phone calls (proper or not) simply does not meet the level required for a finding that the payment was made 'under duress'.

Of course the writer can make any claim that they want in defending themselves in this matter (if needed). However, that one simply will not work.

Also, I suggest that sometimes we have to get off the 'horse', slow down, and read and understand all the issues being raised in these matters. Focusing on one issue and basing all arguments on it is simply the wrong way to pursue them..... especially in the face of statutory proof that the arguments chosen aren't correct.

 

[rmcnellis]

what is your definition of duress JETX? is it calling my home as much as 10 times an hour? is it threatening to garnish wages, threatening to have interest rates on other credit raised through the roof? is it threatening to obtain a judgement against us, to make us pay more interest, sending daily collection letters, threatening to take money from our checking and savings accounts, threatening to impair my credit (when i'm not even involved in this collection)? when a person calls my home 10 times in one hour, leaves threatening beligerant messages on my answering maching, lies to me and tells me they're going to do things to my bank accounts, paycheck and credit - when they can't! unless i pay them $2700.00 i don't even know for sure that i owe them - this to me, is harassment, badgering, duress. but that's just me. i'm no attorney, i don't know how to interpret laws. i am going to take all the advise i've gotten here and use it. i appreciate everyone's help and i'll let you know how it all turns out. we'll see what my attorney thinks. thanks again - especially Ladynred.

 

[JETX]

"what is your definition of duress JETX?"
*** My 'definition' really isn't relevant and would require a full review of the circumstances, but some examples would be:
- Party holding a gun to your head and forcing you to sign a document.
- Party holding a family member hostage to force you to do something you would not normally do.
- Someone threatening you with imminiment bodily injury if you don't comply.

Here is a legal definition:
"Anglo-French duresce, literally, hardness, harshness, from Old French, from Latin duritia, from durus hard
: wrongful and usu. unlawful compulsion (as threats of physical violence) that induces a person to act against his or her will: "coercion"

Making excessive phone calls might be harassment, but it isn't duress.
A threat to bring a lawsuit is also not duress.

"is it calling my home as much as 10 times an hour?"
*** No. You could simply hang up the phone, screen calls with a machine, or even take the phone off the hook for a period of time.

"is it threatening to garnish wages, threatening to have interest rates on other credit raised through the roof?"
*** No. A threat to garnish wages is unsupportable without a judgment in place. And one creditor on their own has no direct ability to get others to raise interest rates.

"is it threatening to obtain a judgement against us, to make us pay more interest, sending daily collection letters, threatening to take money from our checking and savings accounts, threatening to impair my credit (when i'm not even involved in this collection)? when a person calls my home 10 times in one hour, leaves threatening beligerant messages on my answering maching, lies to me and tells me they're going to do things to my bank accounts, paycheck and credit - when they can't! unless i pay them $2700.00 i don't even know for sure that i owe them - this to me, is harassment, badgering, duress."
*** Lets see.... no, no, no, no, no, no, no, and no.

"but that's just me. i'm no attorney, i don't know how to interpret laws. i am going to take all the advise i've gotten here and use it. i appreciate everyone's help and i'll let you know how it all turns out. we'll see what my attorney thinks. thanks again - especially Ladynred."
*** Please let us know.... Your best bet in this is to talk with a local attorney... though I am sure that he will say pretty much the same thing.