Validation period has passed?

[TToby]

What is the name of your state? Illinois

I was served a summons in July for a court date of 8/11. This is a very old debt where I suspect an expired SOL as my defense. Anyway, I requested validation of debt 7/19. At court on 8/11 the case was postponed until 9/15 because they hadn't validated. On 8/20 I received a letter from the CA's attorney which included 2 statements from 2/1997 and 7/1997 (acct was opened in 1993).

I just recv'd another letter from the CA's attorney that says "I do wish to advise that the validation period has passed since we have long sent you our initial demand for payment."

They go on to name the original credit grantor and the name of co-signer on the acct, then they include the same 2 statements they sent me on 8/20 and list the address they were sent to.

Then they add, "Further, there is nothing in our account history to indicate that there was any dispute. As you are aware, under Federal law, you have a right to dispute an open balance on an account. In order to waive any charges, etc., the dispute must be in writing. If you have any prior correspondence regarding the said dispute, please forward the same to our office."

Are they right? Do they not have to validate anymore?

 

[Ladynred]

NO, they're full of CRAP !!

Per the FDCPA, Section 809 (c):

"§ 809. Validation of debts [15 USC 1692g]
(c) The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer. "

Basically, you NEVER lose your right to dispute and demand validation. TWO lousy statements most likely DO NOT prove either the date of last activity nor provide a complete accounting of the alleged balance.

Have you looked at your credit reports for this debt ?
Is the DOLA 1997 ? Is that why they keep sending you those lame statments from 1997 ? The FDCPA says you have the right to dipsute any part of the debt. That means you can dispute extra interest, collection charges and attorney's fees .. ANY part of the debt. Without a COMPLETE accounting of what they allege you owe, they have not adequately validated. This was brought out in Spears v. Brennan.

If it WAS 1997, then the SOL HAS expired - 5 years would be an expiration of 7/2002 !

Disputing the account for a billing error is an entirely different matter from VALIDATION, although this attorney seems to think they're one and the same. They are not.

If that's ALL they have is 2 statements from 1997, then they've proven your SOL case for you, it ran out LAST year !

 

[TToby]

Thanks Ladynred - you're wonderful as always.

A few questions:

Where can I find the Spears v. Brennan case?

Also, I have found IL's SOL for open accounts to be 5 years on most websites but 6 years on 1 also. How do I find out which is reight. Either way, I'm outside 6 years too but if it is only 5, that would be more helpful.

 

[Ladynred]

Its 5 years per the statutes:

"ILLINOIS SOL & CODE FOR CREDIT CARD EXCLUSION AS WRITTEN CONTRACT


(735 ILCS 5/13-205)

Sec. 13-205. Five year limitation.
Except as provided in Section
2-725 of the "Uniform Commercial Code", approved July 31, 1961, as amended, and Section 11-13 of "The Illinois Public Aid Code", approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued. (Source: P.A. 82-280.)"

Here's an excellent site from IL Legal Aid:

http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=11

 

[TToby]

Thanks again Ladynred.

One last question:

When I show up in court on Monday, should I request the case be dismissed because of the Plaintiff's refusal to verify the debt and add that the reason they aren't verifying is because that SOL has expired and the court can't enforce a judgement?

In your opinion, should I also file a couterclaim against them for not reporting the debt as in dispute, or just concentrate on having the whole thing dismissed?

 

[Ladynred]

You need to assert the affirmative defense of the SOL, that is your BEST defense. You must simply state that per section xx.xx of the IL code, the statute of limitations has expired. I wouldn't even mention validation at this point.

Be prepared for the lawyer for the plaintiff to try and pull the 'credit cards are written contracts' BS on you. If/when that happens, and MOST judges do NOT know the difference, you need to whip out a copy of the Truth in Lending Act that clearly defines credit cards as open-ended accounts. So, print it out, make copies and have copies ready to hand out to the judge and the lawyer.

I'd go for a counter-suit on FDCPA and FCRA violations later. Ask that the case be dismissed WITH prejudice (so they can't try to sue you again for the same thing).

Spears v. Brennan you can read here:
http://www.state.in.us/judiciary/opinions/archive/03260101.ewn.html

Then there's an FTC opinion letter:
CUSHMAN LETTER:

"Cushman v TUC 115 F. 3d 220:
The "grave responsibilit[y]" imposed by § 1681i(a) must consist of something more than merely parroting information received from other sources. Therefore, a "reinvestigation" that merely shifts the burden back to the consumer and the credit grantor cannot fulfill the obligations contemplated by the statute. "

 

[TToby]

I'll do what you suggested and I'll let you know how it all pans out Monday.

I've had the TILA in with my court documents already as I thought they'd pull that too.

I really hope this will be the end of it. If all else fails, I can always hope to go into labor and be granted a continuance

Thanks again.