Statute of Limitations, grey area?

Your state statutes control not only the length of time for a cause of action to be filed,but also what is defined as a breech.It should also define if there is a chance of reseting sol by payment or acknowledgment.

hi--

The SOL begins when the account first becomes past due, if I recall correctly.

Also, you mentioned that "a group of lawyers was going to sue you the very next day". This is highly unlikely, as filing a lawsuit takes more time than "the very next day". Sounds to me like a scare tactic, but you need to make sure. It is not uncommon to have a CA sue you and get a judgment by default because you didnt even hear about it. It has happened to others and it could have happened to you. I would definitely check with the courts where you used to live to make sure that no judgment was entered against you back then. Just to be on the safe side.

Something else--they call you, but you are always away from your cell phone. Do you have a home phone? It is illegal according to the Fair Debt Collection Practices Act for a collection agency to cause you expense by calling like that. A cell phone costs you money for the minutes they use by calling you. I would notify them that they are to stop calling that phone immediately, and if they continue to do so, sue them for violating the fdcpa.

Thanks for the replies, guys.

Does anyone know where I find what would be defined as the time a claim accrues for this case? I found these two sites. The first one is the actual statute, the second says that the statute of limitations clock starts at the time a claim accrues.

http://www.legislature.mi.gov/(S(oewnje45cdszchbvdm4hs2mv))/mileg.aspx?page=getobject&objectname=mcl-600-5807

http://www.expertlaw.com/library/limitations_by_state/Michigan.html

Unfortunately I don't think either one is really specific about what would happen in my situation. I think I'll call an atty tomorrow in Michigan, although it seems like a conflict of interest to ask him if I will need his services if sued.

Also, I don't have a home phone, but just recently they left a message on my work phone, additionally it was at 6:45am (they called my cell, then it seems immediately tried my work phone). They are on the east coast and I'm on the west with phone numbers that are geographically accurate.

Thanks for the replies, guys.

Does anyone know where I find what would be defined as the time a claim accrues for this case? I found these two sites. The first one is the actual statute, the second says that the statute of limitations clock starts at the time a claim accrues.

**it doesn't let me post links, do I have to be registered?**

Unfortunately I don't think either one is really specific about what would happen in my situation. I think I'll call an atty tomorrow in Michigan, although it seems like a conflict of interest to ask him if I will need his services if sued.

Also, I don't have a home phone, but just recently they left a message on my work phone, additionally it was at 6:45am (they called my cell, then it seems immediately tried my work phone). They are on the east coast and I'm on the west with phone numbers that are geographically accurate.

ok, generally speaking, credit card accounts are considered open ended accounts, because the agreement is not for a fixed, one-time set amount of money. As such, in your state(CA), the statute of limitations is four years on open-ended accounts. In Michigan, the SOL is six years. Here's the thing--they can only choose from these two states to sue you in, because you lived in MI at the time the account originated, but you live in CA now.

Now, this is all in your favor, because the maximum SOL in MI is 6 years. The maximum SOL in CA is 4 years. The debt youre talking about had the last payment made more than 6 years ago, meaning no matter what kind of debt they try to consider this, and no matter where they might sue you, the debt is still past the SOL and that is the only defense you need to get it dismissed. If you are concerned about the origin of SOL, then pull your credit reports, all three of them, and see if this debt is on there. If it is, there should be a date listed when it was charged off. If not, then send them the validation letter by certified mail, return receipt requested. That way, they must either provide you with the proper information or stop trying to collect on it. That would be a good option right now.

Additionally, you stated that this CA has called you at 6:45 in the morning. This is a direct violation of the fdcpa, a federal law. According to this law, they are only allowed to contact you between the hours of 8 am and 9 pm in the time zone they are calling. This means that they cannot legally call you before 8 am your time unless you gave them permission to do so. You need to go back to your cell phone company or look through your records and get those phone bills that show the calls and when they were made--this is evidence that can get you money!

Write a debt validation letter to CBCS explaining to them to verify that they actually bought the debt. Until the agencies validate the debt, they can not try to collect on it. A collection agency should verify the debt by responding to you with in 30 days. They should mention
The name of the original creditor to whom the debt is owed
The amount of the debt you owe
Proof that the Statute of Limitations has not expired on the account
A copy of the agreement between the collection agency and the creditor that proves that they actually owe the debt
The license numbers and Registered Agent

collection agencies have been known to falsify last date of payment to try to avoid the statute of limitations defense. They will even change it on your credit report some times. The best evidence is to get a copy of your checks showing last payment or if you keep check registers, etc. showing the last payment.

A cause of action accrues when a claim arises. You could argue this is the date of the first payment you did not make, because at that time, you were in breach of a contract. Breach of contract may also be defined in the contract itself. However it is always best to research the case law in the state whose law is controlling in the case.

Is there any downside in sending them a validation letter if they haven't provided me anything in writing yet? I guess they already have my current address since they pulled my credit.

I did check my credit report from all 3 bureau's and the charge-off from the credit card company is not there anymore. I was waiting out my time since it was due to come off next year. I guess the upside is that I have FICO scores in the mid 700's now, but I'm wondering if this is one of their tactics to remove the item, then harass you, and if you don't pay what they want they put it back on your credit report? That way you're not able to verify the date the of last activity. I'm going to try to get my credit report from when I applied for my apartment because I know this item was on there back then.

Thanks again for all the responses.

They should send you a written request for payment within 5 days of the initial contact. In this case I don't see a down side to sending a request for validation, especially when it is no longer on your credit report. Additionally, you should save a print out of your credit reports in case they try to do some wrongful reporting. Some collection agencies will use the threat of placing a negative item on your credit report in the efforts to collect a debt. If they do not intend to report it, or if they report incorrect information you have a claim under the fdcpa. (FCRA is more forgiving to the reporter of information.)

Texaslawyer,
Thanks for the heads up. Do you think they can put this item back on my credit report? I'm still within the 7 years since it got charged off. The original charge off was listed in my credit report as from the original CC company. Then they got bought out and was listed from that CC company. If they can place it back on my credit report it would still have to come off next year, right?

Fortunately my apartment complex has my credit report from a couple of years ago.

On there it has the date the account was opened, it also has the date closed as 01/01. The amount owed is what the CA quoted me. Present status is listed as "bad debt". Past due ammount is listed as a couple hundred less than the ammount owed. Remark is "closed by credit grantor" There are also a bunch of codes.

ok, that will support your case. It shows that the account was closed more than 6 years ago. So, since 6 years is the longest SOL you may have to deal with depending on where they would file suit, you are definitely outside the SOL.

However, what you need to do now is obtain a current copy of your credit report. It is not unheard of for a CA to illegally change that date so they can make it seem as if the SOL has not expired. Get a current copy of the same credit report, compare it to the old copy. IF the dates are different, then they changed it on you. If so, you will need to use the old copy as evidence, so ask the apartment people if they can give you a copy. Then, file a lawsuit, seriously. You will have enough to show their illegal practices.

Sorry, I just saw that you did check the current reports. But to answer your question, yes, they can relist it on your report. Doesnt mean they will be right for doing it, but the credit bureaus take far less care with this than they should.

I would send them a letter CMRR and tell them that they are not to contact you anymore--cease and desist. I would also mention that the debt is outside of SOL, and if they choose to take you to court, it will be dismissed on those grounds. This will leave them no alternative but to stop bugging you or lose in court....or, get sued.