not sure what's going on?
Date: Wed, 12/07/2011 - 20:14
By the way, how long do case summaries stay available?
Send them a cease and desist letter, telling them to FOAD, that
Send them a cease and desist letter, telling them to FOAD, that the debt is time barred. In other words, tell them to pound sand and bug off.
Even if they attempt to sue you, your defense would be that the debt is time barred.
A "request for entry of default/court judgement "? Huh? Jud
A "request for entry of default/court judgement "?
Huh?
Judgements are "requested" by filing an action in court, not by making a "request." Who was this "request" sent to?
It is a violation of FDCPA 807(5) to threat to take any action that cannot legally be taken. Their is a burdgeoning area of federal case law that holds that taking, or threatening to take, legal action on a debt that is knowingly time-barred (i.e., its SOL has expired) is a violation of the FDCPA.
[COLOR=black][FONT=Verdana]This case happened in the US District Court for Wisconsin, Western District, in Clure v Calvary, Case No 016-541-5:[/FONT][/COLOR][FONT=Verdana]
[SIZE=3]Clure opened a credit card account with Elan in 1991. She defaulted in March 1993. Elan charged off the account, closed it then sold it to Aman Collections. Aman did nothing. The statute of limitations expired in March 1999 . In June 2000, Calvary bought the account from Aman and sent her a dunning letter in February 2001, wanting half of $12,466 (yeah interest). Clure sued alleging violations of the FDCPA, specifically that the Wisconsin statute of limitation acts to effectively extinguish and CANCEL the debt instead of just eliminating a legal remedy to collect the debt. [/SIZE]
[SIZE=3]Wisconsin statute of limitations does actually extinguish the debt and renders it null and void. The actual statute is under 893.05. The court ruled that Calvary attempted to collect a debt that it had no right too, and therefore violated 1692e(2)(A) as it misrepresented the status of the debt.[/SIZE]
[SIZE=3]So, when the SOL expires can a CA still sue? The answer is no in Wisconsin. Do other states have similar laws? I'm sure some do. I'm also wondering about case law regarding the SOL in cases where the state statute does not clearly extinguish the debt, but someone has successfully argued it in court and won. [/SIZE][/FONT]
[COLOR=black][FONT=Verdana]The issue is one whether the filing time-barred debts is a violation of the FDCPA since debt collectors cannot threaten to take or take any action that cannot legally be taken or is not intended to be taken - 15 U.S.C. Section 1692e(5). There are a couple of FTC opinion letters that allude to this and cite Kimber. [/FONT][/COLOR]
[COLOR=black][FONT=Verdana]Take a look at:[/FONT][/COLOR][FONT=Verdana]
[SIZE=3]1) Kimber v. Federal Financial Corp,. 668 F. Supp. 1480; 1987 (U.S. Dist MD Ala).[/SIZE][/FONT]
[COLOR=black][FONT=Verdana](this is the primary case) [/FONT][/COLOR][FONT=Verdana]
[SIZE=3]2) Lindbergh v. Transworld Systems, Inc., 846 F.Supp. 175 (D. Conn. 1994); [/SIZE]
[SIZE=3]3) Martinez v. Albuquerque Collection Services, Inc., 867 F.Supp. [/SIZE]
[SIZE=3]1495 (D.N.M. 1994). [/SIZE]
[/FONT]
Before sending a cease communication letter, I would send whatever evidence of SOL expiration you have to them, and put them on notice of its expiration.