Author Topic: A question on a paper a debt collector sent me.  (Read 3914 times)

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Bubbles

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Re: A question on a paper a debt collector sent me.
« Reply #30 on: May 17, 2017 09:20:02 PM »
So?

The court said that until default plaintiff had no standing to sue. But that doesn't mean the accrual couldn't start on date of last item on account.

Actually, most of the credit card contracts specify that bank can demand payment in full at any time without cause. That essentially means they are reserving the right to sue at any time without cause as such. Of course, a court might not uphold suing until a missed scheduled payment, but failing to pay up on demand would contractually be cause.
« Last Edit: May 17, 2017 09:25:38 PM by Bubbles »

BellEbutton

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Re: A question on a paper a debt collector sent me.
« Reply #31 on: May 17, 2017 09:35:50 PM »
So?

The court said that until default plaintiff had no standing to sue. But that doesn't mean the accrual couldn't start on date of last item on account.

Actually, most of the credit card contracts specify that bank can demand payment in full at any time without cause. That essentially means they are reserving the right to sue at any time without cause as such. Of course, a court might not uphold suing until a missed scheduled payment, but failing to pay up on demand would contractually be cause.

Oh my gosh!  The breach of contract did not occur until payment was not made.   Under a breach of contract cause of action, the SOL could not start until there was a breach.

Bubbles

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Re: A question on a paper a debt collector sent me.
« Reply #32 on: May 17, 2017 09:47:04 PM »
Don't be such a pin-head.

Drooling Bruno was enough for one day. //

Speculation:

The JDB activity this month may evidence their drooling pin-headed mistake of just missing the SOL!



Oh my gosh!  The breach of contract did not occur until payment was not made.   Under a breach of contract cause of action, the SOL could not start until there was a breach.

BellEbutton

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Re: A question on a paper a debt collector sent me.
« Reply #33 on: May 17, 2017 10:00:39 PM »
Don't be such a pin-head.

Drooling Bruno was enough for one day. //

Speculation:

The JDB activity this month may evidence their drooling pin-headed mistake of just missing the SOL!

Again, you don't get that the 2 causes of action (account stated and breach of contract) can accrue at different times depending upon the circumstances. 

Bubbles

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Re: A question on a paper a debt collector sent me.
« Reply #34 on: May 17, 2017 11:12:04 PM »
Good chance you're past SOL. And CA law may be protective of SS money. But bear in mind:

Social Security is not considered a pension under (ERISA) and therefore is not federally protected.


Even if it restarts back to zero, won't matter. I have nothing to give them and there's nothing they can take. My income is exempt. At some point I may just file for bankruptcy and put an end to all of this. I already have one judgment against me. Another one won't matter.

BellEbutton

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Re: A question on a paper a debt collector sent me.
« Reply #35 on: May 17, 2017 11:43:10 PM »
Good chance you're past SOL. And CA law may be protective of SS money. But bear in mind:

Social Security is not considered a pension under (ERISA) and therefore is not federally protected.

Federal law protects social security from garnishment.

CleaningUp

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Re: A question on a paper a debt collector sent me.
« Reply #36 on: May 17, 2017 11:50:28 PM »

I don't know that the 90-grace period makes a difference where the SOL is concerned...


The grace period would appear to be for reporting purposes, not default defining.

Bubbles

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Re: A question on a paper a debt collector sent me.
« Reply #37 on: May 18, 2017 12:25:49 AM »
Federal Statute?

Federal law protects social security from garnishment.

BellEbutton

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Re: A question on a paper a debt collector sent me.
« Reply #38 on: May 18, 2017 12:33:02 AM »
Federal Statute?

42 U.S.C. 407

(a) In general

The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

Bubbles

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Re: A question on a paper a debt collector sent me.
« Reply #39 on: May 18, 2017 01:16:16 AM »
But there are exceptions, such as:

Fed and State taxes, child support, and  possibly an account with in excess of 2 months SS payments..

The point is not to get too cocky. //

Beyond that, why put yourself in a position where it is advantageous to be poor?

You want to be "poor" as far as creditors are concerned, but not actually poor.

Bruno the JDB Killer

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Re: A question on a paper a debt collector sent me.
« Reply #40 on: May 18, 2017 12:53:41 PM »
In most states accrual for an open account would be from last item, period. That's certainly true here in Oregon.



That makes absolutely no sense. The "last item" could be a purchase. So, if Bubbles buys some new padding for her cell, are you saying they can sue you? There has to be an issue of non-payment before any lender will sue you.

I have always argued that courts have no legal authority to change a contract made in good faith between consenting parties unless it violates the law. You can agree on what triggers the SOL, usually defaulting on a payment schedule does the job. You can also agree to a longer SOL if you want, but not shorter.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: A question on a paper a debt collector sent me.
« Reply #41 on: May 18, 2017 05:22:41 PM »
In most states accrual for an open account would be from last item, period. That's certainly true here in Oregon.



That makes absolutely no sense. The "last item" could be a purchase. So, if Bubbles buys some new padding for her cell, are you saying they can sue you? There has to be an issue of non-payment before any lender will sue you.

I have always argued that courts have no legal authority to change a contract made in good faith between consenting parties unless it violates the law. You can agree on what triggers the SOL, usually defaulting on a payment schedule does the job. You can also agree to a longer SOL if you want, but not shorter.

Yes, the last item can be a purchase which could actually help the consumer. 

For instance, on a breach of contract claim, the SOL would begin to run when a payment is due but never made.  However, on an account stated claim and depending upon one's laws, the SOL could begin to run on the date of the last purchase which could be before the payment was due.

Bruno the JDB Killer

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Re: A question on a paper a debt collector sent me.
« Reply #42 on: May 18, 2017 06:54:49 PM »
At best that would be thirty days. Again, I would argue that the SOL begins to run at default. Buying something is not a default. Not paying is. The court should not change the language of a legally executed contract.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: A question on a paper a debt collector sent me.
« Reply #43 on: May 18, 2017 07:01:22 PM »
At best that would be thirty days. Again, I would argue that the SOL begins to run at default. Buying something is not a default. Not paying is. The court should not change the language of a legally executed contract.

AGAIN, state legislatures get to determine when the SOL begins to run.  That determination does not change the contract or the definition of "default".

Bruno the JDB Killer

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Re: A question on a paper a debt collector sent me.
« Reply #44 on: May 18, 2017 07:08:01 PM »
It changes it because the contract sets forth when default occurs. The SOL begins to run when default occurs. When else could it possibly start, when you were not in default? You can agree to terms that are contrary to statutory requirements setting an SOL in stone. Otherwise, Cap One's "yours or ours, whichever is longer," would go right out the window.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.