Author Topic: A question on a paper a debt collector sent me.  (Read 3338 times)

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BellEbutton

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Re: A question on a paper a debt collector sent me.
« Reply #45 on: May 18, 2017 07:11:01 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.

Where does the contract say when the SOL begins?  It doesn't. 

Where does state law define default? 

Bruno the JDB Killer

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Re: A question on a paper a debt collector sent me.
« Reply #46 on: May 18, 2017 07:18:18 PM »
The contract doesn't specify when the SOL begins. It doesn't have to. All it has to do is state what triggers default. Logic says SOL begins at default, otherwise there is no basis for a suit. You cannot sue somebody when they are current, can you?
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Bubbles

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Re: A question on a paper a debt collector sent me.
« Reply #47 on: May 18, 2017 07:23:29 PM »
Most CC have a universal default feature.

And they can demand full payment at any time for any reason.

That effectively allows them to file suit at any time.


BellEbutton

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Re: A question on a paper a debt collector sent me.
« Reply #48 on: May 18, 2017 07:35:48 PM »
The contract doesn't specify when the SOL begins. It doesn't have to. All it has to do is state what triggers default. Logic says SOL begins at default, otherwise there is no basis for a suit. You cannot sue somebody when they are current, can you?

Credit card companies can also allow one to bring an account back to a current status after a default.  Based upon what you've said, the bank should not be allowed to do so and should sue even if the account is again made current.

Many states allow for a partial payment to reset (extend) the SOL.   In some states, the SOL on time-barred accounts can be restarted when one makes a payment or agrees to do so in writing. 

If default were the only instance in which the SOL could start running, a partial payment could not extend or restart it under any circumstances.  So again, states determine which circumstances start the running of the SOL.

Bruno the JDB Killer

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Re: A question on a paper a debt collector sent me.
« Reply #49 on: May 18, 2017 07:53:13 PM »
Credit card companies can also allow one to bring an account back to a current status after a default.

Yes they can, but we do not deal with people who got current and were never sued. The bank CAN be allowed to do so. There is no law that says they cannot. Again, a contract is defined by the terms the parties  agreed to. As long as it does not violate the law, it is legal and enforceable. A partial payment does not cure a default.

Imagine I owe you 3K on a credit card and send you one dollar a month. You can still sue me.
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 #50 on: May 18, 2017 08:22:40 PM »
Credit card companies can also allow one to bring an account back to a current status after a default.

Yes they can, but we do not deal with people who got current and were never sued. The bank CAN be allowed to do so. There is no law that says they cannot. Again, a contract is defined by the terms the parties  agreed to. As long as it does not violate the law, it is legal and enforceable. A partial payment does not cure a default.

Imagine I owe you 3K on a credit card and send you one dollar a month. You can still sue me.

A partial payment doesn't cure a default, but it can reset the SOL.  According to your argument, it should not do so.

Like I've told you before, contact all the state legislatures and tell them they're wrong because you know better.  I'm sure they schedule emergency hearings and change the laws to your satisfaction.

Bruno the JDB Killer

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Re: A question on a paper a debt collector sent me.
« Reply #51 on: May 18, 2017 09:28:59 PM »
Show me a contract that says a partial payment brings the account current, cancels default, and stops the SOL. I don't CARE what the state statutes say, because the state has no authority to rewrite a contract. If they did, every bank agreement would say so. They do not.
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 #52 on: May 18, 2017 09:52:41 PM »
Show me a contract that says a partial payment brings the account current, cancels default, and stops the SOL. I don't CARE what the state statutes say, because the state has no authority to rewrite a contract. If they did, every bank agreement would say so. They do not.

Actually, states can "rewrite" contracts if they conflict with state law. 

How many times have you argued that the SOL is procedural, not substantive?  That's the very reason states can apply their own SOLs to contracts no matter what state's laws govern contracts.  You're arguing procedure vs. substance.

Bruno the JDB Killer

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Re: A question on a paper a debt collector sent me.
« Reply #53 on: May 19, 2017 12:45:38 PM »
That is true, SOL is procedural in most cases, absent a borrowing statute. Every other detail is substantive........the court cannot rewrite those details unless they violate the laws of the state the parties agreed to.
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 #54 on: May 20, 2017 09:43:22 PM »
That is true, SOL is procedural in most cases, absent a borrowing statute. Every other detail is substantive........the court cannot rewrite those details unless they violate the laws of the state the parties agreed to.

Then if the SOL is procedural, the court is not rewriting the substantive details of the agreement.

Bruno the JDB Killer

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Re: A question on a paper a debt collector sent me.
« Reply #55 on: May 21, 2017 12:04:59 PM »
We were talking about partial payments extending the SOL. If the contract says they don't, the court cannot change that substantive detail to bootstrap in the SOL.
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 #56 on: May 21, 2017 12:20:28 PM »
We were talking about partial payments extending the SOL. If the contract says they don't, the court cannot change that substantive detail to bootstrap in the SOL.

Show me a credit card contract that states a partial payment does not extend the SOL.

CleaningUp

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Re: A question on a paper a debt collector sent me.
« Reply #57 on: May 21, 2017 04:51:16 PM »
Show me one that does, BellE, and I'll show you a contract that abrogates unfairly the laws of the states.

Contracts cannot exend than which is a matter of the legislatures and the law to define.

They can try, but they will fail.

Flyingifr

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Re: A question on a paper a debt collector sent me.
« Reply #58 on: May 21, 2017 05:33:36 PM »
We were talking about partial payments extending the SOL. If the contract says they don't, the court cannot change that substantive detail to bootstrap in the SOL.

Bruno - no contract can have an enforceable provision that supersedes the law. If they could supersede the law then EVERY Contract of Adhesion (read that EVERY Consumer Credit Contract) would have a stipulation in the fine print where the borrower/consumer waives all statutory protections and defenses, including SOL, as well as a default provision that appoints the creditor as the consumer's attorney-in-fact with power to accept service of a summons and to enter a Consent Judgment against the consumer. Believe me, these provisions aren't there because of the lender's generosity - they are not there because the laws prohibit them.

I was in the collections industry in the "good old days" when they were. Just a check box in the fine print of the contract gave the small loan company a lien on everything the borrower owned - for a $400 loan at 30%. Check another box and the "Financial Statement" the the loan officer knew was phony because it was written in the loan officer's handwriting was sworn to as genuine, true and accurate. I remember this, I did it. I was taught to do it. I remember when the Federal Trade Commission banned the "Holder in Due Course" doctrine and made the Finance Companies subject to the same defenses the seller was subject to when the seller arranged the financing.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

BellEbutton

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Re: A question on a paper a debt collector sent me.
« Reply #59 on: May 21, 2017 05:52:50 PM »
Show me one that does, BellE, and I'll show you a contract that abrogates unfairly the laws of the states.

Contracts cannot exend than which is a matter of the legislatures and the law to define.

They can try, but they will fail.

That's been my point the entire time.  State legislatures decide when the SOL begins and how or if it can be extended or restarted. 

 

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