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Lawsuit Fundamentals - the Laws / Re: Statute of Limitations?
« Last post by CleaningUp on Today at 01:54:55 AM »
You can always use Coltfan's approach of telling them that you refuse to pay the debt.

Read the FDCPA very carefully.  You'll see where that puts the collector in a real bind.
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Lawsuit Fundamentals - the Laws / Re: Statute of Limitations?
« Last post by Clydesmom66 on Yesterday at 11:54:54 PM »
I am wondering three things:

1) Am I correct that this debt is clearly time-barred?

Yes

2) If so, is it worth my time and effort to sue Global for a FDCRA violation?

Possibly

3)  What elements need to be present in order for me to to win?  Does merely contacting me about the debt constitute a "threat of suit," or do they need to be more explicit?

Simply sending a collection letter on a zombie debt does not violate the FDCPA.  If they are not reporting on the credit report to the bureaus then it is not a FCRA violation.  Look at the letter carefully.  Often debts this old contain a statement saying "the law limits how long we can sue you or report this debt and we will not do that".  If this statement is present then you have no violation.  Nothing prohibits them from sending a "please pay us" letter. 

If at no time they mentioned a lawsuit and you are just assuming they would go there based on the past then do not rush to court simply send a cease and desist and if they don't stop collection activity;  THEN you sue them.

Can I sue Global for trying to collect a debt that is clearly time-barred?

Not for simply trying to collect.  As I said above there is nothing in the FDCPA prohibiting them from sending a "pretty please pay this" letter.
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Lawsuit Fundamentals - the Laws / Statute of Limitations?
« Last post by bounceback on Yesterday at 09:32:54 PM »
First, I'd like to thank this community for helping me get a collection lawsuit from Velocity Investments dismissed (without prejudice) back in 2013. That was a tremendously satisfying moment that I remember very fondly.

 I thought the matter was settled, but now I've received mail from Global Credit & Collections, wanting to collect the same debt.  I sent them a letter requesting validation of debt, and just today received two documents from them:  a copy of a Chase credit card statement from 1999 showing a balance due of $13K, and an "Affadavit of Sale" from Chase, saying they sold the debt to Hilco Receivables in 2009.

I called the number on the letter from Global Credit and had a chat with a guy in a call center.  I asked him how old the alleged debt was, and he said 12 years. (I figured it was 9, but I was happy to let him use his own number.)  I asked him what the statute of limitations was in Oklahoma, and he said 5 years.  I asked him, "Then why are we even talking about this?"  He said he would pass the info on to Global.  I also gave him the case number of the case that was dismissed in 2013.

In the process of re-acquainting myself with the info on this site, I came across this: 

"... bringing a suit or threatening to bring a suit on a time-barred debt is a FDCPA violation all by itself. "

Can I sue Global for trying to collect a debt that is clearly time-barred?  I was just happy that the case got dismissed back in 2013, and then when I got the initial letter from Global, I just wanted it to go away.  But now that they've actually responded to the verification latter, and I've learned that threatening to being a suit on a time barred debt is a violation, I am wondering three things:

1) Am I correct that this debt is clearly time-barred?
2) If so, is it worth my time and effort to sue Global for a FDCRA violation?
3)  What elements need to be present in order for me to to win?  Does merely contacting me about the debt constitute a "threat of suit," or do they need to be more explicit?

Thanks in advance for your words of wisdom!
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Arbitration / Re: Will Merrick follow into arbitration?
« Last post by crandall10 on October 18, 2018 03:07:17 AM »
It's for a Hooters mastercard, Merrick is the bank that it is the actual issuer. They are the OC, and they still own it, it wasn't sold.

My dunning letter was from a local CA representing Merrick. The letter WAS from a CA, although a collection attorney seems to share the same address...so that is/was where my fear about a suit comes from.

Still within the 30 day window of receiving the initial letter, have heard zero else & I haven't responded in any way yet.

I have zero assets, no income, am unemployed, and all are easily proven.

I had a Hooters mastercard from Merrick that was c/o 8 or 9 years ago.  Merrick was the OC from beginning to end so maybe it's their policy to keep their debt in house.  Just a FYI that they will probably be the ones you deal with until the end.
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Other Interesting Stuff / Re: Judgment Creditor
« Last post by CleaningUp on October 18, 2018 02:50:55 AM »
Chester, a point to remember...

A court can issue an execution order ex parte in many jurisdictions.  And the judgement creditor is under no obligation to inform the judgement debtor that they have obtained one.

The execution orders will show up in the docket records, so the judgement debtor isn't completely blind.  But he DOES have to put on his glasses, look in the right direction, and be somewhat circumspect in securing his asset in such ways that the creditor has to be careful in how he goes about acting on the order's authority.
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Other Interesting Stuff / Re: Judgment Creditor
« Last post by chester474 on October 18, 2018 02:02:47 AM »
You don't give us enough details to give an answer.

If this is a hypothetical, as in "If a judgment creditor takes my car. . . . " there are not enough details to begin to analyze the problem.

Even judgment creditors can't just come and take property away from you.

In some states - so-called "self-help" states - if the purchaser of a motor vehicle falls behind on the payments the lender can seize the car if he can do so without committing a "breach of the peace" in doing that.

But any other creditor who just comes and takes a motor vehicle is in deep trouble.
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Arbitration / Re: Will Merrick follow into arbitration?
« Last post by BrokeBob on October 15, 2018 10:25:10 PM »
And this is exactly why I send the DV letter, especially if close to SOL.  It may take only a few days to get the validation to the consumer, but that does buy a little bit of time.

Generally (again, this could be rushed if close to SOL), they will wait some time to see if you are going to contact them after receiving the validation.

Another reason why I always do the DV close to SOL -- I always elect arbitration.  In some cases, a law firm will give me a deadline to file in JAMS or else they will sue.  I consider that a violation of the FDCPA.  Others do not.  I haven't had a case yet in which the other side has been willing to have an arbitrator decide that issue.

As I mentioned, getting the case into JAMS brings up the issue of which SOL applies. 
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Arbitration / Re: Will Merrick follow into arbitration?
« Last post by BellEbutton on October 15, 2018 09:51:19 PM »
And


All plaintiff has to do is include language in complaint to effect that complaint does not overshadow right to

DV.

That would be before the validation request has been sent.   A lawsuit is a debt collection activity.  If a timely DV is sent before a lawsuit is filed, no further collection activity (including filing lawsuits) can take place until the debt is verified.

The Ninth Circuit has observed that litigation is "consumer-debt-collection-activity." Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1032 (9th Cir. 2010)

The debt collector is perfectly free to sue within thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor. Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir.1997).

If the debt collector chooses not to wait until the end of the validation period to commence debt collection litigation, an explanation of the lawsuit's impact or more accurately, lack of impact on the disclosures made in the validation notice must be provided. This explanation should be set forth in either the validation notice itself, or in a notice provided with the summons and complaint. The best practice is to provide an explanation in both the validation notice and the summons and complaint. Clarifying that commencement of a lawsuit does not trump the validation notice will come at little or no cost to debt collectors and will ensure that the consumer rights secured under the FDCPA are not overshadowed or contradicted. Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 137 (2d Cir.2010).
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Arbitration / Re: Will Merrick follow into arbitration?
« Last post by Bubbles on October 15, 2018 09:31:58 PM »
And


All plaintiff has to do is include language in complaint to effect that complaint does not overshadow right to

DV.
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Arbitration / Re: being sued by Zwicker/American Express
« Last post by tvaughn on October 15, 2018 09:02:04 PM »
My objections have been sent.  Will post back with any updates. 
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