topic Re: SOL on Payday Loans in TX in General Credit Topics

SOL on Payday Loans in TX

melprieve — Mon, 12 Nov 2012 18:03:28 GMT

Back in Feb 2007, when I was desperate, I took out a t payday loan w/Cashnet USA. They are calling me now, today, to tell me they are filing charges with the courts in the county I live in. Is this legal?

Re: SOL on Payday Loans in TX

laz98 — Mon, 12 Nov 2012 18:40:48 GMT

Are you asking if it's legal for them to sue you, or to threaten to sue you?

It seems like you would be past the SOL for Texas, but you would still have to show up to court if they did indeed sue you.

Re: SOL on Payday Loans in TX

melprieve — Mon, 12 Nov 2012 19:00:30 GMT

Is it legal for them to sue me?

Re: SOL on Payday Loans in TX

laz98 — Mon, 12 Nov 2012 19:04:48 GMT

They can sue you, but if you show up to court & use the expired SOL as a defense, then the case should be dismissed. If you don't show up, then they can get a default judgment against you. That's why it is imperative that you show up if you are served.

Re: SOL on Payday Loans in TX

RobertEG — Mon, 12 Nov 2012 19:23:54 GMT

Expiration of any statute of limitations on debt requires a showing before the court of the relevant date, under their state law, when the SOL period began, along with a showing of your evidence from account records of that action having occured on that date. Often the DOFD on the OC account.

The plaintiff can counter by contesting either the proofs provided, or by asserting that the state statute provides for a later date or reset of that date. Simply stated, expiration of SOL must be asserted and proven in court. Thus, they do not know if you will even raise that defense, and if so, if your interpretation is accurate. The judge determines expiration of SOL.

There are, admittedly, situations where actual expiration of SOL is evident and clearly known to have expired prior to court. In such cases, debt collectors have been found by the court to be in violation of the FDCPA for even bringing legal action on a knowingly SOL-expired debt. But that does not appear to be your situation, as the key is their full knowledge that SOL has expired at the time of bringing legal action.

If you assert and prove expiration of SOL, the judge will award summary judgment to you without further considering the case on its merits.

It is imperitive that you show in court, along with your proofs.

Re: SOL on Payday Loans in TX

melprieve — Mon, 12 Nov 2012 19:48:29 GMT

I have all of my documentation. Thank you guys for your input and knowledge.

Re: SOL on Payday Loans in TX

Shogun — Mon, 12 Nov 2012 20:03:59 GMT

I believe it's only illegal in California to sue past SOL. Now I do believe it is against the rules to threaten you with a lawsuit and not follow up with it. Someone chime in here on this please because I'm not exactly sure.

Re: SOL on Payday Loans in TX

RobertEG — Tue, 13 Nov 2012 12:33:08 GMT

Bringing legal action by a debt collector when they can be shown to have had actual knowledge that the SOL had expired has been considered, in case law, as a seperate violation of the FDCPA prohibition against taking legal action that is knowlingly unenforceable.

It is based on case law interpretation of the federal FDCPA, after first showing actual expiration of the state SOL, that they had prior knowledge of that fact when bringing legal action.

Not to overemphasize the legalities, as it rarely occurs that one can go to court with proof that a debt collector had actual knowledge that the SOL had expired, and nonetheless commenced legal action. If you have proof that will withstand challenge in court, it is a legitimate counter-complaint that can be raised, possibly resulting in total judgement for the defendant. But that is a burden that requires proof of their knowledge. A tough one.....

Re: SOL on Payday Loans in TX

Hwndori — Sat, 24 Nov 2012 07:20:46 GMT

I made the same mistake back in 2007 as well. The collection company that bought our charged off accounts are dirty sharks, acting like laywers (But are not) and have threatened the SAME thing to me... They have this automated system that will even state.. "There is a process server out in your area. Please be home between the hours of 2pm and 6pm or call us at XXX-XXX to schedule a time." or this female voice that says the same thing about filing charges in your county.. blah blah... They have said it to me for YEARS and never got no process server. Threaten that the sherrif's office will be at my door at 6pm so I better be home..... THREATENING me for $127

They kept calling me even AFTER by laywer faxed them over copies of my discharge..

I was told to report them to the FBI by my lawyer which I did...(Never heard from the since)

Re: SOL on Payday Loans in TX

RobertEG — Sat, 24 Nov 2012 20:49:41 GMT

It is a violation of FDCPA 807(5) for a debt collector to make threat of legal action that either cannot legally be taken, or that they have no actual intent to take. Lack of actual intent is hard to show, but in cases such as the one posted, might be supportable.

In the scenario posted, there appears to be enough evidence of threat without any reasonable intent to actually bring the threatened action. Repeated threats followed by no filing of legal action equates, at least to me, as evidence of lack of actual intent.

I would file a formal complaint with the FTC for violation of FDCPA 807(5). The debt collector must answer any resulting FTC inquiry to them, explaining their action.

The FTC can bring sanctions or legal action if they find violation. As a practical matter, the FTC does not bring legal action on individual consumer complaints, but at the very least, the debt collector will be required to explain their actions to the FTC, and will be recorded in their files. Repeated consumer complaints for similar violation might spur the FTC to take legal action, either by way of sanction or suit.

Re: SOL on Payday Loans in TX

Dlane — Sun, 25 Nov 2012 07:24:32 GMT

That's amazing to know... I have KEPT the voicemails they left, I have all three numbers they have called me from, I have DATES and TIMES of EACH time they have called to threaten me.. It's nice to know there IS something else I can do to stop these people.

Im going to file a complaint.

Re: SOL on Payday Loans in TX

trumpet-205 — Sun, 25 Nov 2012 07:43:25 GMT

melprieve wrote:
Back in Feb 2007, when I was desperate, I took out a t payday loan w/Cashnet USA. They are calling me now, today, to tell me they are filing charges with the courts in the county I live in. Is this legal?

Umm.. You owe some people money, of course they have the rights to sue you in civil court. If they threatened you with legal action, then it can be considered as violation to FDCPA. But if they called you just to give you a heads up, no violation there.

While you are past SOL in Texas, you still need to show up in court, then you can use expired SOL as your defense.

Of course this assumes,

* You did not travel outside of US for very long (each time you travel your SOL is put on a halt)

* You did not commit any sorts of fraud to get the loan in the first place.

Re: SOL on Payday Loans in TX

chasmith — Sun, 25 Nov 2012 17:17:43 GMT

Two thoughts here:

Early payday loans had you write a postdated check. TX has strong bad check laws (criminal not civil) but if they never presented the check that doesn't work, and many states, I think including TX have made it clear that a postdated check for a payday loan is not covered by the criminal "bad check" laws. If you truly owe something the payday lender (or JDB holder of the loan) is just like any other, they must file a suit, serve you with a summons, and you can respond. If the default was in 2007 chances are you can use SOL as an affirmative defense since generally the SOL is 4 years in TX.

This sounds like a scam attempted against me. People call from a variety of numbers (Caller ID) using very Anglo-Saxon sounding names in a thick Indian accent. They claim to be associated with a named law firm and insist they will file papers immediately. When I ask for a bar license number or to speak to an attorney licensed to practice in my state they are confounded. I actually took the trouble to look up the law firm they claimed to be part of, called the main switchboard, and found this is a true scam. The callers use tiny telecom resellers to "land" phone calls from India to show as US Caller ID. I have no unpaid payday loans but don't assume they are even calling about your specific loan.

Re: SOL on Payday Loans in TX

jake619 — Sun, 25 Nov 2012 18:17:05 GMT

chasmith wrote:
The callers use tiny telecom resellers to "land" phone calls from India to show as US Caller ID.

Incorrect. Call center PBX's usually use T1, E1 and/or SIP trunks. Any of these types of carrier lines allow for a feature called "Calling Party Substitution". It allows a given set of phones or even the entire set of lines to broadcast ANY number the PBX programmer sets. We do this all of the time for customers for legitimate reasons and while here in the US there are regulations aimed at preventing outbound marketers/sales organizations from spoofing their calls with bogus numbers, there is nothing stopping them from doing it..

Re: SOL on Payday Loans in TX

chasmith — Sun, 25 Nov 2012 18:44:07 GMT

I'm sorry, I actually tracked down the telecom provider and spoke with their security dept. I think these are run from a boiler room or internet cafes in India. Same personbs call from radically different Caller ID on different days. But the number used tracked back to their provider in PA.

Re: SOL on Payday Loans in TX

jake619 — Sun, 25 Nov 2012 18:56:17 GMT

I get it. I just wanted it to be known that any number can be broadcast as the outbound caller ID so it isn't necessarily traceable to a the actual address. It sucks in cases involving credit stuff, but it's possible.

Re: SOL on Payday Loans in TX

chasmith — Sun, 25 Nov 2012 19:11:37 GMT

Dlane wrote:
That's amazing to know... I have KEPT the voicemails they left, I have all three numbers they have called me from, I have DATES and TIMES of EACH time they have called to threaten me.. It's nice to know there IS something else I can do to stop these people.

Im going to file a complaint.

TX State Law may treat you even better than Federal.

Re: SOL on Payday Loans in TX

Dlane — Tue, 04 Dec 2012 07:51:17 GMT

Ok... So after reporting those SHARKS and their threats of being arrested, serving me papers and whatnot..... Someone heard me upstairs and FINALLY did something...

This last friday there was a article in the local paper (HAHAHAHAHAH) WARNING local people about the company and they are calling people through our county scaring them with threats of being served, or being arrested unless they pay. If I could link the article I would but at leas the people within THREE counties around me wont be harrassed anymore by these jerks.

Also another article I read that whataburger SUED NCO for repeatedly calling them for an employee who owed a debt.

I wish more of us consumers had GUTS to fight back! The more we know the better we are... Just because we owe/owed a debt doesnt mean that is a license to treat us like dogs.