NoMelonsNoLemons---
I think the links to threads others provided did a great job of explaining SOL's and DV. To clarify my own perspective, statute of limitations, with relation to debt, are the acts specifying the period of time within which a claimant (usually a creditor or debt collector) can legally pursue litigation in an ttempt to enforce the debt. Seperatly, there is also a limited period of time a debt can be reported to a credit reporting agency (aka Credit Reporting Time Period, CRTP). This is 7.5 years for all items, excluding bankruptcy.
There's a window between the SOL's (if less than 7.5 years) and the CRTP that I view as the real window of opportunity to not only bring the debt to finality, but also clean up your credit report. As soon as the SOL's expire, legally the creditor has no recourse to do any more harm. This is why I think during this time period, debt validation is the best option for most. If they can validate the debt they will continue to report to the credit reporting agency. However, if they were already doing so, and you believe the reporting was correct, you've not lost anything except 41 cents and some time. If the reporting is incorrect but more beneficial, I think one must consider the seriousness of the error and the effect it may have if corrected.
With all of that said, I see case after case where collection agencies file litigation well beyond the SOL's. You are then forced to mount a defense and spend time and money unnecessarily. If you've armed yourself with applicable case law, the case will probably be dismissed. Nonetheless, the whole process does cause some grief and aggrevation. I'd like to note that these situations are becoming less frequent as the result of more independent state regulations and heightened consumer awreness.
Most of us don't really want to go to court, right? We just want to make sure we have the support of regulations and laws in case we do. I think the sentiment is generally that we all want the negative information removed without any additional consequence. We want to find the least painful, most effective way to do this.
I digress, back to your original issue, to clarify, you have an account reported to a CRA that is 3 years old. It is currently with the original creditor. Is it listed as charged off? When you say it's 3 years old, does that mean you have not made any payments in 3 years? Have you read the SOL's in Indiana to determine what the time period is for written contracts and open accounts? Have you been able to locate any case law or substantiation for whether this type of debt is considered a written contract or open account in Indiana? Was this a credit card account? Is it still open?
In regards to debt validation, I'd like to provide some of my opinions on ths issue in hopes it will shed some light on your options. The FDCPA governs collection agencies debt validation practices. There may also be state specific requirements that might help you. I have not found any regulation or law that specifically outlines what a collection agency must provide to validate the debt. The FCRA and FACTA governs debt validation by original creditors. Currently, there are no direct mandates that an original creditor must validate the reported debt. However, there are laws that explicitly indicate reported information must be accurate. For this reason, most large creditors have established internal procedures for handling what's know as "consumer direct disputes". Creditors are becoming keenly aware that consumers are more knowledgable about the credit reporting laws. I'm sure you've seen advertisements for attorneys who are handling class action lawsuits and looking for individuals who may have been affected. Even though there are no specific laws to quote or refer to, consumer interpretation is very powerful. Juries are very sympathetic to consumers who are viewed as victims of big, bad financial institutions or collection agencies. For this reason, attorneys are advising collection agencies and creditors to implement internal controls in excess of the law. Therefore, if you specifically ask for reasonable validation, and it cannot be provided, creditors will frequently remove the account from it's reporting to the CRA's.
As a side note, the issue of original creditors and consumer rights to dispute with them has become a hot topic federally. In the last several months, testimony has been heard by the Committee on Financial Services for the purpose of determing whether amendments should be made to the FACTA, FCRA and FDCPA. Although opinions vary, it looks like there is quite a bit of weight behind the idea that consumers have a right to receive debt validation from original creditors. It's possible we will see laws providing more clarification on this issue in the near future.
As far as the PFD, if you are still within the SOL's and need this item removed before the SOL's expire, this may very well be your best option. If it's the original creditor you've attempted to settle with, you may be limited in your options. Have you sent a written request? My experience has been that frequently with large creditors written correspondence is more successful than phone calls. Just remember to have a warm tone. Since it's not well defined in law as to whether deleting the entire reporting is legal, a companies internal procedures are all you have to work within. You also don't want to stir the pot too much if you are within the SOL's.
Re-aging is different than tolling. I think you meant you were concerned that the debt could be tolled. Tolling suspends or restarts the SOL's. It does not necessarily restart the CRTP, but it can. The statute of limitations for a debt may be tolled by either an unconditional promise to pay the debt or an acknowledgement of the debt (i.e, payments, written or verbal statement, etc).When a debt is tolled, the time limitation on bringing a lawsuit to enforce payment of the debt is suspended until the time for payment established under the promise or acknowledgment has arrived. Upon that due date, the statute of limitations will either resume or start over.
Re-aging is a voluntary practice by creditors where they agree to report your account in a positive status, sometimes as of a given date or sometimes from day 1 of the accont history, in exchange for a defined period of payments made on time.
If you can provide some specifics of the situation, I'll do my best to provide any information I have that may be pertinent.
I'll post my PFD in the next few days.Below is the DV letter I used for an account outside of the SOL's. If within the SOL's, I would advise use of different, more amiable, letter.
August 26, 2007
Jones Collection Agency
222 1st Street
Noplace, FL33333
Re: Account #: 5555555
Original Creditor: Smith & Smith Corp
Dear Sir or Madam:
This letter hereby notifies you that the validity of this debt is in dispute. In an attempt to validate this debt, I am requesting evidence of this debt, specifically the alleged contract or other instrument bearing my signature, as well as proof of your authority in this matter. Absent such substantiation, under federal and state law you must correct any erroneous reporting to any and all credit reporting agencies
In accordance with Section 809 of the Fair Debt Collection Practices Act, Fair Credit Reporting Act and corresponding case law, please provide me, in writing, the following information:
- A copy of the alleged original contract or other instrument bearing my signature
- Complete account history, including, all statements, records of all activity, payments, collection attempts, and any charges added for collection activity; In short, any and all documentation pertaining to this account
- Evidence of your authorization under 15 USC 1692(e) and 15 USC 1692(f) in this alleged matter
- Evidence that your company is registered as a consumer collection agency in the State of Florida
Additionally, until full validation is provided, all representatives of your company, or any affiliated company, must immediately cease & desist all attempts to collect the aforementioned debt. Failure of your company to comply with this request will be a violation of the Fair Debt Collection Practices Act and will directly result in a complaint filed with the Federal Trade Commission and the State of Florida Attorney General's office. Please be advised, should this request be violated, I will pursue all criminal and civil claims, including any and all punitive damages, allowable by federal and state law against your company.
Failure to respond, in writing, and in a timely manner, will serve as a waiver to any and all of your claims in this matter and that this matter is permanently closed. Please provide the requested information or correct your records and immediately request the removal of this invalid debt from all sources to which you may have reported.
For the purposes of 15 USC 1692 et seq., this Notice has the same effect as a dispute to the validity of the alleged debt and a dispute to the validity of your claims. This Notice is an attempt to correct your records, and any information received from you will be retained should further action become necessary. This is a request for information only, and is not a statement, election, or waiver of status.
I look forward to your timely response.
Best regards,
Jane Doe
