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11-12-2012 10:03 AM
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?
11-12-2012 10:40 AM
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.
11-12-2012 11:04 AM
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.
11-12-2012 11:20 AM - edited 11-12-2012 11:23 AM
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.
11-12-2012 12:03 PM
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.
11-13-2012 04:33 AM
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.....
11-23-2012 11:17 PM - edited 11-23-2012 11:20 PM
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)
11-24-2012 12:46 PM - edited 11-24-2012 12:49 PM
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.