Portfolio bought my huge and out of SOL debt and are threatening legal action.

[ndkblondie]

Hi,

New here and thanks so much for reading my post.

Portfolio bought a charge off that was a year and half out of SOL.  I sent them a DV and they sent back 2 old bills/statements from the OC and said they are updating my file to say customer disputes after resolution.

2 Questions:  

As I understand it, CA's are not allowed to use threats of legal action on time barred debt and they are supposed to state that they can no longer sue you.  Is this true?  Can I use this to get rid of them and how would I do it?

The balance is 11k and out of SOL, since it's so big is it more likely that they would PFD?

Anxiously awaiting thoughts.

Thank you!

[guiness56]

As I understand it, CA's are not allowed to use threats of legal action on time barred debt and they are supposed to state that they can no longer sue you.  Is this true?

CAs cannot threaten to sue on any debt if they don't intend to.  No, they do not have to state the debt is time barred and can longer sue.  Some will but no legal requirement to do so.

They may do a PFD.  What is the DoFD on the debt?

[ndkblondie]

DOFD is Feb 2008, we lived in Cali until we were there past the 4 year SOL.  I thought there was regulation about misleading consumers that time barred debt is enforceable...   Anyway, they also sent me a etter through Mary Jane M Elliott PC back in November of last year.  Until I DV'd them, that was their last correspondence.  Their prior letters basically said the account was "selected for legal review" and they offered a settlement that was not great.

[RobertEG]

Expiration of SOL is not usually a matter that is factually clear from simply a view of age since DOFD.

It requires proofs of tho relevant dates, and also consideration of any possible reset provisions under your state statute.

While the consumer may consider SOL to have expired, and may additionally be correct, final determiation of whether SOL has expired might require a judge to review contested views and interpret the facts under the statute.  A debt collector does not have the clear light of such determination, and is not necessarily able to determine whether an SOL has expired.

However, if the facts of a given case are clear, or the debt collector concurs that SOL has expired, there is abundant case law to support that taking or threatening to take legal action is a violation of the FDCPA.  If a debt collector is aware of actual expiration of SOL and does not contest it, they often will prudently include a statement in further communications of that fact so as to avoid any appearnce of violation of the FDCPA.

How solid and clear is your assumption that SOL has expired, and do you have any evidence that the debt collector was aware of such expiration piror to making any threat to take legal action?  Did they have acutal knowledge?

[ndkblondie]

---

How solid and clear is your assumption that SOL has expired, and do you have any evidence that the debt collector was aware of such expiration piror to making any threat to take legal action?  Did they have acutal knowledge?

---

This was a company debt that was personally guaranteed by my husband.  Our last payment on it was 2/08 and the SOL in Cali is 4 years.  The only thing sticky is that we moved to Michigan last year which has a longer SOL (6 years) after the SOL in Calif had expired.   They may be trying to enforce the SOL in our new state but my understanding is that if the SOL has already expired before you move, it cannot be extended.  We have another debt with the same situation with LVNV, their last letter acknowledged that it is out of SOL and they won't sue us but will continue to collect.

How can I flush them out?  Should I send them a letter informing them that I am aware that this debt is out of SOL and that they are in violation of the FDCPA by threatening legal action? I have three letters from them stating if I pay I can avoid legal action.  I could come out guns blazing and see if I can make them delete or do I just want them to admit it and then go to my attorney general and FDCPA?

How do I prove that we were still in the state of Cali through the four years?  Will personal utility bills, bank statements and business license for the company do the trick?  

The evidence I have that they are aware is the validation documentation they sent.  It was a credit card statement showing last payment on 02/08 with a California address on it and their letters state the date they purchased the debt, they bought it already past the SOL which I understand the state of Cali does not look favorably on.  

The only correspondence from PRA and their attorney has been to our new address in Michigan, they must have seen a deed or something on our credit report which made them come after us or maybe they really don't know it's out of SOL.

What should I do next?  The limit of my experience thus far has been CRA disputes and a couple validation letters.