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Sued possibly past the SOL

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Anonymous
Not applicable

Sued possibly past the SOL

I received a call a few days ago regarding a pending lawsuit/judgement.

 

I returned the call this morning to call their bluff.  Here's what the rep told me.

 

The account was opened in 8/2001.  Payments were made on the account until 3/2003.  I asked about it being past SOL.  He said they are going by UT law, which is 7 years (I googled it and found the SOL for UT is 6 years for written contracts).  I live in TN and moved from GA just last year.  The account would have been opened in GA.  TN & GA SOL is 6 years for written contracts.  I told the rep that I guess they will just sue me where it's convenient, he says, well if we did that, we'd sue you in KY.  He goes further to tell me this account is now on my credit.  I tell him no way and he says it was just reported on my Experian CR on 10/22.  I have the monitoring, pulled a new report and it's not there..  The amount due is $2300.  Interest is accruing daily. I just bought a house, so I guess any old debts are coming out of the wood work, rather or not they are valid is not relevant.  He even told me that I have an alias.  I told him about being a victim fraud in the past.  He tells me to call back Monday and get more info.  They were just giving me a heads up before they sue me.

 

By the way, the rep is from the law offices of Tracy Paul.  I looked them up and they are known for trying to get people to pay for debts that are past SOL. 

 

I'd love to get some advice from the forum.

 

Thanks. 

Message 1 of 8
7 REPLIES 7
Anonymous
Not applicable

Re: Sued possibly past the SOL

Sounds like they are on a fishing expedition to get you to restart the clock as they know the SOL is past, It isn't likely they'll bring any suit, but if they were to, I'd petition the court to move the case to your state, 

 

As far as I know, I think they can only bring suit in the state where the creditor was incorporated or in your home state not in UT which is probably where they are located,,,  That's why most of the credit card companies are incorporated either in Delaware or South Dakota to take advantage of those states laws,  however I'm not an attourney and I know that talking to one for an hour is $330 just to get their opinion,

 

Hopefully someone else knows more than me, which is highly likely,

 

Good luck,

 

Message 2 of 8
Anonymous
Not applicable

Re: Sued possibly past the SOL


@Anonymous wrote:

I received a call a few days ago regarding a pending lawsuit/judgement.

 

I returned the call this morning to call their bluff.  Here's what the rep told me.

 

The account was opened in 8/2001.  Payments were made on the account until 3/2003.  I asked about it being past SOL.  He said they are going by UT law, which is 7 years (I googled it and found the SOL for UT is 6 years for written contracts).  I live in TN and moved from GA just last year.  The account would have been opened in GA.  TN & GA SOL is 6 years for written contracts.  I told the rep that I guess they will just sue me where it's convenient, he says, well if we did that, we'd sue you in KY.  He goes further to tell me this account is now on my credit.  I tell him no way and he says it was just reported on my Experian CR on 10/22.  I have the monitoring, pulled a new report and it's not there..  The amount due is $2300.  Interest is accruing daily. I just bought a house, so I guess any old debts are coming out of the wood work, rather or not they are valid is not relevant.  He even told me that I have an alias.  I told him about being a victim fraud in the past.  He tells me to call back Monday and get more info.  They were just giving me a heads up before they sue me.

 

By the way, the rep is from the law offices of Tracy Paul.  I looked them up and they are known for trying to get people to pay for debts that are past SOL. 

 

I'd love to get some advice from the forum.

 

Thanks. 


First, a creditor cannot "forum shop" for the best State for them to file a lawsuit.  The law for contracts is generally the State where the Contract was entered into or where the defendant resides.  Does UT meet that standard?

 

Secondly, SOL is an affirmative defense, not a bar to filing a lawsuit.  If they file a lawsuit after the SOL runs and you are served, you must respond to the pleading and raise the SOL as a bar to the action.  If you ignore the lawsuit, you will lose.

 

That being said, I would assume these are threatening tactics, hoping to scare you into paying the debt.  Most likely, they will not follow-up with a lawsuit but YMMV.  Personally, I'd wait to see their next move.

Message 3 of 8
Watchmann
Valued Contributor

Re: Sued possibly past the SOL

I thought the SOL was based on the state where the CC business is located, in this case it seems to be UT.  That's why a lot of card companies are based out of South Dakota, their laws pertaining to credit cards are favorable to the companies.  But I might well be mistaken.  To be safe I'd read the fine print in your card agreement.
Message 4 of 8
Anonymous
Not applicable

Re: Sued possibly past the SOL


@Watchmann wrote:
I thought the SOL was based on the state where the CC business is located, in this case it seems to be UT.  That's why a lot of card companies are based out of South Dakota, their laws pertaining to credit cards are favorable to the companies.  But I might well be mistaken.  To be safe I'd read the fine print in your card agreement.

The residence, or domicile, of the credit card company is not relevant. The proper forum is where debtor resides, or where contract is entered into.

Message 5 of 8
RobertEG
Legendary Contributor

Re: Sued possibly past the SOL

The Utah state statute of limitations is set forth for "open accounts" (i.e., revoloving debt) under Utah Civil Code, Section  78-12-25:

 

Within four years.
     An action may be brought within four years:
     (1) upon a contract, obligation, or liability not founded upon an instrument in writing; also on an open account for goods, wares, and merchandise, and for any article charged on a store account; also on an open account for work, labor or services rendered, or materials furnished; provided, that action in all of the foregoing cases may be commenced at any time within four years after the last charge is made or the last payment is received;
    

 

Message 6 of 8
Anonymous
Not applicable

Re: Sued possibly past the SOL


@Anonymous wrote:

I received a call a few days ago regarding a pending lawsuit/judgement.

 

I returned the call this morning to call their bluff.  Here's what the rep told me.

 

The account was opened in 8/2001.  Payments were made on the account until 3/2003.  I asked about it being past SOL.  He said they are going by UT law, which is 7 years (I googled it and found the SOL for UT is 6 years for written contracts).  I live in TN and moved from GA just last year.  The account would have been opened in GA.  TN & GA SOL is 6 years for written contracts.  I told the rep that I guess they will just sue me where it's convenient, he says, well if we did that, we'd sue you in KY.  He goes further to tell me this account is now on my credit.  I tell him no way and he says it was just reported on my Experian CR on 10/22.  I have the monitoring, pulled a new report and it's not there..  The amount due is $2300.  Interest is accruing daily. I just bought a house, so I guess any old debts are coming out of the wood work, rather or not they are valid is not relevant.  He even told me that I have an alias.  I told him about being a victim fraud in the past.  He tells me to call back Monday and get more info.  They were just giving me a heads up before they sue me.

 

By the way, the rep is from the law offices of Tracy Paul.  I looked them up and they are known for trying to get people to pay for debts that are past SOL. 

 

I'd love to get some advice from the forum.

 

Thanks. 


 

First of all, the SOL that must be used is either for the state where you opened the account or where you curently reside.  There are variances in that some states mandate the relevant SOL is the state in which you currently reside, but no state allows using the SOL from the state where the creditor is incorporated -- unless you happen to either reside in that state or lived there when you opened the account.  The prime reason why creditors incorporate in, say, South Dakota is for purposes of interest rates and usury laws.

 

While an SOL defense is an affirmative defense, many states have passed legislation that penalizes creditors who file suits on debts that are time barred.  Also, the FTC has indicated that filing suit on a time-barred debt is a violation of the FDCPA.  Still, if served, you'd be wise to respond.  One way to avoid possible issues is to notify the creditor in writing that you know legal action on the debt is barred under the SOL and that you will take legal action against them if they try to sue you for the debt anyhow knowing that.  In that same letter you can tell them not to contact you further or, if you are so inclined, offer them a settlement without indicating that you ackmowledge the debt.

 

Although every state is different, usually a credit card account is not considered an account with a written contract for SOL purposes.  Most of the time it is termed an open-ended credit account.  You need to look at your state's civil procedure law to tell.

 

 

Message 7 of 8
Anonymous
Not applicable

Re: Sued possibly past the SOL

Is the OC reporting?  What is the debt for?  Type of account is either  open account (CC and all utilities) or promisorry note (auto,mortgage or personal loan)

 

You should be past SOL even if the DOFD is 3/2003.   Mail a DV CMRRR and the past SOL letter.

 

Never talk to a CA .

 

Opt-out with the CRAs so that your info is no longer sold.

https://www.optoutprescreen.com/?rf=t

Message 8 of 8
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