topic Send this letter first OR get legal opinion first in General Credit Topics

Send this letter first OR get legal opinion first

Anonymous — Thu, 20 Mar 2008 14:16:47 GMT

As some of you may know, I would like to send a CA a PFD based on debt being out of SOL, after doing a DV and getting partial documentation (last bill, no prior ones, no docs showing CA can collect, etc.)

I have a law firm that is willing to research NYS SOL/payments and supply me with relevant statutes/case-law to support my position (debt out of SOL, payments to CA based on phone convo don't re-set SOL).

I include the letter at the end of this post however my questions are the following;

1) Would a letter such as the one I include, sans case-law/statutes, that states the debt is out of SOL but I am willing to pay a portion anyway to get the item off my tradeline, generally incite a CA to pursue legal remedies, or is it more likely that the CA might counte-offer with a higher settlement?

2) If they reply that the debt is NOT out of SOL or intent to sue, would a letter from the law-firm on their letterhead with statutes/case-law then be as effective as if I just did that from the get-go.

I'd rather not spend the $$ to have the firm research and send letter out, so hoping the first letter will let them know their ability to collect is compromised.

***
This letter is to inform you that the validity of this debt is disputed.

For one thing, you did not provide me with full Documentation as you are required to, among the missing documents:

• Signed credit application between myself and the original creditor
• Copies of all statements from the date account opened until default
• Proof of agreement that you were hired by the Original creditor (creditor as defined by the FDCPA) or
• A copy of the contract Professional Collection Agency purchased the alleged debt.
• If the alleged debt was purchased, provide a copy of an agreement between Professional Collection Agency and myself, signed by me, stating that I have a contractual responsibility to Professional Collection Agency for the alleged debt
• Provide proof that Professional Collection Agency is bonded/Licensed for debt collecting in New York State

In any event, this is a time-barred debt (and has been so for at least two years) and any attempt at legal action will be responded to and counter-sued as such.
In the spirit of compromise and to save further wasted time and effort on our respective parts, I am willing to pay three hundred dollars ($300) on this account if you agree to immediate deletion of this account from any and all credit reporting agencies (Equifax, Experian and TransUnion).

The purpose of this settlement is merely to have this item removed from my credit files. It is not to be construed as an acknowledgment of liability for this debt in any form.

If you agree to the terms and accept this agreement, certified funds for the settlement amount of three hundred dollars ($300.00) will be sent to Collection Agency in exchange for full deletion of ALL references regarding this account from my credit files and full satisfaction of the debt. As certified funds will be used for payment, there shall be no waiting period regarding the deletion of this account from the credit reporting agencies.

Collection Agency agrees to delete ALL information regarding this account from the credit reporting agencies WITHIN TEN CALENDAR (10) DAYS following receipt of payment as specified above and will not discuss the terms of this settlement with anyone, excluding your client on this account. If contacted by any third party, including credit-reporting agencies, Collection Agency will not acknowledge that any settlement offer was made, accepted or executed and will, in fact, deny knowledge of any such account. Collection Agency agrees to never report this account again to any collection agencies, to not sell the account to another Collection Agency or third-party, or to take any legal recovery action in the future. Payment is considered full satisfaction of the debt in perpetuity.

If you agree to the above terms, please prepare a letter on your company letterhead explicitly agreeing to the same terms as the above settlement offer and have it signed by an authorized representative of Collection Agency. It will be implied that this letter shall constitute a legally binding contract, enforceable under the laws of my state.

Your response must be postmarked no later than 15 days from your receipt of this settlement offer or this offer will be withdrawn and I will request full validation of this alleged debt, as provided for by the Fair Debt Collection Practices Act.
**

Re: Send this letter first OR get legal opinion first

Anonymous — Thu, 20 Mar 2008 18:07:10 GMT

how old is the debt?

Re: Send this letter first OR get legal opinion first

Anonymous — Thu, 20 Mar 2008 19:27:44 GMT

The DOFD is 2/02, and for a California Cell Phone, CA is 4 years.

Made a payment by phone when I found it on my credit-report in November of last year, told them to stop when I decided to dispute/verify in December. They continued anyway and I had my bank reverse the 3 after the point I said stop and also closed my checking account (re-opened new one).

Re: Send this letter first OR get legal opinion first

Anonymous — Thu, 20 Mar 2008 19:33:13 GMT

you told the CA to stop taking payments from your account....in writting or by phone?

FEDERAL LAW SOL suit for judgment can not be filed after 2 years from DOFD

These accounts are bought and the CA usually have no info.

Did you ever DV?????

Re: Send this letter first OR get legal opinion first

Anonymous — Thu, 20 Mar 2008 19:40:59 GMT

Not a lawyer - but if that's all they have the Judge would kick it...Call a law school - bet one of the students would love to do some research for you either FREE or at a very reasosnable cost (offer to provide a refernce when they graduate - better a reference letter after the 'job').

Per Happy - cell phones are 2 years (federal code) -- and remember if the OC did a charge off SOL can't re-set even with a payment to a CA... HTH

Re: Send this letter first OR get legal opinion first

Anonymous — Thu, 20 Mar 2008 19:55:06 GMT

@Anonymous wrote:
you told the CA to stop taking payments from your account....in writting or by phone?
FEDERAL LAW SOL suit for judgment can not be filed after 2 years from DOFD
These accounts are bought and the CA usually have no info.
Did you ever DV?????

I told them to stop by phone. Same way I told them to start, so six of one...

I did DV, they replied about a week ago. Not with everything I asked for, but with the last Cingular Bill (I was already delinquint by then, ACCORDING TO THE BILL). I did not get all the statements, the original contract, or any of the docs showing the CA was signed over, could collect in New York, etc.

Thus my letter (as per my above post) wherein I first say they have not provided complete DV, AND that regardless the debt is past SOL. I did not realize cell-phones were subject to Federal SOL and not State SOL, so in fact this has been past SOL for 4+ years now.

Hopefully they will realize this as per my letter and agree to settle for something for delete. I am only wondering whether to go through the trouble to pay a lawyer to get statutes/case-law for me to quote to make this a slam-dunk.

Re: Send this letter first OR get legal opinion first

Anonymous — Thu, 20 Mar 2008 19:59:16 GMT

@Anonymous wrote:
Not a lawyer - but if that's all they have the Judge would kick it...Call a law school - bet one of the students would love to do some research for you either FREE or at a very reasosnable cost (offer to provide a refernce when they graduate - better a reference letter after the 'job').
Per Happy - cell phones are 2 years (federal code) -- and remember if the OC did a charge off SOL can't re-set even with a payment to a CA... HTH

I can't find record of a charge-off, as Cingular is not one of the items on my tradeline. I'm assuming it is CO, especially since it is Professional Collections who as far as I am aware by debts as opposed to servicing OCs'. In any event this was *assigned* to them 5 years ago.

I think I'll take your advice Lady Scarlet and post on Craigslist to see if I can find a paralegal do get me case law on SOL re-sets and Cell Phone SOL.

Maybe I can even get a PFD for less then $300?

Re: Send this letter first OR get legal opinion first

Anonymous — Thu, 20 Mar 2008 20:29:28 GMT

I think I found the relevant law by searching here, does this sound right:

http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000415----000-.html

I'd update my letter accordingly:

In any event, this is a time-barred debt (and has been so for at least 4 years as it is ) as it is subject to Federal SOL (US Collection Code: TITLE 47 > CHAPTER 5 > SUBCHAPTER IV > § 415: Limitations of actions) and any attempt at legal action will be responded to and counter-sued as such.

That should about do it if so, UNLESS they would try to argue re-setting SOL with me/judge.

Re: Send this letter first OR get legal opinion first

Anonymous — Thu, 20 Mar 2008 20:56:38 GMT

That's the code Happy Days posted (good job1) - I am hoping it applies to the 'consumer' also and not just delaings witht he commission (general consumer is referenced in subsequent para) - read the articles before and after this one --- I think it should hold up. And they have to 'make a case' for SOL resetting (and it can't reset after it expired the first time - no matter what you do).

Re: Send this letter first OR get legal opinion first

Anonymous — Thu, 20 Mar 2008 21:33:45 GMT

@Anonymous wrote:
That's the code Happy Days posted (good job1) - I am hoping it applies to the 'consumer' also and not just delaings witht he commission (general consumer is referenced in subsequent para) - read the articles before and after this one --- I think it should hold up. And they have to 'make a case' for SOL resetting (and it can't reset after it expired the first time - no matter what you do).

I wonder if quoting 'commission' vs 'consumer' law makes my case better or worse?

That is the first I've hear about SOL expiring. So re-set SOL only applies if a payment is made WITHIN the SOL? Once out of it nothing can re-set? If so I am double protected on this one.

The other two, IF they are right on DOFD (which I dispute wholeheartedly) then I made payments to CA just before SOL expired. Still hard case to make.