Another CA and SOL Question

[Anonymous]

Ok, I've already posted that Portfolio Recovery has recently shown up on my reports, and since they are listing it as a recent account (opened 09/07, defaulted 10/07) my scores have tanked. (Can this be considered reaging?)

I'm waiting on an answer from my AG as to the exact timelimit for SOL. There was some question as to the exact timelimit in my state, FL, and I'm hoping that they will come back with 4 years for CC, as that will put it out of SOL.

My question is, if they do decide to sue, they have to do it in FL and in my local county, right?

I just want to make sure that I can get there to defend myself.

When I get the answer from the AG, if it's in my favor, I plan on hitting them with everything I can to get this off. I know from research that they probably bought it for less than a penny on the dollar, and when I PFD them, don't plan on offering much more than that.

I've also found out that they are in the top four of the worst CA's, and have been heavily fined by the gov't for their collection practices, so figure I'll be in for a fight.

Thanks for any insight.

[davidboca]

SOL in FL is 5 years for credit cards(Amex, MC, Visa, Discover, Diner's Club, et cetera) unless you do not have a written contract in which case it is 4 years. Charge Cards( Store, Gas) are sometimes allowed to fall under the 4 year SOL even if there is a written contract...but only SOMETIMES.

Florida Statute  95.11

[LuvsRetro]

Hey, scoppe: 

Please post what you find out from the AG, but, meanwhile, I went on PACER and pulled up some cases filed against Portfolio (Florida residents only) trying to find someone who encountered the SOL.  There is one case that I saved where a woman sued Portfolio (it was for a Discover Card), one of her claims included the SOL stating that it was time barred and she was utlizing the 4 year, however, Portfolio's atty stated that because she signed the application for credit when she applied, that the 5 year was applicable in this case. 

So, the issue is going to be if you did or did not sign the application-

However, there may also be other claims, so document everything.  It appears that Portfolio violated the cease and desist and I think there were a couple of other issues involved.  They settled out of court with no mention of what the settlement terms,  however,  it was mentioned that each paid their own atty fees.  That kind of makes me think that Portfolio got nothing in exchange for dismissal of the complaint.

[Anonymous]

Truth in Lending Act (reg Z) federal legislation classifies CCs as open accounts - federal trumps state any day in my book. 

http://www.fdic.gov/regulations/laws/rules/6500-1400.html

[George2037]

Fed Law Trumps State only when State laws are more lenient than the Fed.  Basically when a state creates a law it has to be tighter in limitations or hold a higher standard for it to hold water in a court room.

Perfect example would be Medical Marijuana:  Feds say it's illegal for everyone, California says it's ok for Doc to prescribed it.  Fed law Trumps it because it's stricter.

It would depend on how the Judge looks at it, if the Shorter SOL is stricter on the CA or more lenient for the the Debtor.  The Judge will probably look at it as being Stricter on the CA, but you never know.

[Anonymous]

They can sue IN FL or where the "Open Contract" was opened. IE: Where you lived when the acct was opened.

My question is, if they do decide to sue, they have to do it in FL and in my local county, right?

[Anonymous]

From what I have learned so far - yes, the county where you live (or where you signed originally).  It has to do with jurisdiction over you - one of the parties MUST be 'resident' in that jurisdiction (or the act occured in the jurisdiction).  I.E. they can sue you in Broward County FL even through they are a South Dakota corporation  because you reside in Broward County FL.  Trying to get Pinellas to have jurisdiction over you would be hard (and that would be your affirmative defense - lack of jurisdiction).

[Anonymous]

Well, going back through my old reports (thank goodness I saved them), the OC was only reporting to EQ and TU.

Both are showing acct opened 03/01, I lived in FL then, so they would have to sue in FL.

EQ shows DOLA of 03/03 and TU DOLA of 01/03.  I doubt CA would be willing to split the difference (JK ) Both of these were taken from my July 07 reports.

It's showing on MyFico reports as a Collection on TU and EX with an assignment date of 09/26/07.  MyFico EQ has it listed under Accounts as an Open Account w/ Date Opened as Not on Record.

When I pull direct from EX it shows an opening date of 09/01/07, with key Default of Nov 07.

Assuming the Assignment date of 09/07, they should have given me written notice w/i 30 days. They did a Hard on my TU on 11/05/07, so they have my correct address. To date I have received nothing from them.

OC was also reporting acct "OK" starting in July 07, when no payments were being made, and shows OK status through Nov 07.

I guess I'm just gearing up for the inevitable confrontation.

[Anonymous]

Everyone, thanks so much for your advice and input.

Your links and suggestions have spurred me on to learn as much as possible about this.

Thanks again.

[Anonymous]

scoppe, they can sue in FL or where you live now (if another state) - they will pick whichever one they want (or is to their advantage) - so if you haven't move out of Fl, it's FL.