Paying OC who still owns account

[Anonymous]

I have done a million searches on this board to understand the subject better, but the information is conflicting and now Im even more confused. So, please help me! I have a charged off cc with Capital One and they have not sold it to a CA.

1. If I contact CapOne and offer a settlement amount, will it somehow reset SOL? I live in Texas.

2. What is the best way to contact an OC to offer settlement if they still own account?

3. The amount charged off was 166, now I owe 968. Does anyone any experience with settling for less than full with Cap one?

Status:  Account charged off/Past due 150 days. $166 written off. $968 past due as of Jul 2008.
Status Details:  This account is scheduled to continue on record until Apr 2011.


Date Opened:
05/2004 Type:
Revolving Reported Since:
05/2004 Terms:
NA Date of Status:
01/2005 Monthly Payment:
$0 Last Reported:
07/2008 Responsibility:
Individual
Credit Limit/Original Amount:
NA High Balance:
$968 Recent Balance:
$968 as of 07/2008 Recent Payment:
$0 Creditor's statement:  Account closed at credit grantor's request.

[guiness56]

In Texas, the SOL can be reset by a written and signed acknowledgment. So, if you pay by your check it could possibly be reset. If paid by cash or by someone else, it would not reset the SOL.

There are several case laws that attest to this.

When was your last payment?

One other thing, SOL are tolled in TX. Meaning, if you left the state for any amount of time, the SOL stops and is restarted when you return.

[Anonymous]

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@guiness56 wrote:
In Texas, the SOL can be reset by a written and signed acknowledgment. So, if you pay by your check it could possibly be reset. If paid by cash or by someone else, it would not reset the SOL.

There are several case laws that attest to this.

When was your last payment?

One other thing, SOL are tolled in TX. Meaning, if you left the state for any amount of time, the SOL stops and is restarted when you return.

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With all due respect, Guiness (and I'm NOT being facetious or sarcastic), may I ask where you read that in regards to tolling? I've read the SoL for TX in regards to debt (Texas Civil Practice & Remedies Code § 16.004) it says that NO WHERE. It states, quite simply, that there is a "blanket" SoL on all debts of 4 years. It does not state that tolling can EVER occur, whether with payment or payment promises.

However, most times, Utah's SoL is listed directly below that of TX on most websites and UT DOES toll debts upon admission of ownership.

[guiness56]

I read the Texas code. And it clearly states that the SOL is tolled.

[Anonymous]

Also per TX SoL the only time the time allowed to file suit can be tolled is in cases of injury or assault. Not debts.

[Anonymous]

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@guiness56 wrote:
I read the Texas code. And it clearly states that the SOL is tolled.

---

Here's the TX SoL as it is written in the actual codes:

§ 16.004. FOUR-YEAR LIMITATIONS PERIOD. (a) A person
must bring suit on the following actions not later than four years
after the day the cause of action accrues:
(1) specific performance of a contract for the
conveyance of real property;
(2) penalty or damages on the penal clause of a bond to
convey real property;
(3) debt;
(4) fraud; or
(5) breach of fiduciary duty.
(b) A person must bring suit on the bond of an executor,
administrator, or guardian not later than four years after the day
of the death, resignation, removal, or discharge of the executor,
administrator, or guardian.
(c) A person must bring suit against his partner for a
settlement of partnership accounts, and must bring an action on an
open or stated account, or on a mutual and current account
concerning the trade of merchandise between merchants or their
agents or factors, not later than four years after the day that the
cause of action accrues. For purposes of this subsection, the cause
of action accrues on the day that the dealings in which the parties
were interested together cease.

No where in this section does it mention tolling in regards to debt.

Here's the TX SoL in regards to filing suit for injurious acts (rape, injury, etc):

§ 16.0045. FIVE-YEAR LIMITATIONS PERIOD. (a) A person
must bring suit for personal injury not later than five years after
the day the cause of action accrues if the injury arises as a result
of conduct that violates:
(1) Section 22.011, Penal Code (sexual assault);
(2) Section 22.021, Penal Code (aggravated sexual
assault); or
(3) Section 21.02, Penal Code (continuous sexual abuse
of young child or children).
(b) In an action for injury resulting in death arising as a
result of conduct described by Subsection (a), the cause of action
accrues on the death of the injured person.
(c) The limitations period under this section is tolled for
a suit on the filing of a petition by any person in an appropriate
court alleging that the identity of the defendant in the suit is
unknown and designating the unknown defendant as "John or Jane
Doe." The person filing the petition shall proceed with due
diligence to discover the identity of the defendant and amend the
petition by substituting the real name of the defendant for "John or
Jane Doe" not later than the 30th day after the date that the
defendant is identified to the plaintiff. The limitations period
begins running again on the date that the petition is amended.

However, as state in the section title, it's not for debts, just injurious acts.

Do you see what I mean?

Message Edited by Wonderin on 07-27-2008 12:54 PM

[guiness56]

For clarification, here is the statute as written in the actual codes.

§ 16.063. TEMPORARY ABSENCE FROM STATE. The absence
from this state of a person against whom a cause of action may be
maintained suspends the running of the applicable statute of
limitations for the period of the person's absence.

Message Edited by guiness56 on 07-27-2008 11:06 AM

[Anonymous]

Do you see why Im so confused?

To answer the question of when I made a payment, I dont remember, I cant even remember having this card.....

So, what do I do????? HELP!!!!

[Anonymous]

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guiness56 wrote:
For clarification, here is the statute.

§ 16.063. TEMPORARY ABSENCE FROM STATE. The absence
from this state of a person against whom a cause of action may be
maintained suspends the running of the applicable statute of
limitations for the period of the person's absence.

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I have never left the state, so this doesnt apply to me anyway. Any other suggestions? I really need help.

[guiness56]

As I am not an attorney, I would suggest you contact one in TX. Ask them what the laws are pertaining to SOL. Most of them will answer a question over the phone without charge.

Not remembering having the card makes a big difference. Send them a DV letter. You can search on here for one. Type your name but do not sign it. Send it CMRRR to create a paper trail. It puts the burden of proof on them to prove you owe the debt.

Message Edited by guiness56 on 07-27-2008 11:05 AM