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State changes law on Statue of Limitations (SOL) ??

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  • State changes law on Statue of Limitations (SOL) ??

    My wife just found on the internet that in April of 2011, Arizona changed the Statue of Limitations on credit card debt to 6 years. We believe it was 3 years prior to that, (unsure). So does that mean that if the debt was prior to that change in law, would it still fall under the previous law ???

  • #2
    Not a lawyer here, but if I remember correctly.......

    You are bound by the terms of your cc. If you choose not to accept the new terms, then pay the card off or at the least, do not use the card again.

    Continued use of the card indicates acceptance of the terms.
    All information contained in this post is for informational and amusement purposes only.
    Bankruptcy is a process, not an event.......

    Comment


    • #3
      Originally posted by frogger View Post
      Not a lawyer here, but if I remember correctly.......

      You are bound by the terms of your cc. If you choose not to accept the new terms, then pay the card off or at the least, do not use the card again.

      Continued use of the card indicates acceptance of the terms.
      With all due respect, Frogger, this is a posting on a collections discussion board, on a bankruptcy chat forum. It is highly unlikely that the account which OP is asking about is still open to new charges, and in any case, closing the account to "reject" new terms has nothing to do with the matter at hand, which is the state of Arizona passed a law extending the time during which a creditor can sue for defaulted debts.

      The law makes clear that if a debt was past the SOL before April of 2011, then it remains time-barred, even though the SOL has now doubled from 3 years to 6 years. The problem is if you have debt(s) that were not past the 3-year SOL in April of 2011, but would now be past a 3-year SOL.

      That is the position I am in, and it's not clear whether that could be used as a defense since the debts were all charged off in 2009, and sold (and resold) under the old SOL. I have no idea if such a defense would work, and frankly it is probably best to just deny knowledge of the debt(s) and make the JDB's prove that the debt is valid and they have standing to collect, which they probably won't be able to do after this much time has passed.

      Comment


      • #4
        I don't know why, but I thought that Arizona was debtor-friendly. Apparently it is no longer debtor-friendly with a doubling of the statutory period for the SOL.
        Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
        Status: (Auto) Discharged and Closed! 5/10
        Visit My BKForum Blog: justbroke's Blog


        I am not an attorney. Any advice provided is not legal advice.

        Comment


        • #5
          It was until Gov Jan Brewer and the republican controlled legislature came to town.

          Originally posted by justbroke View Post
          I don't know why, but I thought that Arizona was debtor-friendly. Apparently it is no longer debtor-friendly with a doubling of the statutory period for the SOL.

          Comment


          • #6
            Originally posted by jacko View Post
            It was until Gov Jan Brewer and the republican controlled legislature came to town.
            Please keep the politics out of non-political threads. If anybody responds to the above, this thread will be closed.
            LadyInTheRed is in the black!
            Filed Chap 13 April 2010. Discharged May 2015.
            $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

            Comment


            • #7
              None of this really matters until you get sued.

              Keep in mind, the statute of limitations is ONLY a defense to a lawsuit and the burden is on the defendant to raise the defense. So, the creditors CAN still sue you even after the statute of limitation has expired. It will be up to you to respond and claim that the statute of limitations has expired. At that point, the judge will either agree with you or not. Then you will know.

              Comment


              • #8
                Originally posted by HHM View Post
                None of this really matters until you get sued.

                Keep in mind, the statute of limitations is ONLY a defense to a lawsuit and the burden is on the defendant to raise the defense. So, the creditors CAN still sue you even after the statute of limitation has expired. It will be up to you to respond and claim that the statute of limitations has expired. At that point, the judge will either agree with you or not. Then you will know.
                The problem with asserting a SOL defense is that you are admitting that the debt is/was yours, and was at one time valid. When dealing with a JDB lawsuit--especially when the debt has been sold multiple times--I do not think it is in your best interest to concede this point. Most likely, the JDB does not have, and cannot obtain, the necessary documentation to prove that the debt is yours if you contest it.

                Comment


                • #9
                  Originally posted by bcohen View Post
                  The problem with asserting a SOL defense is that you are admitting that the debt is/was yours, and was at one time valid. When dealing with a JDB lawsuit--especially when the debt has been sold multiple times--I do not think it is in your best interest to concede this point. Most likely, the JDB does not have, and cannot obtain, the necessary documentation to prove that the debt is yours if you contest it.
                  That's not true. You do not need to admit the allegations in the complaint are true in order to assert the statute of limitations defense.
                  LadyInTheRed is in the black!
                  Filed Chap 13 April 2010. Discharged May 2015.
                  $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

                  Comment


                  • #10
                    Originally posted by bcohen View Post
                    Most likely, the JDB does not have, and cannot obtain, the necessary documentation to prove that the debt is yours if you contest it.
                    That is a very valid point. Most of the JDB's only have information from compu-data or the likes, which is nothing more than a data file. These are virtually free to produce, easy to send from one JDB to another, and have only the basic information, like name, ssn, original creditor and balance due.

                    With that being said however, a lot of the accounts that are placed with the first of the third party collectors do actually have the goods/support documents to back them up.

                    It really depends on if it was placed for collections or was sold as junk debt. In our area, if you don't produce support documents in court, you don't win.
                    All information contained in this post is for informational and amusement purposes only.
                    Bankruptcy is a process, not an event.......

                    Comment


                    • #11
                      The problem with asserting a SOL defense is that you are admitting that the debt is/was yours,
                      That is not the case. Raising an affirmative defense is not a defacto admission. It is part of the standard list of affirmative defenses that goes into every Answer.

                      However, to actually prove that it is expired, YES, the debtor probably may need to submit evidence and that evidence will tend to show the debt existed and was the debtor (the better tactic, request pre-trial discovery and get the statement showing last activity from the plaintiff). Also, if you DON'T raise the SOL defense at the proper time, it is waived. However, keep in mind, a SOL defense is an absolute bar to the lawsuit. If you prove the SOL has in fact expired, it is a better strategic move to assert it than moving the case forward on its merits. Once you allow the case to move forward, you won't be able to raise the SOL later.
                      Last edited by HHM; 09-06-2012, 09:47 AM.

                      Comment


                      • #12
                        I thought I was pretty close to the SOL butttt every time I came within a month they filed suit on me and yes the junk collectors had the documents. I did get lucky with one creditor that just wrote it off. I was trying to hold out too. Beware if u have a house they will come after u and put a lien on it. Then u have to get them all removed in the end. I could have saved myself a bunch of hassle by just filing but no I waited, then I had so many payment plans from the suits it was worse cause they add more interest and fees then you had the first time. Maybe u will get lucky but if u own anything I dought it. Very hard to fight these and embarrasing because their usually at the local magistrate office where your gonna bump into people u know.

                        Comment


                        • #13
                          Originally posted by bcohen View Post
                          With all due respect, Frogger, this is a posting on a collections discussion board, on a bankruptcy chat forum. It is highly unlikely that the account which OP is asking about is still open to new charges, and in any case, closing the account to "reject" new terms has nothing to do with the matter at hand, which is the state of Arizona passed a law extending the time during which a creditor can sue for defaulted debts.

                          The law makes clear that if a debt was past the SOL before April of 2011, then it remains time-barred, even though the SOL has now doubled from 3 years to 6 years. The problem is if you have debt(s) that were not past the 3-year SOL in April of 2011, but would now be past a 3-year SOL.

                          That is the position I am in, and it's not clear whether that could be used as a defense since the debts were all charged off in 2009, and sold (and resold) under the old SOL. I have no idea if such a defense would work, and frankly it is probably best to just deny knowledge of the debt(s) and make the JDB's prove that the debt is valid and they have standing to collect, which they probably won't be able to do after this much time has passed.
                          Yep, this is true.

                          Originally posted by justbroke View Post
                          I don't know why, but I thought that Arizona was debtor-friendly. Apparently it is no longer debtor-friendly with a doubling of the statutory period for the SOL.
                          Sadly, this is true, too. Things have changed.
                          The world's simplest C & D Letter:
                          "I demand that you cease and desist from any communication with me."
                          Notice that I never actually mention or acknowledge the debt in my letter.

                          Comment


                          • #14
                            Originally posted by HHM View Post
                            That is not the case. Raising an affirmative defense is not a defacto admission. It is part of the standard list of affirmative defenses that goes into every Answer.

                            However, to actually prove that it is expired, YES, the debtor probably may need to submit evidence and that evidence will tend to show the debt existed and was the debtor (the better tactic, request pre-trial discovery and get the statement showing last activity from the plaintiff). Also, if you DON'T raise the SOL defense at the proper time, it is waived. However, keep in mind, a SOL defense is an absolute bar to the lawsuit. If you prove the SOL has in fact expired, it is a better strategic move to assert it than moving the case forward on its merits. Once you allow the case to move forward, you won't be able to raise the SOL later.

                            I haven't been sued since my debts went past the SOL, so I haven't had to use the SOL defense as a bar to the lawsuit, but if it ever does happen to me (unlikely as it is at this point), I decided I would actually use a lawyer the first time around to make sure that my written response to the lawsuit was worded correctly, just to be on the safe side.

                            Some of my very old debts are HUGE (almost $20,000 now with all the interest they tacked on to the balance), and so it makes sense to go ahead and spend a little bit of money to get the first one done right, and then just copy the wording the lawyer used for any subsequent lawsuits from other Junk Debt Buyers.
                            The world's simplest C & D Letter:
                            "I demand that you cease and desist from any communication with me."
                            Notice that I never actually mention or acknowledge the debt in my letter.

                            Comment

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