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Statute Of Limitations Question.

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  • Statute Of Limitations Question.

    So I am nearing the 3 years SC SOL on some of my 7 cards. I have been sued by 1 already last year, one has passed, and it looks like 2 cards are at 3 years in about a month with the remaining 3 cards having about 6 months. So my question is would the creditor have to file a lawsuit within 3 years or does the 3 years have to fall within the date when the judgement is handed down by a court. Example SOL on a card expires in June 2013. If the creditor files suit in May 2013 but the case isn't heard by the court until October 2013 would I have a SOL defense. I notice that the judgement I got last year was filed around October but the case wasn't heard and judgement issued until about 5 months later. I chose not to file bankruptcy and can live with 1 of 7 judgements, but don't want more than 1. I show nothing on my credit report, no house, no job, no credit cards, no car loan. I wonder if the other cards see I have nothing going on and already have a judgement on file (they will have to get in line) and my state has a no wage garnishment law and will leave me alone. This is the hope I've had. Any thoughts?

  • #2
    Originally posted by CCM620 View Post
    So my question is would the creditor have to file a lawsuit within 3 years or does the 3 years have to fall within the date when the judgement is handed down by a court.
    The lawsuit has to be filed within the 3 years, not the judgment.
    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


    • #3
      When does the 3 years start, if I am reading from my credit report on an account it lists date of last payment of 5/2010 and date of first delinquency of 7/2010. What would be the exact date where the 3 years starts from?

      Comment


      • #4
        Originally posted by CCM620 View Post
        When does the 3 years start, if I am reading from my credit report on an account it lists date of last payment of 5/2010 and date of first delinquency of 7/2010. What would be the exact date where the 3 years starts from?
        Probably 7/2010. But laws vary by state and I don't know SC law.
        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


        • #5
          Originally posted by CCM620 View Post
          When does the 3 years start, if I am reading from my credit report on an account it lists date of last payment of 5/2010 and date of first delinquency of 7/2010. What would be the exact date where the 3 years starts from?
          The statute of limitations starts ticking down the month of your first missed payment. In other words, look on your credit report, and usually it will say the date of last payment. Assuming you made no more payments after that date (which reset the SOL in most states), simply add one month to that date. That will be your date of default. This is the date when the creditor first had the opportunity to sue you over your breach of contract.

          In your example, you would think the date of first delinquency would have been June 2007, but even in my own credit reports, they usually skip a month after the date of last payment for the date of first delinquency. In fact, one of mine said the date of last payment was January 2006, but the date of first delinquency is listed as May 2006. In my opinion, the date of last payment is the only one that matters when you are trying to figure out if the SOL has expired.

          The statute of limitations stops ticking down the day they file the lawsuit against you.

          So, in your example, assuming a SOL of 3 years, the debts will be beyond the SOL in June 2013. On the exact day of the month when you made the last payment 3 years ago.
          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


          • #6
            Originally posted by GoingDown View Post

            ....The statute of limitations stops ticking down the day they file the lawsuit against you.

            So, in your example, assuming a SOL of 3 years, the debts will be beyond the SOL in June 2013. On the exact day of the month when you made the last payment 3 years ago.
            I've always wondered about that. So, if two lenders sued you early on after default, the statute would be tolled until those suits were decided, correct? I have two suits that took from 8 to nine months to be dismissed. So, I guess the time for reaching the statute of limitations for both, was now extended that much longer.

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            • #7
              Originally posted by ryan View Post
              I've always wondered about that. So, if two lenders sued you early on after default, the statute would be tolled until those suits were decided, correct? I have two suits that took from 8 to nine months to be dismissed. So, I guess the time for reaching the statute of limitations for both, was now extended that much longer.
              First of all, were they dismissed with prejudice? If so, tolling doesn't apply at all, and they're done and you don't have to worry about them ever again, but keep that documentation from the court saying they were dismissed with prejudice forever. I would personally scan the documents into my computer and send them as an email attachment to myself, so I always had a copy of them backed up somewhere in the cloud forever.

              In the cases you mentioned, if they were dismissed without prejudice, the tolling only applies to preventing the SOL from running out before they get a judgment for an active ongoing lawsuit, and thus, preventing the debtor from claiming the SOL as an affirmative defense for a lawsuit which was filed just days from the expiration of the SOL.

              For example...

              Let's say I had a $13,000 Wells Fargo Visa Card debt in the year 2005. Let's say I made one last payment on January 2nd, 2006, and then never again made any payments on that account.

              The date of last payment for that account would have been January 2nd, 2006.

              The date of the first missed payment (default) would have been February 2nd, 2006.

              Under current Arizona law, the SOL for a lawsuit would expire 6 years later on February 2nd, 2012.

              Let's say Wells Fargo filed a lawsuit against me on January 20th, 2012. The SOL would toll from January 20th, 2012, until the case was dismissed or until they got a judgment against me. So, the lawsuit would take longer than a few weeks to wrap up, and the SOL would expire if it was not tolled during that time.

              But let's add a wrinkle to it. Let's say I started dragging my feet and fighting them in court with all sorts of motions and so forth, and running up their legal bills to the point where they got sick of me and dismissed the case without prejudice on November 3rd, 2012.

              That's it. They're done. The original statute of limitation kicks back in-- February 2nd, 2012.

              The tolling only applies to an active lawsuit. Once the lawsuit is dismissed, even without prejudice, the debtor can now assert the SOL as an affirmative defense against any future lawsuit filed by the creditor or junk debt buyer.

              The tolling you are thinking of only applies when they cannot sue you because, for example, you are outside of the country, etc.

              So, if I were in that situation, and if one of them decided to sue me again, I would raise the SOL as an affirmative defense against their time-barred lawsuit.
              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


              • #8
                If a collection company continues to call you after the SOL can they be hit with an FDCPA fine?
                What about the original creditor who sold them the debt?

                Comment


                • #9
                  Originally posted by mdl View Post
                  If a collection company continues to call you after the SOL can they be hit with an FDCPA fine?
                  What about the original creditor who sold them the debt?
                  The FDCPA does not prohibit a debt collector from trying to collect a debt on which the SOL has expired. But, they cannot sue you or threaten to sue you. If you ask, they must tell you whether the SOL has expired on the debt. This is based on the following FTC webpage https://www.consumer.ftc.gov/article...e-barred-debts
                  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
                    Do statutes of limitations on lawsuits include private student loans?

                    Comment


                    • #11
                      AllMyDefault, yes. See the response in your other thread.

                      I waited out SOL (4 years in my state) on some credit card debt when I was young. Because of differences in how some lawyers/courts view SOL, I didn't feel safe until 4 years and 6 months.
                      Chapter 7, above median, no asset. Discharged with no UST involvement.

                      Comment

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