QUESTION

Which SOL will the courts look at?

Asked on Jun 16th, 2013 on Bankruptcy - North Carolina
More details to this question:
I have been cleaning up my credit for years and there is one account that a collection agency has in my eyes used illegal tactics but I’ll leave that for you to judge. The account is around 5.5 years old and I disputed it before on my credit report and it was removed. They relisted it on CR except they have it dated like it is a new debt now. Is that legal? I have asked for validation. Also the SOL where I was when the debt was acquired was in NJ is 6 years but I have lived in PA for 2 years and the SOL is only 4 years.
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1 ANSWER

It depends. Before I address your statute of limitation question, you describe the creditor as "refreshing" the date of the date and ask if its legal. The answer is no, its not lawful. As per the Fair Credit Reporting Act (FCRA), information about the debt can only stay on your credit report for about 7 1/2 years from the date that you last paid. See FCRA, 15 USC ? 1681c(a)(1). It is a violation of the FCRA to furnish incorrect information. What you need to do is write to the credit bureaus who are reporting the debt and dispute the information. Send the letter by certified mail return receipt requested. If the credit bureaus maintain that the information is correct, then you need to send a certified letter to the creditor supplying the information and ask them to correct. Again, you send the letter via certified mail, return receipt requested. You need to do this and follow the steps before you can sue whoever owns the debt now. However, disputing the date the debt was sent for collection now should not result in the removal of the debt. If the debt is less than 7 years old, then it can be listed on your report. What is incorrect is making it appear as if the debt was recent charge-off. The statute of limitations is a defense to the debt that is raised in court. It has nothing to do with how the debt is reported on your credit. For things like credit card debts, the statute of limitations can be either in the place where you reside now or in the place where the credit card was taken out, whichever is longer. It can also be as provided for in the agreement between the parties. You indicate that the debt was taken out in NJ. If so, NJ appears to have a 6-year statute of limitations, although I am not admitted to practice there and you should confirm with a NJ-licensed attorney. The problem is that the statute of limitation is only a court defense. That means that if you are sued in court, you raise the defense in an answer filed with the court. It does not mean that you don't owe the debt or that the creditor cannot try and collect. And it does not mean that it cannot be reported on your credit report either (assuming that the date of delinquency is correctly reported). The other tricky thing about statute of limitations concerns tolling provisions and borrowing provisions. I have seen a case where the contract (credit card agreement) provided it would be governed by the law of state A. Neither the credit card agreement nor the debtor lived in state A. The debtor tried to object to a lawsuit that was brought 6 years later alleging the expiration of the statute but the court said that under the tolling provisions in state A the statute was tolled, i.e., it never began to even run because the debtor was never in state A. That case is probably very fact specific but it points out the dangers of just relying on what you think the statute of limitations is. If you ever get sued, that is the time you need to speak to a lawyer who specializes in FDCPA/FCRA violations or credit card defense. The lawyer will have to review the original credit card agreement as well as the state tolling/borrowing provisions to see what they say. There is also such a thing as judge made law. The statute may say one thing and you might think it would apply, but if a court has determined otherwise that a different statute applies then the court law might govern. This situation is typified by GA law (where I am also admitted). In GA, you would think a 4-year statute of limitations applies and you would be wrong because GA caselaw says that is 6 years. Go figure. PA does hold that it is 4 years though. In your case, depending on what the NJ tolling provision says, it may be possible to sue you even past the 6 year statute of limitations in NJ. Is that likely? Perhaps not. However, because you left NJ and went to PA, you should ask a NJ lawyer about the tolling provision to see if you leaving the state tolled the statute once y
Answered on Jun 17th, 2013 at 9:33 PM

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