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Old 12-08-2011, 02:29 PM
 
1 posts, read 3,480 times
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The people at this company are very nasty individuals DO NOT let them bully you into some crap. They can't do anything but read this. If they were nicer maybe someone would want to go along with their SCAM because that is what it is. You bought the debt from AES so you pay it!!!!
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Old 12-08-2011, 03:06 PM
 
Location: puerto rico
14 posts, read 93,342 times
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well its been a couple of month now, and i havent heard from them.. i told them to contact me my mail and about the statue of limitation.. so ive might have gotten them of my back for now.. but ill need to check.. my credit report just in case..
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Old 12-09-2011, 10:23 AM
 
Location: Near the water
8,237 posts, read 13,451,675 times
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Quote:
Originally Posted by duster1979 View Post
This is true, but if you have a negative net worth - in other words, liabilities greater than assets - at the time of the writeoff, you don't have to claim it as income.
Have a question for you...
on this 1099-C issue, if someone is 1099-C'd for something that was repossessed in 2000 (and the IRS is applying this to 2009 tax return) is there not a statute on this time line? I have a friend who is having this happen and I don't know where to even begin to tell them where to research. TIA.
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Old 12-09-2011, 11:28 AM
 
Location: Ohio
24,624 posts, read 19,036,487 times
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Quote:
Originally Posted by Chromekitty View Post
Have a question for you...
on this 1099-C issue, if someone is 1099-C'd for something that was repossessed in 2000 (and the IRS is applying this to 2009 tax return) is there not a statute on this time line? I have a friend who is having this happen and I don't know where to even begin to tell them where to research. TIA.
It's imputed income. That's the legal definition.

Any time any debt is forgiven on a home, property, a car, a credit card, a charge card, a personal loan etc, the unpaid balance is imputed income. You must claim it as income and pay federal and State taxes on it. This is a shocker that hits a lot of people. They owe $150,000 on a mortgage, get foreclosed, the house sells for $50,000 at a sheriff's auction and they ultimately get a 1099 for $100,000, which usually sticks them in one of the upper tax brackets.

Unless they filed bankruptcy and discharged the debt.

Here, the statute of limitations would only apply to properly claiming the imputed income on a tax return. That would be from the date the financial institution or other party forgave the loan and issued the 1099.

When a financial institution charges off a collateralized loan at 120 days or an uncollateralized loan at 180 days (required by federal banking regulations) the institution can keep the debt on their books for an indefinite period of time.

There is some confusion between Statutes of Repose and Statutes of Limitations. Some States make a clear distinction, while in other States, the Statue of Limitations is also a Statute of Repose, and Ohio is a good example where the Statue of Limitations is also a Statute of Repose (and so any attempt to collect is automatically a violation of the FDCPA and 9 violations of the Ohio Consumer Sales Protection Act at $200 per violation for a total award of damages in the amount $2,800 to you plus court costs and attorney's fees.

States also define those terms differently by inverting the definitions, but generally:

1] A Statute of Limitations bars all legal action to collect a debt, but does not bar attempts to collect the debt outside of legal remedies (note that some States define this as a Statute of Repose).

2] A Statute of Repose annuls the debt, in addition to barring all legal action to collect (note that some States define that as a Statute of Limitations).

A financial institution will typically do one (or more) of several things:

1] Sell the debt

2] Turn the debt over to collections

3] Turn the debt over to collections, then later recall the debt and sell it

4] Sit on the debt

What the institution actually does will depend entirely on its internal policies.

So it comes down to this:

1] Did the institution issue the 1099 before or after the Statute of Limitations

2] Is the Statute of Limitations for that State also a Statute of Repose and if not, does the State have a separate Statute of Repose for debts

3] Is it within the 7 year IRS Statute of Limitations

If your friend lived in Ohio, an auto loan (like rental agreements for anything including apartments/homes) falls under UCC (Uniform Commercial Code) and the Statute of Limitations is 4 years, from the date of the last payment -- and that is separate and distinct from the date of the last payment that led to the default -- (although the financial institution will probably argue from the date of the auction). Since Ohio Statutes of Limitations are also Statutes of Repose, the debt would have been annulled and ceased exist at the end of the 4-year period, so a 1099 would have had to have been issued prior to that.

Even so, my guess is the IRS would argue it is imputed income and she should have claimed it as such in the tax year the vehicle was repossessed. I don't know much about tax law, so you'd have to ask someone else about that.
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Old 12-09-2011, 12:21 PM
 
Location: Near the water
8,237 posts, read 13,451,675 times
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Wow, Mircea...

Thank you so much! I am going to copy and paste the info to her in an email.
She lives in Pennsylvania and this will surely help her to start some research.

Again, thanks!
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Old 12-10-2011, 02:53 PM
 
Location: Ohio
24,624 posts, read 19,036,487 times
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I'm sorry I can't answer the question with respect to Pennsylvania.

For you and others who may be interested, I can tell you the following.

These States do NOT have a Statute of Repose:

Alaska
Florida
Iowa
Illinois
Maryland
Massachusetts

For these States, the issue is questionable. My suggestion would be to use it and let the court decide if you're representing yourself pro se (bring it to the attention of your attorney if you have legal representation):

Connecticut
Delaware

For Iowa use this citation:

"When, therefore, as appears on the face of the complaint before us, the check was delivered and accepted in the city where the drawee bank is situated, the reasonable time expired at the close of the next business day, as stated in Matlock v. Scheuerman, 17 L. R. A. (N. S.), 747, and note (51 Ore. 49; 93 P. 823). If beyond that the holder delays presentment for six years, the statute of limitations, considered as one of repose, stills any effort to enforce the liability of the drawer. The holder cannot thus keep the check indefinitely as a menace to the drawer in defiance of the law requiring presentation within a reasonable time and thus extend the statute of limitations ad libitum. Consequently presentment is mandatory, and cannot be dispensed with, so that, if more than six years have been allowed to lapse where all parties, including the drawee, are in the same city, no action can be maintained upon a presentment made after that time." 179 P. page 916, 4 A. L. R. pages 878, 880.

Dean v. Iowa Des Moines, Nat'l Bank & Trust Co,, SUPREME COURT OF IOWA, 227 Iowa 1239; 290 N.W. 664; 1940 Iowa Sup. LEXIS 207; 128 A.L.R. 137

Note that the Iowa Supreme Court cites the Oregon Supreme Court and Louisiana Supreme Court.

For Maine, it depends on whether or not this case was reviewed by the US Supreme Court and overturned. I seriously doubt that it was, given that the Main Supreme Court cited the US Supreme Court and the US Supreme Court is loathe to review its own cases or overturn its previous rulings.

I. Independent of any requirement of the statute regarding the new acknowledgment or promise, such acknowledgment or promise to be effective must have been intentional; "must have been deliberately made and not inadvertently, and it will not affect the bar of the statute where the accompanying facts and circumstances are such as to repel the inference, or leave in doubt the question whether the party intended thereby to prolong the period of legal limitation or to remove the bar already attached." We think the above quotation from 19 Am. & Eng. Ency. of Law, 294, states the law accurately and is supported by the cases cited. Thus it was said by the U.S. Supreme Court in Fort Scott v. Hickman, 112 U.S. 150 at 150-164, 28 L. Ed. 636, 5 S. Ct. 56: "Statutes of limitation are statutes of repose and not merely statutes of presumption of payment. Therefore, to deprive a debtor of the benefit of such a statute by an acknowledgment of indebtedness, there must be an acknowledgment to the creditor as to the particular claim, and it must be shown to have been intentional." Before our statute requiring the acknowledgment or promise to be in writing it was declared in Porter v. Hill, 4 Me. 41, that the promise must be absolute, and that the acknowledgment must be unambiguous. In Oakes v. Mitchell, 15 Me. 360, the words "an arrangement will soon be made to pay the note. I calculate to pay it, and I always calculated to pay it," were held not to necessarily constitute a new promise or acknowledgment as matter of law.

Davis v. Davis, SUPREME JUDICIAL COURT OF MAINE, 98 Me. 135; 56 A. 588; 1903 Me. LEXIS 75

Minnesota, pending review of the Statute:
Furthermore, the Shapley case, 42 N.Y. 443, has been generally disapproved. Tucker v. Owen (4 Cir.) 94 F. (2d) 49; Holman v. Omaha & C.B. Ry. & Bridge Co. 117 Iowa, 268, 90 N.W. 833, 62 L.R.A. 395, 94 A.S.R. 293, supra; Bridges v. Stephens, 132 Mo. 524, 34 S.W. 555. True, the Virginia court in Soble v. Herman, 175 Va. 489, 9 S.E. (2d) 459, did not follow Tucker v. Owen. In Sadler v. Marsden, 160 Va. 392, 168 S.E. 357, it did, however, announce adherence to the rule which was applied in that case.

Of course the statute of
limitations should be given full effect as a statute of repose, but that does not mean that, where the parties have agreed to extend the period or have waived its provisions or are estopped to assert the statute as a defense, full effect should not be given to the agreement, waiver, or estoppel.

Albachten v Bradley, No. 33,102., Supreme Court of Minnesota, 212 Minn. 359; 3 N.W.2d 783; 1942 Minn. LEXIS 630

The answer is a definitive yes for the following States:

Alabama 20 years (by Statute)

Arizona
Applicable Statute of Limitations
John W. Masury & Son v. Bisbee Lumber Company, Supreme Court of Arizona, 49 Ariz. 443; 68 P.2d 679; 1937 Ariz. LEXIS 255

Arkansas
Applicable Statute of Limitations
Kitchens v. Evans, Supreme Court of Arkansas, 45 Ark. App. 19; 870 S.W.2d 767; 1994 Ark. App. LEXIS 43

California
Applicable Statute of Limitations
Cortez v. Vogt 52 Cal. App. 4th 917; 60 Cal. Rptr. 2d 841; 1997 Cal. App. LEXIS 98; 97 Cal. Daily Op. Service 1003; 97 Daily Journal DAR 1409

Colorado
Applicable Statue of Limitations
Van Diest v. Towle, Supreme Court of Colorado, 116 Colo. 204; 179 P.2d 984; 1947 Colo. LEXIS 301; 171 A.L.R. 304

District of Columbia
“Statutes of limitation are statutes of repose; their purpose is to quiet stale controversies, the evidence as to which may be eroded by time.â€
Fox-Greenwald Sheet Metal Co., Inc. v. Markowitz Bros., Inc., 147 U.S. App. D.C. 14; 452 F.2d 1346; 1971 U.S. App. LEXIS 7658; 71-2 U.S. Tax Cas. (CCH) P9737; 28 A.F.T.R.2d (RIA) 5860

Georgia
“Statutes of limitation are considered as beneficial and resting on principles of a sound public policy, and as not to be evaded except by the methods provided therein; indeed, they are now termed statutes of repose, and are regarded as essential to the security of all men.â€
Bank of Jonesboro v. Carnes Supreme Court of Georgia 187 Ga. 795; 2 S.E.2d 495; 1939 Ga. LEXIS 768; 130 A.L.R. 1

Hawaii
“The statute of limitations is one of repose and in order to remove the bar of the statute it is necessary to show either an unconditional promise to pay the debt, or a clear and unqualified acknowledgment of the debt from which a promise to pay is to be implied, or a conditional promise to pay and the fulfillment of the condition.â€

First American Savings and Trust Company v. Low, Supreme Court of Hawaii, 23 Haw. 696; 1917 Haw. LEXIS 40

International S&L Ass'n v Wiig, Supreme Court of Hawaii, 82 Haw. 197; 921 P.2d 117; 1996 Haw. LEXIS 66, July 12, 1996, Decided, July 12, 1996, FILED

Indiana

Indiana courts have stated that statutes of limitations are statutes of repose. Short v. Texaco, Inc. (1980), 273 Ind. 518, 406 N.E.2d 625, probable jurisdiction noted, 450 U.S. 993, affirmed 454 U.S. 516, 102 S. Ct. 781, 70 L.Ed. 2d. 738; Kemper v. Warren Petroleum Corp. Inc. (1983), Ind.App., 451 N.E.2d 1115. This is true in that both the statute of limitations and the statute of repose operate to lay a claim to rest; however, as noted above, the statute of limitations procedurally bars a vested remedy while the statute of repose may bar a substantive right which may not yet have vested. Regardless, the purpose of each, meant to lay claims to rest, is similar even if the policies behind each are different.

As noted, the statute of limitations is meant to bar stale claims, whereas the statute of repose may bar a claim no matter how diligently pursued. The statute of repose appears to bar claims, not because of disappearance of evidence but because of the passage of a stated amount of time within which the legislature has, for public policy reasons, deemed it appropriate to bring the claim, regardless of when the claim accrues. Cf.
Sherfey, 213 Ind. at 508, 13 N.E.2d at 574 (statutes of limitation are founded on state policy and are regarded as statutes of repose; the Legislature, out of consideration for the public welfare, may fix periods within which actions may be brought, without making any exceptions whatever). In this manner, the statute of repose also advances the statute of limitations policies of the peace, welfare, convenience, necessity, and well-being of society. See Short, 406 N.E.2d at 629; Craven v. Craven (1913), 181 Ind. 553, 103 N.E. 333, reh. denied, (1914), 181 Ind. 553, 105 N.E. 41.

Kissel v. Rosenbaum, Court of Appeals of Indiana, First District, 579 N.E.2d 1322; 1991 Ind. App. LEXIS 170

Kansas

Statutes of limitation are statutes of repose, and, as such, are designed to secure the peace of society and to protect the individual from being prosecuted upon stale claims. ( Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051; Freeman v. Hill, 45 Kan. 435, 25 Pac. 870; and Schulte v. Westborough, Inc., 163 Kan. 111, 180 P. 2d 278.) In the Schulte case it is stated:

". . . There was a time when the defense of the statute of
limitations was by some courts regarded as technical and with disfavor. The modern tendency is to the contrary. Following a discussion of the historical development of the subject in 24 Am. Jur., Limitation of Actions, § 14, it is stated:

"'The modern tendency is, although there are some cases which contain statements to the contrary, to look with favor upon the defense. Statutes of
limitation are now considered as wise and beneficient in their purpose and tendency, they are looked upon as statutes of repose, and are held to be rules of property vital to the welfare of society. Such statutes are deemed to be in the interest of morals, serving to prevent perjuries, frauds, and mistakes, and to render people attentive to the early adjustment of demands, and prevent the disturbance of settlements which have been made but of which the proof may have been lost.'

"Most statements of text writers and judges are to the same effect. So likewise in this state statutes of
limitations are statutes of repose and as such have long been considered with favor. (Freeman v. Hill, 45 Kan. 435, 437, 25 Pac. 870; see, also, Dougherty v. Norlin, 147 Kan. 565, 569, 78 P. 2d 65.)" (p. 115.)

Rochester American Ins. Co. v. Cassell Truck Lines, Inc., Supreme Court of Kansas, 195 Kan. 51; 402 P.2d 782

Kentucky
It is true that we have written that statutes of limitations are statutes of repose and that it is against the public policy of this State for them to be extended by contract. Wright v. Gardner, 98 Ky. 454, 33 S. W. 622, 35 S. W. 1116, 17 Ky. Law Rep. 1345; Kentucky River Coal & Feed Co. v. McConkey, 271 Ky. 261, 111 S. W. 2d 418

Lyons v. Moise's Ex'r, [NO NUMBER IN ORIGINAL], Court of Appeals of Kentucky, 298 Ky. 858; 183 S.W.2d 493; 1944 Ky. LEXIS 936

Michigan

Plaintiff asserts that the alleged agreement that defendant relied on for defense was made in March of 1964, that the defense was first alleged in 1973, more than eight years later and that this contravenes MCLA 600.5807(8); MSA 27A.5807(8), which provides that the statute of limitation for actions to recover damages on sums due for breach of contract is six years.

The purpose of statutes of
limitation is to avoid stale claims; they are "designed to take away one's remedy because of his unreasonable negligence in the assertion of his rights", 20 Michigan Law & Practice, Statute of Limitations, § 1, p 543; they "ordinarily are regarded as statutes of repose which confer no right of action but are available only as defenses", 53 CJS, Limitation of Actions, § 1(b)(1), p 901. A statute of limitation cannot be invoked for the purpose of protecting or shielding anyone in the enjoyment of the fruits of fraud. Id. at 904. Whether plaintiff may enjoy the fruits of fraud if defendant's defenses are not allowed remains to be seen. Defendant should, however, have his chance to assert these defenses to avoid the unjust possibility that plaintiff may enjoy those fruits. Moreover, it is said in 53 CJS, supra, § 104, pp 1088-1089:

Madison Nat'l Bank v. Lipin, Docket No. 17820, Court of Appeals of Michigan, 57 Mich. App. 706; 226 N.W.2d 834; 1975 Mich. App. LEXIS 1652

Mississippi

The primary purpose of statutory time limitations is to compel the exercise the right of action within a reasonable time. These statutes are founded upon the general experience of society that valid claims will be promptly pursued and not allowed to remain neglected. . . Accordingly, the fact that a barred a claim is a just one or has the sanction of a moral obligation does not exempt it from the limitations period. These statutes of repose apply with full force to all claims and courts cannot refuse to give the statute effect because it seems to operate harshly in a given case."


O'Neal Steel, Inc. v. Millette, SUPREME COURT OF MISSISSIPPI, 797 So. 2d 869; 2001 Miss. LEXIS 31

Missouri

"The statute of limitations contained in this section is one of extinction and not of repose." The effect of this amendment on the holding in Welborn has been recognized. Stoddard v. Wilson Freight, Inc., 651 S.W.2d 152, 157 n.2 (Mo. App. 1983).

Ohio

MEEKISON v. GROSCHNER, 153 Ohio St. 301 (1950), 91 N.E.2d 680, Supreme Court of Ohio.Decided March 29, 1950.

Statutes of limitation are statutes of repose and when they are not applicable it is not unjust that a person who has received full and complete consideration for the making of a contract should be compelled to execute her part of it.

Kossuth, Appelle v. Bear, Appellant, No. 22757 Court of Appeals of Ohio. Decided June 1, 1953.

Statutes of limitation are a very necessary part of the law of our times. Their universal adoption in every state of the Union bespeaks their importance. As was said by this court in Commonwealth Loan Co. v. Firestine, 72 N.E.2d 912 (affirmed 148 Ohio St. 133, 73 N.E.2d 501, supra):

"`Statutes of limitation are statutes of repose and are
designed to secure the peace of society.' 25
Ohio Jurisprudence,
422.


"Their object is to require vigilance in litigating claimed rights and to provide against fraudulent claims being asserted after the passing of time would make such claim difficult to defend."

As far as your friend is concerned, I would be inclined to use the US Supreme Court:

Thus it was said by the U.S. Supreme Court in Fort Scott v. Hickman, 112 U.S. 150 at 150-164, 28 L. Ed. 636, 5 S. Ct. 56: "Statutes of limitation are statutes of repose and not merely statutes of presumption of payment. Therefore, to deprive a debtor of the benefit of such a statute by an acknowledgment of indebtedness, there must be an acknowledgment to the creditor as to the particular claim, and it must be shown to have been intentional.

As always, for a Defense to be valid, it is necessary to claim the Defense in your initial Pleading. The Statute of Limitations, Statute of Repose and several others (like the debt having been discharged in bankruptcy or under a Stay of Execution from a bankruptcy filing) are Absolute Defenses and must be so stated:

First Absolute Defense
Plaintiff's claims, and each cause therein are barred by the Statute of Limitation.

Second Absolute Defense
Plaintiff's claims, and each cause therein are barred by the State of Repose.

First Affirmative Defense
Plaintiff's Complaint, and each cause of action therein; fails to state facts sufficient to constitute a cause of action against Defendant for which relief can be granted.

Second Affirmative Defense
Plaintiff is not authorized or licensed to collect claims for others in this State, solicit the right to collect or receive payment of a claim of another.

Third Affirmative Defense
Plaintiff failed to be provide Notice of Private Sale by Plaintiff and thus is barred thee provisions of [state the Statute(s) that govern the sale of debts or other negotiable instruments if your state has such laws -- and many do]

etc, etc, etc

Hope that helps.
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Old 12-11-2011, 10:17 AM
 
10,135 posts, read 27,348,070 times
Reputation: 8398
Quote:
Originally Posted by Chromekitty View Post
Have a question for you...
on this 1099-C issue, if someone is 1099-C'd for something that was repossessed in 2000 (and the IRS is applying this to 2009 tax return) is there not a statute on this time line? I have a friend who is having this happen and I don't know where to even begin to tell them where to research. TIA.

Section 108 requires reporting and inclusion of income in the year in which the debt is forgiven. If the debt is not forgiven, then it is not taxable under Section 108. However, a 1099 issued by a lender is prima facie evidence of forgiveness of indebtedness and must be overcome by evidence. the best approach is to include the income on a schedule in the tax return and then zero it out by showing the the debt was not forgiven or that it was forgiven in a different year. If it was forgiven in a year no longer open to adjustment under IRS rules (typically either 3 or 4 (more than 25% of gross income) years after the due date for the return of proper inclusion then will escape taxation.

Remember that the insolvency exception to Section 108 trumps all so if a person is balance sheet insolvent (assets less than liabilities) after the forgiveness it is not taxable. Again, attach a schedule to the return showing the 1099 and amount and a list of assets and liabilities after the forgiveness and it will not be taxed.
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Old 02-18-2012, 03:52 PM
 
1 posts, read 3,152 times
Reputation: 10
Okay, so they sent me a letter stating that they are going to garnish my wages in a few weeks. I have done my financial planning of my monthly income and figure I can pay a little over $200 per month. I do have a child in college that I'm completely responsible for and if they garnish my wages, they will screw me up. I work with a VERY small agency and I don't need this hassle. I know some of my rights - I told them in writing that I would only deal in writing and demanded that they provide all the 3rd party communications that they have had (they had started calling the CEO of my agency) and I couldn't believe it, they send me a notice of possible garnishment. It doesn't look legal, to be honest, just that it appears that it's an Order of Garnishment. It isn't. So that was their way of providing everything in writing. I don't even want to call them. Can I just go ahead and start making payments as directed on the website of the US Department of Education and send them my financial information, etc. I would like to send copies of this information to DCS as well. They are hateful and have even tormented my mother with Alzheimers and Dementia. Nice, huh? I know I owe this money (student loans) but my ex stole the money that I had for paying back the money (seriously, he did) and then for the last 10 years, I've raised our two children without a dime and now have my daughter in college. I've paid for everything. I've improved my credit so that I could qualify and plan on starting my own business. I'm sick of their **** and am going to start paying. I tried to in September but they won't take calls and inquiries from you directly, they want to be the ones harassing you and embarrassing you where you work and where you live. Any ideas/advice? Thanks!

Margaret
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Old 04-20-2012, 11:50 PM
 
14 posts, read 37,844 times
Reputation: 24
Collection agencies don't own the student loan contracts. If you have no money, don't even talk to them and don't give any information. Send a cease and desist letter right away to any collection agency that contacts you and they'll send your account back to the dept of education.

The fair debt collection act gives you the right to turn away collection agencies that do not own your debt. There are many sample cease and desist letters on the web. Now if they learn where you work and bank, they'll tell the dept of education who will then go after your money.

The feds don't have to sue you. They will most likely bounce your account around occasionally and take your tax refund. If your circumstances are dire then limit your refund by increasing your exemptions at work. The debt won't just go away though. If you're ever able to have a percentage of the money on hand, you should start asking the next collection agency to give you a favorable settlement in full and in writing or else tell them they will get a cease and desist letter. Always say you're broke and have a lot of other bills. Don't ever consider agreeing to a payment plan with a collection agency. They're just biding time until they can seize your wages or accounts.

Collection agencies are not that powerful and only stay in business because most people don't know their rights.
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Old 05-28-2012, 12:09 PM
 
1 posts, read 2,658 times
Reputation: 10
Quote:
Originally Posted by Hunter Wold View Post
Have you had to deal with this company and what was the outcome?

They are very NASTY...but if you know your rights they "must" back off.

A lot of folks today are faceing very deep financial troubles and this is only compounded by debts being turned over to "Credit collection nightmares"...and their ruthless "ways" to collect money.

Most of the collectors get a "chunk" of the collection fees as "commissions"..

If you have had to deal with DCS let me know by PM.

HW

I am dealing with them as we speak and was suppose to send a check today till my mom found this about them on here. Don't know what to do now and don't know what my rights are. If this debt is real they are pinning on me I can't get any proof from anyone including the original debtor. Plus this would have been from over 11 years ago.
Have any suggestions?

Klos2eden
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