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Old 06-06-2009, 02:06 AM
 
7 posts, read 73,636 times
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I voluntarily surrendered a vehicle back in June of 2003, can my wages be garnished if they try and take me to court? I surrendered the vehicle after a second layoff and could no longer make the payments. On one of the letters I received from them, they said the reposession date was December of 2003 which is incorrect. I voluntarily surrendered it in June of 2003. I don't remember the exact date but I know it was in June of 2003. How can I fight back if they try to sue? What information do I need to prove my case?
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Old 06-06-2009, 12:34 PM
 
Location: somewhere
3,667 posts, read 5,244,250 times
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Quote:
Originally Posted by sassyrc View Post
I voluntarily surrendered a vehicle back in June of 2003, can my wages be garnished if they try and take me to court? I surrendered the vehicle after a second layoff and could no longer make the payments. On one of the letters I received from them, they said the reposession date was December of 2003 which is incorrect. I voluntarily surrendered it in June of 2003. I don't remember the exact date but I know it was in June of 2003. How can I fight back if they try to sue? What information do I need to prove my case?

You might ask this question on the finances forum and get more help
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Old 06-06-2009, 06:54 PM
 
Location: physical: VA mental: ???
17 posts, read 134,040 times
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See New Mexico statute
Quote:
37-1-3. Notes; written instruments; judgments of courts not of record; period of limitation; computation of period.
A. Those founded upon any bond, promissory note, bill of exchange or other contract in writing, or upon any judgment of any court not of record, within six years.
Making partial payments or admitting in writing that you owe the debt might revive it, so be careful how you respond to a debt collector.

A third party debt collector attempting to collect a debt that is past the statute of limitations may be a violation of the federal Fair Debt Collection Practices Act, 15 U.S.C. Section 1692 et. seq., particularly:
Quote:
1692e. False or misleading representations
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section....
(2) The false representation of--
(A) the character, amount, or legal status of any debt...
(5) The threat to take any action that cannot legally be taken or that is not intended to be taken....
A debt collector found by a court to be violating the act is liable to you for any actual damages you sustain plus up to $1000 statutory damages, plus your costs and reasonable attorney's fees.

You can dispute the debt and the date from which the default happened (when you returned the car) by writing to the third-party debt collector and stating that the debt is beyond the statute of limitations. You can also ask that the debt collector stop contacting you, and they then have to stop calling or writing or it is also a violation of the Fair Debt Collection Practices Act, although they can still sue you over the debt. Send the letter certified mail/ return receipt and keep a copy for yourself.

Note that if you continued to make payments after you returned the car, the default, and hence the statute of limitations, might run from after you stopped making payments, not from when you returned the car.... You might want to contact an attorney who specializes in representing consumers in consumer matters. If you cannot afford an attorney, you should contact your local legal aid office.

Even if you do not have an attorney, if you get sued you must show up to court on the date stated on your summons. If you don't show up, judgment will be entered against you and you may lose your chance to put forward any defenses you have to the debt.
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Old 06-06-2009, 06:55 PM
 
Location: physical: VA mental: ???
17 posts, read 134,040 times
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In case my last post wasn't clear, the statute of limitations on a written contract in New Mexico is 6 years from default.
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Old 06-06-2009, 08:46 PM
 
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I would like to thank you for your insight, I'm so worried about this. I haven't had any contact with the agency since the repossession. I've worked very hard to recover from the damage of the layoffs and this could literally ruin my life. Is it best to ignore the collector and wait to see what happens? I don't want to reactive the status of the account. Is there anything I can do to prepare.....what kind of lawyer would I need to look for?
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Old 06-06-2009, 09:38 PM
 
Location: physical: VA mental: ???
17 posts, read 134,040 times
Reputation: 28
If you turned in the car in June 03, you might wait until the statute of limitations has run (so sometime after June 09) and then write to the debt collector. You don't want to remind them ahead of time that the statute of limitations is about to run. If you missed payments before you actually turned in the car, your default date might be earlier than June. You might wait for the statute of limitations to run first, then write the FDCPA letter.

Look for a lawyer who handles consumer issues on the consumer side. One place to look is the National Association of Consumer Advocates; they have a website, www.naca.net, that allows you to search for member attorneys by state and type of case.
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Old 08-05-2009, 01:08 AM
 
7 posts, read 73,636 times
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Default Statute of Limitations on a bad debt for repossessed vehicle

What date do you go by for the statute of limitations? If the debt originated in Texas does it go by the Texas statute of limitations or does it go by the state I reside in now? I have been handed a summons for a debt that is almost 6 years old.
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Old 08-05-2009, 12:12 PM
 
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You're being sued for a vehicle you no longer have? So if you're required to pay for it do you get it back the sameway you left it?

Do you not have any records of when you dropped it off? Also I think a lawyer could find said paperwork at the stealership.
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Old 08-05-2009, 05:05 PM
 
Location: Tampa, Florida
10,962 posts, read 9,816,346 times
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Zizzer gave some good general information, but unfortunately he used the wrong statute of limitations. When a vehicle is repossessed the original contract is voided, so the SOL for written contracts cannot be utilized.

The proper SOL for repo'd vehicles falls under the Uniform Commercial Code (UCC) SOL for "Goods and Services" which is 4 years from the date the vehicle was sold, creating the deficency. I imagine that they sold the vehicle in December of 2003 (which is probably what they're referring to in the letter) and as such, you were absolved of any legal obligation to repay this debt in December of 2007.

The only exception to this rule would be for Oklahoma residents. From my understanding, OK has adopted their own version of the UCC which provides for a 5 year SOL.

If you don't mind my asking, what brought this question on? Have they been calling you? Sending you letters? Are they threatening to sue you? If they're threatening to sue you, they're in violation of the FDCPA and can be sued for $1000 plus damages and legal fees.
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Old 08-05-2009, 05:54 PM
 
Location: 23.7 million to 162 million miles North of Venus
1,409 posts, read 1,904,383 times
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Quote:
Originally Posted by Bosco55David View Post
Zizzer gave some good general information, but unfortunately he used the wrong statute of limitations. When a vehicle is repossessed the original contract is voided, so the SOL for written contracts cannot be utilized.

The proper SOL for repo'd vehicles falls under the Uniform Commercial Code (UCC) SOL for "Goods and Services" which is 4 years from the date the vehicle was sold, creating the deficency. I imagine that they sold the vehicle in December of 2003 (which is probably what they're referring to in the letter) and as such, you were absolved of any legal obligation to repay this debt in December of 2007.

The only exception to this rule would be for Oklahoma residents. From my understanding, OK has adopted their own version of the UCC which provides for a 5 year SOL.

If you don't mind my asking, what brought this question on? Have they been calling you? Sending you letters? Are they threatening to sue you? If they're threatening to sue you, they're in violation of the FDCPA and can be sued for $1000 plus damages and legal fees.
Bosco is right on the nose with this.

Also, if the UCC ( 9.506) and your states RISA and MVISA statutes had not been followed, before and after the sale, then a deficiency can not be claimed.

You need to look at the paper they sent you and confirm that they claimed the repo happened in Dec. If that paper is not the deficiency notice, you need to find what they had sent to you for that. (it may be possible that if they waited until Dec to sell the vehicle, then it may not have been sold in a commercially reasonable manner)
If you have any paperwork proving it was actually repoed in June, when you turned the car in, you need to dig that up. You also need to look at the June paperwork to see if you had signed your rights away when turning the car in.

Order the Car Fax report on the car, you will need to compare the info being reported on that to the deficiency notice, and your credit reports. ALL of the figures should match.
Order hard copies of your credit reports from each CRA, have them mailed to you. (do not use online reports or reports from tri-merge services)
Call the court clerk and ask if anything had been filed in your name, to make sure it's a real suit.

As for the SOL, as Bosco already stated, it would be 4 years under the UCC whether you are in TX or in NM. And, it starts on the date he already mentioned. The repo is past SOL !!!!!!!!!!!

IF it is a true summons then you need to answer it within the time allowed and you need to include an Affirmative Defense of SOL.

UCC Article 2.
2-725(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. (use this in your Affirmative Defense)

Caselaw that places a repo in the 4 year UCC:
Ford Motor Credit Company v. Gilberto Arce (cite this caselaw in your Affirmative Defense)
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