U.S. CitiesCity-Data Forum Index
Covid-19 Information Page
Go Back   City-Data Forum > General Forums > Economics
 [Register]
Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
View detailed profile (Advanced) or search
site with Google Custom Search

Search Forums  (Advanced)
Reply Start New Thread
 
Old 07-17-2008, 03:03 PM
 
6 posts, read 43,008 times
Reputation: 14

Advertisements

Hello! Newbie here....please be kind.

I am hoping someone can assist me with some advice....in 1998 I got a Discover credit card & then went thru a divorce becoming unable to pay on it. It charged off in Dec 1999 & honestly with everything that has gone on in my life over the last 8 years I forgot about it. Well March 13, 2008 I got my paycheck but it was short so I researched it & found there was a garnishment attached. I checked the DuPage County Circuit Court website to no avail so I went to the Cook County website & there it was....some attorney's office on behalf of HBLC, Inc. started going to court 3/7/07 & was able to obtain a judgement & a court approved garnishment. I have never been served at my home nor thru work. I requested a copy of anything received from my HR department which I received & forwarded to my attorney. Here are my questions.....
#1 in IL isnt the statute of limitations on credit cards 5 years?
#2 how could they do this if they never served me with paperwork?
#3 do i have a leg to stand on in fighting this? (My attorney says he is going to get a copy of the original summons & upon seeing that I was never served he will go to court to get it vacated)
#4 will I get any monies back from this attorney's office?

Thank you for your time & I look forward to reading any responses given.
Reply With Quote Quick reply to this message

 
Old 07-17-2008, 03:12 PM
 
26,661 posts, read 40,585,083 times
Reputation: 14755
I will be kind but I have to say..why are you spending money on a lawyer (of course the lawyer will take your case and money) for money you admit you never paid and should have paid.
IMo you should call the company and try to settle with them to make monthly payments so you can pay it off and it will be sooner off your credit report than by waiting and still having to pay it. Don't we have to pay what we spend, even if times are worse, if you spend it you have to pay sooner or later. I hope there will be a good solution for both parties.
Reply With Quote Quick reply to this message
 
Old 07-17-2008, 03:42 PM
 
Location: Indiana
562 posts, read 2,184,139 times
Reputation: 499
Thumbs down Discover Sucks!

Millea,I too went through a divorce with credit issues in 96 and my ex admitted to doing most of the overspending while I was having his babies and took responsibility in the settlement agreement. With a my 2 little ones, I could not afford to pay and Discover did not recognize my divorce contract and the amount showed on my credit report. My mom agreed to help me out and we called to settle for 1/2 the amount,signed paperwork and all.
My debt was supposed to be cleared.
Well guess what? When my new husband and I went to buy a new house, my credit still showed the balance due. My moms money and the trouble to settle were in vain. Now, with the passage of time, the debt is finally off my report( my ex filed bankruptcy after the divorce was final) .I recently checked my credit score and it was lowered due to MONTHLY credit checks from who?? DISCOVER! Turns out they were "just inquiring" about both mine and my current husbands' credit, as they told me when I called to ask why. They send us both applications all the time, which I throw in the trash.

Sorry, long story, but when I told my aunt,a Suze Orman fan, she told of a co-worker whose wallet was stolen- only Discover refused to cover her loss.

And guess which card the thief charged the most on-DISCOVER!

when I went online to get this phone number to call them I dicovered a whole website devoted to them- discoversucks.com

Good luck darling, but proceed with caution,a settlement for less may be a waste of time and money. They are not a trustworthy company and will never get my business now that I can afford to be a good customer.
Reply With Quote Quick reply to this message
 
Old 07-18-2008, 01:59 AM
 
Location: Ohio
21,260 posts, read 15,046,345 times
Reputation: 17671
Quote:
Originally Posted by millea View Post
Hello! Newbie here....please be kind.
Why?

Quote:
Originally Posted by millea View Post
It charged off in Dec 1999
How do you know this? Can you prove it? I ask because your strategy depends on it.

Quote:
Originally Posted by millea View Post
Well March 13, 2008 I got my paycheck but it was short so I researched it & found there was a garnishment attached. I checked the DuPage County Circuit Court website to no avail so I went to the Cook County website & there it was....some attorney's office on behalf of HBLC, Inc.
You did all that? Okay, since you have common sense, I'll be nice.

Quote:
Originally Posted by millea View Post
started going to court 3/7/07 & was able to obtain a judgement & a court approved garnishment. I have never been served at my home nor thru work. I requested a copy of anything received from my HR department which I received & forwarded to my attorney. Here are my questions.....
Hold that thought, we'll come back to it. I'll answer your questions first.

Quote:
Originally Posted by millea View Post
#1 in IL isnt the statute of limitations on credit cards 5 years?
Maybe. Try to follow this as best you can.

The precedent setting case is Harris Trust and Savings Bank v McCray 21 Ill. App. 3d 605 (1974).

The court ruled by making a distinction between charge cards and credit cards. A charge card has a two-way relationship between you and the account issuer. An example of a charge card would be a JC Penny Card, a Sears Card, or any number of "gas cards" or any cards that DO NOT have a VISA or MasterCard logo on them.

The court claims a credit card is a three-way relationship between you, the merchant, and the bank, and that you're actually receiving a loan from the bank and that it is a written account and therefore the statute of limitations is 10 years.

Now, that does contradict the Illinois Uniform Commercial Code at 810 ILCS 5/9-101) Sec. 9-101 which specifically defines a "written instrument" as

Quote:
(47) "Instrument" means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease, and is of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignment.
It also makes the following exemptions:

Quote:
The term does not include (i) investment property, (ii) letters of credit, (iii) nonnegotiable certificates of deposit, (iv) uncertificated certificates of deposit, (v) nontransferrable certificates of deposit, or (vi) writings that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card.
Note that sub-paragraph (vi) applies to you.

Now here is the problem and the mistake that everyone makes. Most junk debt buyers and attorney collection firms will sue you on an Account Stated.

If you read a copy of the complaint against you, it probably lists two or three legal theories of recovery, one being Account Stated, the second being "unjust enrichment" and a third about non-payment on account of some type.

You want to find these cases:

1) 53 Ill App.3d 935,940 (1st dist.1980)

2) 97 Ill.App.3d 327,330 (1st dist)

3) 207 ILL.App.3d at 673


Quote:
Originally Posted by millea View Post
#2 how could they do this if they never served me with paperwork?
It's very common for junk debt buyers and attorney collection firms to know exactly where you live, but to send the summons and complaint to a previous address knowing full well that you don't live there and cannot respond to the summons and complaint, which allows them to file for a default judgment and win.

Quote:
Originally Posted by millea View Post
#3 do i have a leg to stand on in fighting this? (My attorney says he is going to get a copy of the original summons & upon seeing that I was never served he will go to court to get it vacated)
Attorneys suck and are usually incompetent in matters related to the Fair Debt Collection Practices Act, but from what you've said, it sounds encouraging.

You need to get copies of your credit reports from TransUnion, Equifax and Experian. Listen to me now and hear me next Thursday, DO NOT use the internet. Write the letter (you can use your computer if you want), put it in an envelope, stick a damn stamp on it and mail it to them with a US Postal Service Money Order to pay for the fee. You'll get your copies within 30 days.

The reason you're doing that is to have hard evidence from the inquiries on your credit reports. The inquiries show who's been reading your credit report. If the attorney that sued you or the junk debt buyer he represents looked at your credit report, and on the date that they did, if your credit report showed your current address, then you can prove they intentionally served you at the wrong address to circumvent the legal process and get a default judgment.

Ignore what your attorney might say, and file a complaint with both your county bar association and your state bar association and get that SOB disbarred for committing an unethical act. In credit repair, the name of the game is leverage, and an unethical act is leverage to get this thing to disappear out of your life forever.

Your attorney is moving to vacate the default judgment and that is good, but I would caution you that many judges will refuse to vacate on the grounds that the plaintiff would have won anyway. So when your attorney files the motion to vacate, he needs to clearly illustrate that you had an absolute defense under the statute of limitations.

My files are currently FUBAR's so I don't have the proper citations, but the three cases I listed before are your best arguments in support of a 5 year statute of limitations. Your attorney should know that, but don't assume anything. You go find those cases and make sure your attorney has them.

Quote:
Originally Posted by millea View Post
#4 will I get any monies back from this attorney's office?
If you win under the Fair Debt Collection Practices Act, the SOB attorney or junk debt buyer will have to pay "reasonable fees" to your attorney, and basically, excluding novel question of law, his time is covered, so you pay nothing, plus can pick up $1,000 in statutory damages (and make the debt disappear).
Reply With Quote Quick reply to this message
 
Old 07-18-2008, 03:45 AM
 
26,661 posts, read 40,585,083 times
Reputation: 14755
Wow, this sounds like you know what you are talking about. I'm not a lawyer but this might be the best advise the OP could have gotten.
Reply With Quote Quick reply to this message
 
Old 07-18-2008, 07:47 AM
 
6 posts, read 43,008 times
Reputation: 14
Quote:
bentlebee...why are you spending money on a lawyer.....
Really I am not spending money on a lawyer...he has been our family lawyer for 15 years & he doesnt charge me an outrageous amount of money. I had to give him $200 to do this...I assume because he thinks we will get the money from the other party.

Last edited by millea; 07-18-2008 at 08:00 AM..
Reply With Quote Quick reply to this message
 
Old 07-18-2008, 10:05 AM
 
6 posts, read 43,008 times
Reputation: 14
Quote:
How do you know this? Can you prove it? I ask because your strategy depends on it.
I only know because that is what the attorneys paralegal told me when I called to inquire about this. I made NO arrangements with her as I assumed that since there was a garnishment happening there was nothing I could do.


Quote:
You did all that? Okay, since you have common sense, I'll be nice.
Yes I did...I am a skiptracer by "trade" so I do have some background in where to look for certain info. Thank you for the compliment!



Quote:
The precedent setting case is Harris Trust and Savings Bank v McCray 21 Ill. App. 3d 605 (1974).

The court ruled by making a distinction between charge cards and credit cards. A charge card has a two-way relationship between you and the account issuer. An example of a charge card would be a JC Penny Card, a Sears Card, or any number of "gas cards" or any cards that DO NOT have a VISA or MasterCard logo on them.

The court claims a credit card is a three-way relationship between you, the merchant, and the bank, and that you're actually receiving a loan from the bank and that it is a written account and therefore the statute of limitations is 10 years.

Now, that does contradict the Illinois Uniform Commercial Code at 810 ILCS 5/9-101) Sec. 9-101 which specifically defines a "written instrument" as

It also makes the following exemptions:

Note that sub-paragraph (vi) applies to you.

Now here is the problem and the mistake that everyone makes. Most junk debt buyers and attorney collection firms will sue you on an Account Stated.

If you read a copy of the complaint against you, it probably lists two or three legal theories of recovery, one being Account Stated, the second being "unjust enrichment" and a third about non-payment on account of some type.

You want to find these cases:

1) 53 Ill App.3d 935,940 (1st dist.1980)

2) 97 Ill.App.3d 327,330 (1st dist)

3) 207 ILL.App.3d at 673
Where can I find this information? I am sure you will tell me on the internet but I would greatly appreciate it if you could tell me where....



Quote:
It's very common for junk debt buyers and attorney collection firms to know exactly where you live, but to send the summons and complaint to a previous address knowing full well that you don't live there and cannot respond to the summons and complaint, which allows them to file for a default judgment and win.
I have to believe that this is EXACTLY what they did because I have moved twice since then & I have a vehicle loan that I did not get until 2006 at my current address.


Quote:
Attorneys suck and are usually incompetent in matters related to the Fair Debt Collection Practices Act, but from what you've said, it sounds encouraging.
He is an ok guy, my attorney, its just a matter of staying on top of him or I will get lost in the shuffle.


Quote:
You need to get copies of your credit reports from TransUnion, Equifax and Experian. Listen to me now and hear me next Thursday, DO NOT use the internet. Write the letter (you can use your computer if you want), put it in an envelope, stick a damn stamp on it and mail it to them with a US Postal Service Money Order to pay for the fee. You'll get your copies within 30 days.

I HEAR you! Is there a reason you advise against getting your cbrs off the internet? I am not going to go against your advice, just wondered.
Reply With Quote Quick reply to this message
 
Old 07-18-2008, 10:36 AM
 
Location: Londonderry, NH
41,478 posts, read 52,752,585 times
Reputation: 24677
IRRC - A postal stamp cancellation validates the date and time you sent the letter. I doubt that e-mail has that validity.
Reply With Quote Quick reply to this message
 
Old 07-18-2008, 10:47 AM
 
6 posts, read 43,008 times
Reputation: 14
Quote:
The reason you're doing that is to have hard evidence from the inquiries on your credit reports. The inquiries show who's been reading your credit report. If the attorney that sued you or the junk debt buyer he represents looked at your credit report, and on the date that they did, if your credit report showed your current address, then you can prove they intentionally served you at the wrong address to circumvent the legal process and get a default judgment.
This is such sound information...I wish I could get my cbrs right this minute!


Quote:
Ignore what your attorney might say, and file a complaint with both your county bar association and your state bar association and get that SOB disbarred for committing an unethical act. In credit repair, the name of the game is leverage, and an unethical act is leverage to get this thing to disappear out of your life forever.
What he doesn't know will not hurt him....bad attorneys give good attorneys a bad name!!!

Quote:
Your attorney is moving to vacate the default judgment and that is good, but I would caution you that many judges will refuse to vacate on the grounds that the plaintiff would have won anyway. So when your attorney files the motion to vacate, he needs to clearly illustrate that you had an absolute defense under the statute of limitations.
Again, very sound information! I will make sure that he knows to make sure the statue was VERY expired when they pulled this.


Quote:
If you win under the Fair Debt Collection Practices Act, the SOB attorney or junk debt buyer will have to pay "reasonable fees" to your attorney, and basically, excluding novel question of law, his time is covered, so you pay nothing, plus can pick up $1,000 in statutory damages (and make the debt disappear)
I have been a collector & never realized that even sending a letter after the statute is expired could get them into trouble...wish I would have known this before. Do you know how we go about filing for violation of FDCPA? Is that with Cook County Courts or someone else?

**THANK YOU ALL FOR THIS INFORMATION! I WILL DEFINITELY BE PUTTING IT TO GOOD USE & WILL LET YOU KNOW WHAT HAPPENS!**
Reply With Quote Quick reply to this message
 
Old 07-18-2008, 11:32 AM
 
Location: Ohio
21,260 posts, read 15,046,345 times
Reputation: 17671
Quote:
Originally Posted by millea View Post
I have been a collector & never realized that even sending a letter after the statute is expired could get them into trouble..
The case law is quite clear and numerous appellate courts (including the heinous Federal 7th Circuit) have ruled so. It violates Section e(5), taking an action that cannot be legally taken, and also e(2) using fraudulent means to collect a debt.

In some states, such as Ohio, the statute of limitations is also a statute of repose, so the debt is extinguished, meaning the debt ceases to exist, but to my knowledge, that is not the situation in Illinois.

Quote:
Originally Posted by millea View Post
.wish I would have known this before. Do you know how we go about filing for violation of FDCPA? Is that with Cook County Courts or someone else?
Any "court of competent jurisdiction" meaning any state or federal court.
Reply With Quote Quick reply to this message
Please register to post and access all features of our very popular forum. It is free and quick. Over $68,000 in prizes has already been given out to active posters on our forum. Additional giveaways are planned.

Detailed information about all U.S. cities, counties, and zip codes on our site: City-data.com.


Reply
Please update this thread with any new information or opinions. This open thread is still read by thousands of people, so we encourage all additional points of view.

Quick Reply
Message:


Over $104,000 in prizes was already given out to active posters on our forum and additional giveaways are planned!

Go Back   City-Data Forum > General Forums > Economics
Similar Threads
Follow City-Data.com founder on our Forum or

All times are GMT -6.

© 2005-2020, Advameg, Inc. · Please obey Forum Rules · Terms of Use and Privacy Policy · Bug Bounty

City-Data.com - Archive 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 - Top