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Credit card companies have been doing this for years and years. They actually harass relatives of debtors.
Apparently the government is trying to reduce the deficit by going after deadbeats. Are you against this? Do you think the government should give amnesty to debtors?
Can you explain why anyone should be held responsible for a debt incurred by their parents, cousins, aunt Gertrude, or their great aunt's pet dog, Bozo?
Are you also for convicting a murderer's cousin of homicide if the murderer dies?
And as far as "so and so has been doing this for years and years"... is that ever really justification? (read The Lottery for an object lesson)
I wonder if the FEDS are going to apply this policy to all the ranchers and mining companies that have been receiving Federal subsidies or simply not paying grazing fees of mining royalties for mining on Federal land. Now there is a place to collect millions in back debt.
IMHO, but maybe not legally, I am not responsible for my parents debts. Those debts died with them.
Easy; they have guns, and lots of them. So, they can do as they please.
They also have the power to imprison you if you don't follow their rules. Is the reverse true? Can we imprison them if they act in ways that harm us? Not so much.
Credit card companies have been doing this for years and years. They actually harass relatives of debtors.
No, they haven't, but thanks for confusing everyone just the same.
Quote:
Originally Posted by dreamofmonterey
The difference is, by law third party collections has to follow legal statute. If your grandpa died 5 years ago and some 8.00 an hr desk jockey/collector starts pursuing you by phone and mail, it is harassment, and illegal.
Credit card companies are bottom feeders. It doesn't mean they are in the right.
More disinfo and smear.
By you....but, hey at least you admitted you're the source....that's a step in the right direction.
Just so no one is misled and suffers, I'll try to sort this out.
Credit cards are uncollateralized debt which must be charged off at 180 days in accordance with federal banking regulations....the very same regulations which require banks to foreclose on collateralized debt such as houses and cars at 120 days.
What happens next is entirely dependent upon the card issuer's internal policies.
Some card issuers will hold the debt for 6 months, without any attempt to collect, and then sell the debt to junk debt buyers for pennies on the dollar.
Some card issuers will use "in-house" collections for a period of time, then hand the debt off to 3rd Party debt collectors, before ultimately selling the debt to junk debt buyers.
Some card issuers will hand the debt off to 3rd Party debt collectors, before ultimately selling the debt to junk debt buyers.
"Junk Debt Buyers" --- Asset Acceptance, NCO Financial, et al --- emerged after certain legal theories were developed concerning debt and the Fair Debt Collection Practices Act (hereinafter "FDCPA"). The theory was that a Junk Debt Buyer "stands in the shoes of the original creditor," and therefore is not a debt collector as defined in the FDCPA. Accordingly, it was believed that the FDCPA does not apply to Junk Debt Buyers, but federal courts have totally shot that down over the years.
A few helpful things to know:
1] Some -- but not all -- States have laws governing the conduct of creditors collecting debts. Ohio is one such State, and I mention this specifically, because the law is styled "Ohio Consumer Sales Protection Act." It applies to creditors and debt collectors and junk debt buyers, even though the name of the Act doesn't even hint at that.
2] Some -- but not all -- States have laws governing debt collections by all 3rd Parties including traditional debt collectors and junk debt buyers.
3] A federal law -- the FDCPA -- applies to all debt collectors, including junk debt buyers. There are certain specific sets of circumstances in which a creditor may be subject to the FDCPA --- it's not my job to explain every stinking single set of unique circumstances --- ask an attorney if in doubt.
Understanding the Statute of Limitations:
Such statutes -- which are dependent on the type of debt incurred -- vary from State to State. However, the Statute of Limitations does bar any form of legal action to collect debts. It does not bar attempts to collect debts per se.
Example: You have a credit card debt from 4 years and one month ago....the Statute of Limitations for your State happens to be 4 years (it varies from State-to-State), a debt collector may contact you to arrange payment.
Any collector who threatens any form of legal action (including arbitration) has violated the FDCPA, and your State laws as well (if your State has debt collection laws).
Under the FDCPA and State laws, it is illegal to ask anyone other than the true debtor to pay a debt, or in plain English, if your name is not on the document, you are not legally obligated.
Now, in some States, it is illegal to even think about collecting a debt that is beyond the Statute of Limitations. Why?
Understanding the Statute of Repose:
For some States, the Statute of Limitations is also a Statute of Repose. What that means is that when the Statute of Limitations expires, the debt expires with it and ceases to exist.
Example: I'm sharing a 4 bedroom with several other students so I have to waste money on Student Loans. I moved out, as did another at the end of the lease, but apparently there was some unpaid rent and confusion about who was on the lease, and I got the luck of the draw.
In Ohio, rentals are UCC, and UCC has a 4-year Statute of Limitations. Additionally, Ohio is a Statute of Repose State. So...come 2007, the Statute of Limitations for legal action to collect the debt has expired and what's more, the debt no longer exists. I got a letter from a debt collector in Dayton, Ohio, and my response was a tersely worded Pre-Trial Settlement Agreement.
Basically, you give me $6,000 cash, and I won't sue your ass in federal court for $6,000 in statutory damages for several dozen violations of the FDCPA ($1,000) and the Ohio Consumer Sales Protection Act ($5,000 at $200 in statutory damages for each violation).
I got a check for $1,800 from his attorney.
As a public service for Forum Members here on C-D:
Quote:
Originally Posted by Mircea
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.
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 limitationsad 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.” 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.” 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.”
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 Statute 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.
[blue indicates word correction from original]
Now....that only applies to consumer debt, which is not the same thing as government debt.
Government debt may be incurred at many different levels: federal, State, county or local/municipal.
Let's talk about hospitals.
There are three kinds of hospitals: private non-profit, private for-profit and public non-profit.
One can often identify a public non-profit hospital by its title when you see any of the following: Memorial, State, University, City, General, County etc.
Examples: Sarasota Memorial (operated by Sarasota County), University of Cincinnati Hospital (operated by the State of Ohio and formerly operated by the City of Cincinnati as Cincinnati General Hospital), Dearborn County Hospital (operated by Dearborn County Indiana), Pauline Warfield State Hospital and such.
Public non-profit hospitals are owned in whole, or in part by government at some level, either the State, the County or the City.
Sometimes they are jointly operated such as city-county, city-State, county-State or city-county-State.
Medical debts incurred at such facilities may or may not fall under the Statute of Limitations, and what's more, they may or may not be discharged in a bankruptcy.
This gets even more complicated, because States sometimes treat municipalities differently.
For example, in your State, your debts owed to the State may not be subject to the Statute of Limitations, but may be discharged in bankruptcy, while your State may treat municipalities --- which are corporations -- as corporations and statutes of limitations may apply and the debts may be discharged.
In other States, debts owed fall under statutes of limitations and may be discharged. You'll each have to examine your own unique situation.
Enough of that already.
Quote:
Originally Posted by ChrisC
Can you explain why anyone should be held responsible for a debt incurred by their parents, cousins, aunt Gertrude, or their great aunt's pet dog, Bozo?
Uh, "sins of the father?"
There are two birds in that tree?
Quote:
Originally Posted by ChrisC
And as far as "so and so has been doing this for years and years"... is that ever really justification? (read The Lottery for an object lesson)
No, it could never be a justification. In fact, that line of reasoning is a fallacy, so good for pointing it out.
Thanks for the info but I'll freely admit I don't have enough time in my day to look up who put in one line on a large bill.
Because I'm a believer in none of them being pure and innocent and there being plenty of blame for them all, you have to share some of it with Bush since he was the sitting president. No matter the reasons, he did sign it.
My point was leaning toward one may never know. Most of what is passed Joe citizen has no idea of who wrote it, anyway. NM the idea that bills are passed without fully knowing what is in them. Tucking something in a bill is a practice that shouldn't be happening. No statute of limitations also seems an absurd idea, NM the other issues going on here.
Credit cards are uncollateralized debt which must be charged off at 180 days in accordance with federal banking regulations....the very same regulations which require banks to foreclose on collateralized debt such as houses and cars at 120 days.
What happens next is entirely dependent upon the card issuer's internal policies.
Some card issuers will hold the debt for 6 months, without any attempt to collect, and then sell the debt to junk debt buyers for pennies on the dollar.
Some card issuers will use "in-house" collections for a period of time, then hand the debt off to 3rd Party debt collectors, before ultimately selling the debt to junk debt buyers.
Indebted....
Mircea
Good post. Not to get side-tracked on CC's, but seems important to bring up. There is difference between charge off and write off, also.
Credit Card Charge-Off vs. Credit Card Write-Off
quote:
At that point, the credit card company is required to reclassify the account for accounting purposes. Specifically, from a performing asset to a non-performing asset for the bank.
.....
A “write-off” on the other hand is when a creditorforgives a portion of the balance that is legitimately owed.
The Obama administration is hungry for cash…check out this mess. Someone, who won’t take personal responsibility of course, slipped a sucker punch into the farm bill lifting the 10-year statute of limitations on old debts to the government, permitting the IRS to use its coercive power to intimidate innocent people.
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The Obama Administration again? God you can't trust those folks for anything - especially things that do not do - yet get tagged for. It is congress who writes bills. It is congress who "slips anonymous amendments" into bills. It is congress who is mostly Republican.
LOL..it got into the Farm Bill 3 years ago.
Just hitting the press now ?
No one wants to step up and take credit either.
Social Security points to the Treasury.
The Treasury points to Congress.
Congress says the request came from the "bureaucracy".
These bills get written by invisible magic people.
No one knows who put them in there, no one knows they are even in there until a news story about them come out.
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