Statute of Limitations

[David Merrill]

A fellow showed me a seemingly slam dunk small claims win. A debt collector sent a letter to his boss by levy on his wages. The letter was dated exactly six years following the note (student loan).

It would seem that the attorners for the "lender" are operating somehow on the assumption that now the statute of limitations is up (in that state it is six years), anything goes?

It seems that they would have started this levy long before the statute of limitations expired; not on the eve of it expiring?


Regards,

David Merrill.

[trooper2ls]

Either the debt collectors are smoking the ganga or dropping lsd ... but I would think that it is a clear cut go away letter. They must be fishing figuring the average sheeple would just roll over and accept..

I occasionally get nasty letters sent to my house that are for the son of the previous owner.. who has been dead (cancer) for over 5 years now. The debt portfolio buyers are fishing.. every once in a while they will get a bite.

Here are a few cites I found on the subject of limitations statutes.


If there is delay in sending notice of seizure to owner or holder of rights to property levied upon, statute of limitations for collection of tax after assessment will continue to run, rendering tax ultimately uncollectible. In re Dunne Trucking Co., 32 B.R. 182 (Bkrtcy. Iowa 1983).

Generally, the statute of limitations begins to run when an offense is completed. Toussie v. United States, 397 U.S. 112, 115 (1970)

For damage suits there is a “statute of limitations” which sets a deadline for how long you can wait, after the events occurred, before you start your suit. If your time runs out your case is “time-barred,” which means you will not be able to bring it. To meet a statute of limitations, you need to file your suit before the deadline. Owens v. Okure, 488 U.S. 235, 236 (1989).

[Shoonra]

I am unaware of which state this is. In my experience, the usual statute of limitations on contracts, which includes debts, is seven years, so this debt collector is evidently within the deadline and can still file a lawsuit.

I would think a levy would require a court judgment, in which case the judgment was obtained before the letter was sent, so it was done within six years.

[trooper2ls]

Shoonra is correct on this one... SoL varies from state to state with different things. Here in New York it is 6 for contract disputes and collection of debt, but with others it may be different.

Also, good point about levy requiring court judgement first. Else my original assumption that the DC is hallucinating or something.. you just never know.

..J

[David Merrill]

Originally Posted by Shoonra

I am unaware of which state this is. In my experience, the usual statute of limitations on contracts, which includes debts, is seven years, so this debt collector is evidently within the deadline and can still file a lawsuit.

I would think a levy would require a court judgment, in which case the judgment was obtained before the letter was sent, so it was done within six years.

Maybe I just don't trust you Shoonra. But I admit, you almost made me blink:

http://www.bcsalliance.com/y_debt_sol.html

It is one of the many states that has a statute of limitations of six years. Very few if any are seven years.


Regards,

David Merrill.

[robhalford88]

Be wary of relying on the limitation running out.
You can write a reservation of right to litigate and gain another 6 or 7 years, if done within the time limit.

[Friendsplacect]

I thought Student Loans especially Federal Student loans didnt have a SOL

20 USC sec 1091 a removes statute of limitations for collection of federally insured student loans.

I recall hearing two attorneys discussing their schooling and one chastised the other for not paying off his student loans with credit cards and then defaulting. What a great way to start off your new honest profession.

[David Merrill]

What really just happened is that I prompted some valuable information out of Shoonra. Thank you Shoonra.

It came in the form of a lie but it was the other paragraph, about the letter of levy depending on a judgment that mattered. I think this suitor will be getting triple indemnity by way of settlement without even going to court.


Regards,

David Merrill.

[Shuftin]

THIS MAY HELP

http://www.fair-debt-collection.com/...-State.html#11

[quasimodo]

Originally Posted by David Merrill

A debt collector sent a letter to his boss by levy on his wages.

TITLE 15> CHAPTER 41> SUBCHAPTER V> Sec. 1692c. Communication in connection with debt collection

(a) Communication with the consumer generally

Without the prior consent of the consumer given directly to the debt
collector or the express permission of a court of competent
jurisdiction, a debt collector may not communicate with a consumer in
connection with the collection of any debt--
(3) at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication.

Originally Posted by David Merrill

It would seem that the attorners for the "lender"

Is the lender(sic) the holder in due course pursuant to UCC § 3-302. HOLDER IN DUE COURSE?

(a) Subject to subsection (c) and Section 3-106(d), "holder in due course" means the holder of an instrument if:

(1) the instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and
(2) the holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any claim to the instrument described in Section 3-306, and (vi) without notice that any party has a defense or claim in recoupment described in Section 3-305(a).

Originally Posted by David Merrill

It seems that they would have started this levy long before the statute of limitations expired; not on the eve of it expiring?

They do not act until the last moment hoping the supposed debtor will react by tender of payment thus restarting the clock on the statute of limitations.
This is common practice.
Q