Debt Collectors Who Sue You After The Statute Of Limitations Expires Violate The FDCPA


HAVE YOU BEEN SUED BY A DEBT COLLECTOR (DEBT BUYER) AND WONDER WHAT THE STATUTE OF LIMITATIONS CAN DO FOR YOU?

Learn about your five options when sued by a debt buyer as you need to discover what you should do next.

Being sued not a pleasant experience, particularly if the debt is so old that you cannot remember the details of it. The law recognizes this and requires that suits be brought within a certain time period – the statute of limitations – and if the suit against you is filed after the statute of limitations has expired several things should happen.

First, you should be successful in the collection suit as the case should end in victory for you.

Second, if the debt collector knew or should have known that the suit was “time-barred” – that is outside the statute of limitations – then the act of filing the suit is a violation of the Fair Debt Collection Practices Act (FDCPA), the federal law that governs collectors.  This can entitle you to money damages.

So you may not only be able to beat the collection lawsuit filed by the debt buyer (LVNV, Midland, Portfolio Recovery, etc) — but you may also be able to sue for money damages if the FDCPA was violated as it often is by these debt buyers.

 

WHAT IS THE STATUTE OF LIMITATIONS IN ALABAMA?

This is a matter of much controversy but there are three basic ideas.

1. The Alabama statute of limitations for credit cards and similar debts is three years which is an “open account” as there was no payment schedule with your credit card — you just charge on it and then make at least the minimum payment.

2. The statute is six years under a stated account (or account stated) theory. This is what the debt collectors argue applies when they buy an old credit card debt. We disagree.

3. Finally, the laws of the state that control the credit card agreement may give us the statute of limitations. For example, if you have a Capital One card, the laws of Virginia normally will give us the statute of limitations.  Often the card is so old that no one knows what the terms were and if they were ever modified so normally we use the laws of Alabama to give us the statute of limitations.

 

IF I THINK THE STATUTE OF LIMITATIONS HAS EXPIRED WHAT DO I NEED TO DO IN THE COLLECTION LAWSUIT?

Make sure you respond to the complaint! Sometimes this is done as an “Answer” and sometimes as a “Motion To Dismiss”. But whichever approach is most appropriate, just make sure you do respond so there is no default judgment. You should tell the court in your response that the statute of limitations has expired on this case.

 

CAN I SUE THE COLLECTOR FOR SUING ME WHEN THE STATUTE OF LIMITATIONS HAS EXPIRED?

Usually.

The FDCPA says that if a collector sues you after the statute of limitations has expired and the collector knew it or should have known it, this violates the law. Depending on the circumstances, suing you after the statute of limitations has expired may also violate various Alabama laws which give you the possibility of punitive damages which is something the FDCPA does not give.

 

SHOULD I FILE A COUNTERCLAIM OR FILE A SEPERATE LAWSUIT IN FEDERAL COURT AGAINST THE COLLECTOR?

We do not recommend filing a counterclaim as it often confuses the issues. If you have a good enough case to file, then our experience is that the case should be filed in federal court on its own and not as a counterclaim to a collection case.

 

WHAT BENEFIT DOES THE FDCPA GIVE ME IN MY SUIT – WHAT DO I GET OUT OF IT?

The FDCPA provides four basic benefits:

1. You receive up to $1000 in statutory damages even if you have no actual damages;

2. You receive all of your actual (compensatory) damages if you can show the violation of the FDCPA harmed you;

3. You receive your legal fees paid for by the abusive debt collector; and

4. Your litigation expenses can also be paid for by the collector that you are suing.

 

WHAT ACTION SHOULD I TAKE RIGHT NOW IF I HAVE BEEN SUED AFTER THE STATUTE OF LIMITATIONS HAS EXPIRED?

Contact us to schedule a call or in office appointment. Or you can call us at 205-879-2447 and we will be glad to help you understand whether we think you have a valid statute of limitations defense and if you have a valid lawsuit to file against the collector who sued you.

Remember to read our article and watch our 24 minute video on your 5 options when you have been sued by a debt collector in Alabama.

(Be sure and read the comments as there is additional information about the statute of limitations in the questions and answers below).

 


150 Comments

  1. Shari McGuffries says:

    I received a letter from Nathan & Nathan in Birmingham. About a debt I owe to Household Finance. The loan was taken out on April 2004.At this time I can’t afford to pay them off or reach an agreement, or have them garnish my paycheck.Can I file for Bankruptcy (Chapter 13)? Does the Statue of Limitation apply to this case? The people at Nathan & Nathan before this case, I had one with Capital One- I told them what I could pay them they told me that was not acceptable payment.I just paid that account off. But what is acceptable payment when I have living expenses as well?

    • JohnGWatts says:

      Shari,

      Are you being sued by Household Finance? Or by a debt buyer who claims to have bought the debt?

      There are some other questions we would need to know the answer to but this is not the place to do this — call my office at 205-879-2447 and ask to speak to Carolyn or Randi and they can get your information and then I’ll be glad to talk with you or meet with you.

      Bankruptcy can be an option but normally is not the best option. We can explore all of your options so you can make the best decision for you.

      Best wishes and we look forward to hearing from you.

      John Watts
      Birmingham, Alabama

  2. Michaelann Harbin says:

    I have a question about the statute of limitations in AL concerning credit card debt. When does the time start? And also does the time start over when that company sells the account to a debt collector? I know it’s 3 years, but is it 3 years from the date I made the last payment on the account? Thanks so much

    • John Watts says:

      Great question and we will do a more indepth article about this because it is such a common question.

      Several things we need to look at….

      First, which state’s law applies to a lawsuit in Alabama?

      Second, assuming Alabama law applies, what is the statute of limitations for each type of “cause of action” that the collector/debt buyer sues us on?

      Which State’s Law Applies?
      Normally we think of Alabama law as applying because the general rule is that the law of the state where the lawsuit is brought (Alabama) is the law that controls what is called “procedural” law. Procedural law is the statute of limitations (normally), how you file a lawsuit, the time to answer a lawsuit, how you do depositions, etc.

      The law of the state where the “wrong” happened controls the “substantive” law — this is the amount of damages you can receive, what you have to prove in your case, etc.

      So here’s an example.

      We represented a family who had a loved one killed in another state (TN) but we filed suit against the trucking company in Alabama. TN law told us what damages could be recovered (much different than Alabama by the way) but Alabama law told us the statute of limitation, how long the defendant had to answer the lawsuit, etc.

      So in a collection case, it would normally be Alabama. But, sometimes the credit card agreement states the laws of ________ state will control. Does this mean just the substantive law or does it mean the procedural law also? The courts around the country are divided on this.

      A problem with debt buyer lawsuits is normally the debt buyer can’t prove what the agreement says because these agreements change all of the time and we are usually talking about agreements in place 4 or 5 years ago.

      But if it is a different state, then we need to look to the laws of that other state to find out the answer to the statute of limitations for each type of claim. See the next section for an example — using Alabama.

      What Are The Time Periods For Different Causes Of Action In Alabama?
      An open account — which is what credit cards are — is three years. The statute would start running when you default on the debt obligation. There is controversy and disagreement over whether this would start from the date of your last payment or your last missed payment. Collectors argue that if you make a payment 5 years later, you have restarted the statute of limitations.

      I don’t agree with this but why give them an argument. There are ways to pay without restarting the statute of limitations — get the collector to agree you are not reviving the statute of limitations. If they won’t agree in writing, that should be your answer….

      A stated account — or account stated — is six years. So is breach of contract. Collectors love to use stated account even though I don’t think it applies in a credit card context. We’ll go into this in more detail in a future article.

      Here’s The Bottom Line
      The whole SOL can be somewhat confusing, in part because the collectors normally don’t have the terms and conditions that will tell us which state’s laws apply.

      As a practical matter, most collectors/debt buyers who sue in Alabama do so around the 4-5 year mark. After the “open account” 3 year period has expired.

      In our experience, the bigger problem is the debt buyers file suit and seem to not have any intent to prove their case. They sue folks who do not owe the debt buyer any money and the attitude among debt buyers appears to us to be “Well, we have no proof, and no intent to prove you owe us, but we sure are hoping that you will not show up or you will be intimidated into paying us money.”

      That is known as a “shakedown” lawsuit — it is extortion. File tons of bogus cases and hope people will pay you money or not show up to defend themselves. There is little outrage about these types of bogus cases filed but that will change as Alabama consumers start fighting back.

      Thanks again for your comment and I hope this reply (incredibly long as it is!) has been helpful to you.

      John Watts

  3. Linda says:

    What about a payday loan that is now 5 years old. Is the statue different for those?

    Thanks.

    • John Watts says:

      If in Alabama it may be that this would be breach of contract which tends to be 6 years. I’ve never actually looked at one of these for SOL as most of these are so bogus that at least against my clients no one seriously tries to collect them. If you are in Alabama, feel free to get in touch with my office and let us look at the contract. You should have been given a contract when you signed up for the pay day loan. Sometimes online pay day loans are much different so let us know if yours was with a real business in Alabama or some online place that maybe is not so legitimate.

      Thanks

      John

  4. Greg says:

    I have been told that if you send a letter disputing the validity of the credit card debt that the SOL changes from 3 yr to 2 yrs.
    Is this true and what is the Alabama code that references this?
    Also, does the SOL start running at the date the last payment was made or the date the first payment was missed?
    Thank you for your help.

    • John Watts says:

      Greg,

      In Alabama, I’m not aware of anything that changes the statute of limitations from 3 years (an “open account”) to 2 years. Sorry I can’t help you on this.

      As far as when the statute of limitations (SOL) starts to run, I think the most accurate view is your last missed payment. Now, if the SOL has expired and then you later make a payment, the creditor or debt collector will argue this “re-starts” the SOL. It is not quite that simple in my opinion.

      I hope this answered your questions — let me know if this did not and I’ll be glad to chat with you.

      Best wishes

      John Watts

  5. Greg says:

    John thanks for your earlier reply but Im still not clear were i stand the last payment posted 1-15-10 the next payment due date was 3-12-10 the collection agency filed their lawsuit on 2-18-13 splitting those dates so my question is: had the statute of limitation expired?

    And part b of my question attorney John Caraway with Campbell & Campbell at talledaga had told me to send a letter disputing the validity of the debt and that change the SOL to 2 yrs vs 3 yr.
    I sent that letter 2&half years ago but i don’t know what law that was based on and can’t locate him to ask. can you please help me find out he said it was based on civil law i believe was what he said.
    Thanks again for you help.

    • John Watts says:

      Greg,

      If the next payment due date was 3-12-10 then I think that is when the statute of limitations will start running — when that payment is missed. I’m assuming you were relatively current up until the 3-12-10 date.

      I have never heard of any type of dispute letter changing the statute of limitations. As noted in the main article and some of the comments, the collection attorneys argue the statute of limitations is not 3 years but 6 years.

      Feel free to contact my office at 205-879-2447 and let us know which collector has sued you.

      In 95% of the collection lawsuits there is no need to even get to the statute of limitations defense. The collection agency (debt buyer) has too much trouble on its hands in proving it owns the debt it has sued on. If it can’t prove it owns the debt, then the statute of limitations is not important. Does this make sense?

      Also, check your credit reports to see if after you disputed the debt (if to the same company now reporting), is it being reported? Reported as “consumer disputed” or is that part missing? This can be a violation of the law. http://www.alabamaconsumer.com/2012/04/if-you-dispute-a-debt-the-collector-must-mark-it-as-disputed-on-your-credit-report/ They hate to do this — http://www.alabamaconsumer.com/2012/04/why-collectors-hate-to-mark-your-account-as-disputed-on-credit-reports/#.

      Thanks again for your comments and I hope this has helped some. Let me know if you have any other questions.

      Have a great week.

      John Watts

  6. jevon says:

    I have an old credit card (furniture) that I have not paid on since 2007 byt the collectors own admissionin a letter they sent me. But they have proceeded with trying to sue me and I have to answer the summons. It says breach of contract and open account. This was a credit card and it was mine but is it not past the SOL to sue me? Do I include paper work with my answer to summons to prove the debt is past 3 years?

    • John Watts says:

      Jevon,

      It depends on where you were sued — if sued in Alabama then this may be beyond the statute of limitations. Breach of contract is normally 6 years so it depends on when the statute started running in 2007 and when you were sued (not served) in 2013. If, for example, you were sued in January 2013 and you stopped paying in November of 2007, then if 6 years is the SOL then the suit is timely.

      I just mentioned in a comment that normally the biggest problem for the collectors (debt buyers such as LVNV, Portfolio, Midland, etc) is proving they own the debt. If they can’t do that, then nothing else particularly matters. http://www.alabamaconsumer.com/2012/08/sued-by-lvnv-midland-funding-or-portfolio-recovery-associates/

      Do make sure you do NOT default — you can have the greatest defense in the world but if you default then it is meaningless. So make sure you respond in time to the lawsuit.

      Which debt buyer sued you?

      Also if you are in Alabama feel free to contact us at 205-879-2447 and we’ll be glad to chat with you about your 4 options when you have been sued by a debt collector.

      Best wishes

      John Watts

  7. jon doe says:

    do you have any affiliates in other states? im being sued in nevada for a debt at least 3 years old,claimant barclays bank delaware,but could that be a debt buyer ? delaware SOL IS 3 years so im kind of shocked tey would dare sue and definatly want to bring a fdcrpa suit bac to them for this. I dont have much cash to file an answer nor do i want to try to claim inigent satus,is filkng a motion for dismissal free?

    • John Watts says:

      YOu can check out NACA (National Association of Consumer Advocates) to find a lawyer in your state. I don’t know what the cost is for filing a motion to dismiss but if you have a valid FDCPA (Fair Debt Collection Practices Act) claim, you may find a lawyer in Nevada that will handle the defense of the case for free and then make his or her money off suing the collector for violating the FDCPA.

      I would not try to do this on my own — there are all sorts of implications when you start dealing with collection lawsuits and whether to file a counterclaim or a separate federal court lawsuit. Get some good advice from someone in your state who knows what they are doing and you will be in good hands

      Thanks for the comment and keep us posted on what happens….

      John Watts
      Birmingham, Alabama

  8. Tim says:

    I recieved a judgement in 2011 for a debt from 2002, I didnt know anything about the statue of limitations in Alabama being 6 years for a written contract. I have since then payed the entire 6700 debt and 4500 lawyer fees through garnishment.Is there any way I could sue or request my money back.

    • John Watts says:

      Tim,

      I’m sorry — I don’t know of any way for you to get your money back. A consequence of a judgment is that a judge has said you owe the money. Very hard to undo judgments, particularly once you get past a few weeks.

      Normally when our clients win their collection lawsuit against the debt collector, and then we sue the collector, the collector will argue “Yes they won but Judge they really do owe the debt.” The federal judge says “That matter has already been decided. You should have won the collection case.”

      Same thing here — even though you didn’t know what the statute of limitations was, your lawyer should have raised it or if you were your own lawyer then the law says you should have known what the time period was….. It can be a harsh law because you have very little time to answer lawsuits and sometimes you can’t find a lawyer who will fight this.

      Here is an article I did on folks who do not owe the debt but who have a judgment against them ruling that they do actually owe the debt.

      Sorry I don’t have better thoughts for you.

      I do suggest you make sure your credit report shows the account is off of your credit report (if you defaulted in 2002 it should have gone off in 2009 or 2010) and that the judgment is marked as paid. Do you have a “satisfaction” of judgment from the collection lawyer? If not, I would get that to show that you have actually paid the judgment completely (if you have). That needs to be filed in court by the collection lawyer.

      Best wishes

      John Watts

  9. Lisa says:

    Hi,
    I’m getting collection calls on things that fall under the SOL. Should I dispute these items on my credit report for that reason? Or should I contact them directly?

    Thanks,

  10. Rachel says:

    Hi

    We had a car repossessed in 2007. The company sold the account to a debt collection agency. Today they call threatening to come get our house by putting a lien on it. The company is CitiFinacial. They said they would do this if we didn’t come up with half the money by the 28th of the month. I read that the statute of limitations is only 6 years. I’m confused about it being through the collection company now. Can they do this?

    Thanks!

    • John Watts says:

      Rachel,

      Thanks for your comment. The statute of limitations is normally 6 years at the most in Alabama.

      When in 2007 was your car repossessed?

      Who is the collection agency?

      Make detailed notes of who called you — when they called (take a screen shot of the call or caller id) — and what they told you.

      If the statute of limitations has expired then it is illegal to threaten to sue you.

      It is also illegal for a collection agency to threaten to take your house unless they explain they have to sue you, and then win, and then get an order to do a “sheriff’s sale” in order to take your house. We have sued a number of collection agencies for this exact type of illegal conduct.

      If you are in Alabama give us a call at 205-879-2447 and we’ll be glad to talk to you.

      Thanks

      John Watts

      • Tanya says:

        I’m in Hawaii, do you know anyone I can contact here? I was just threatened by a debt collector that they would sue me for a debt that I last paid in February 2008.

        • John Watts says:

          Tanya,

          I’m sorry I don’t know of anyone there — I did but that person has passed away.

          Check out http://www.NACA.net and use the “find attorney” section to see if someone there.

          If you can’t, then you likely can sue the debt collector in another state if it is a national debt collector. We have done this before where folks from outside of Alabama hire us to sue debt collectors and we sue them here in Alabama.

          See if you can find someone who is knowledgeable about this in Hawaii first and do let us know if you can find someone.

          Thanks for your comment!

          John Watts

  11. Amy says:

    Hello,

    I was just contacted by an attorneys office stating I owe $2000 on a credit card debt from 10 years ago. He went on and said that a civil case was being files against me. Plus a criminal case and that warrants would be issued for my arrest in the next 24 hours, if I did not show up in his office with them amount owed. I have no clue as what this guy was talking about! I asked him to send me papers or something in writing so I could research this. He said the only paperwork I would be getting would be when I was arrested!

    I asked this gentlemen to not call me back and hung up the phone. He proceeded to call me back. At which time I asked for his name and number. I then told him he was harassing me and if he called me back I would turn him over to the State Attorney Generals office. I then hung up the phone again. At which time he called back a third time just to say to me that he would keep calling me!

    I have no clue or knowledge as to what this man is talking about. What should I do?

    • John Watts says:

      Amy,

      This sounds like a scam collector. You did the right thing by asking for paperwork and his contact information. These scam guys are banking on the fact that the threat of a lawsuit or criminal proceedings (“arrested”) will scare you into paying without any proof.

      I’m glad you stood firm — the more people that do this the more these scam guys will go out of business.

      Always ask them for their full mailing address and that you want them to mail a letter to you — not fax, not email, but real mail with a stamp. I have not yet seen one of them do it.

      You may want to check your credit report by going to http://www.AnnualCreditReport.com to make sure this debt is not on there.

      Best wishes and let us know how this turns out for you….

      John Watts

  12. Tara Mae says:

    My husband and I received a letter stating that we owe for a medical bill that we know nothing about. When asked for proof, they sent us some bogus letter with bogus original creditors. What can we do? And is there a Statute of Limitations on medical bills as well?

    • John Watts says:

      Tara,

      Do you live in Alabama?

      If so, give us a call at 205-879-2447 so we can understand better what is going on.

      In general, if you receive a collection letter — sending a letter asking for proof is a good idea. We have a simple dispute letter we recommend here.

      If the response you get back does not show you that you do owe the debt, then you can ask for more proof and tell the collector why you think what they sent was not any good. Or you can simply say you don’t owe it if it is clear. Each situation is different but here’s the bottom line:

      We want to pay our debts that we owe to the right people — we do NOT want to pay debts we do not owe and we don’t want to pay the wrong person.

      Best wishes with this situation and if we can help let us know.

      John Watts
      Birmingham, Alabama

  13. Samekia Armstrong says:

    I was garnished 2 years in a row after SOL the car company never sent it to the court to be renewed they just faxed my job and keep during me I actually paid the 7000$ for this car the first time they garnished me in 2005 can I not get my money back

    • John Watts says:

      At least in Alabama you cannot be garnished without a lawsuit that ends in a judgment against you. One exception is federal student loans. Where are you living where the car company garnished your wages without a lawsuit? Or maybe I misunderstood you. Was it an earlier judgment and then they simply waited since 2005 to garnish you?

      Sorry I’m not fully understanding your question.

      John Watts

    • John Watts says:

      Samekia,

      Were you sued after the statute of limitations expired? Or were you garnished after you lost a lawsuit?

      Once a lawsuit is filed within the SOL, then even if the judgment happens afterwards, it is ok. Then a garnishment can happen years later.

      Do keep in mind you have to be properly served for a judgment to be entered against you.

      There are some limits on how long a company has to garnish you — if you live in Alabama contact my office at 205-879-2447 and we can chat about your particular circumstances.

  14. John,

    I have just pulled my credit report, what is the statue of limiations on a medical bill? I have several dating by to 1997 that still show on my credit report in collections. Can those be legally removed?

    • John Watts says:

      Kimberly,

      In Alabama the statute of limitations will normally be 3 or 6 years. That’s the time period to sue you.

      The time period to credit report is different — it is 7 years from when you defaulted. If your bills are from 1997, no way they should still be on your credit report unless you paid them on time — in which case you wouldn’t have a collection account. So that is very odd and almost certainly illegal.

      Here are your options — and do get with a consumer lawyer in your state — but in general:

      **Sue under the Fair Debt Collection Practices Act (FDCPA) for false credit reporting — this is section e(8) of the FDCPA.
      **Send a dispute letter to the collection agencies and the credit reporting agencies asking that these be removed and, if not, to explain to you in writing why these accounts will not be removed.
      **Call the collection agencies and ask them what is going on.

      You should not be dealing with this on your credit reports — I’m interested in the explanation (excuse) the collection agencies give you. If you are in Alabama feel free to give us a call at 205-879-2447 and let the receptionist know you put a comment on our website and have a 16 year old collection account on your credit report.

      Best wishes and stay in touch!

      John Watts

  15. Charlotte Clayton says:

    What are the procedures necessary from a creditor before a judgement is issued? Shouldn’t the judgement letter be sent to the debtor via certified mail? How can they prove it was ever received? Thanks for your response.

    • John Watts says:

      Charlotte,

      Here’s what has to happen for a judgment to be entered:

      1. You must be sued.
      2. You must be served with the lawsuit.
      3. You must then lose the lawsuit.
      4. Then a judgment is entered.

      The judgment, at least in Alabama, does not have to be mailed by certified mail.

      If I’m missing what you are asking please let me know.

      Thank you for the comment!

      John Watts

  16. Laura says:

    What would the SOL be on one of those loan companies where you list various household goods as collateral (similar to a title pawn but with household goods instead)? Would this type of loan fall under the UCC Article 9? Would the SOL fall under Code of Alabama Section 6-2-34 of 6 years? Thanks!

    • John Watts says:

      Laura,

      I’ve never looked at that kind of contract but generally contracts are for 6 years in Alabama.

      I’m not a UCC expert but normally these types of loans are not made for you to buy the household goods (i.e. you aren’t buying a TV with the money) but instead it is a loan and you are “securing” the loan with your household goods.

      My leaning is towards the 6 years.

      If you have more specific questions — if someone is suing or threatening to sue — let me know by leaving a comment or contacting my office at 205-879-2447.

      Thanks for the comment and I hope my answer helps — I know it is not definitive but these are my thoughts….

      John Watts

  17. Ebony says:

    I have been garnished and wasn’t aware did not recieve any info from the creditor nor my job had been out on a loa for illness for more than 3 months my job stated the sent me an email regarding the info however I was out due to illness so never recieved email and the creditor never served me the debt is from 2006 thats when I got behind on acct it is currently 2013 are they still able to garnish my wages I think this is illegal and its for a car that was reposessed

    • John Watts says:

      If you were never served, then under Alabama law the judgment can be void — worthless. You do have to take steps quickly to get the judgment set aside and then the lawsuit will proceed.

      If you live outside of Alabama I suspect the procedure is the same but you’ll need to get with a consumer lawyer in your area.

      Here, when we face this situation, we file a motion to let the court know the judgment is void as our client was never served. We give proof of that to the judge.

      We also show we have a valid defense to the lawsuit so the judge realizes it makes a difference to undo the judgment. If the judgment is voided (undone/set aside) then the garnishment is no good.

      Get some help ASAP as it sounds like it is possible the statute of limitations has expired (depending on when suit was filed against you) and that the judgment can be set aside.

      Best wishes and let us know how it turns out for you.

      John Watts
      Birmingham, Alabama

  18. Chris says:

    Sol on equity line of credit? Was a revolving type equity loan where we were to borrow what amount we needed and payments were based on that amount. House was foreclosed on and sold for just under enough to cover the original loan.
    Getting sued for this and feel like it falls out of sol.
    Thanks.

    • John Watts says:

      Chris,

      If you are in Alabama then most likely this would be considered an “open account” which is 3 years in Alabama. When did you last take a draw on the line? When did you last pay on it?

      Critical that you do NOT get a default judgment — you need to respond to the lawsuit in time.

      If you are in Alabama please call my office at 205-879-2447 and ask to speak to Randi Curb and tell her we connected on our website and she’ll get your information so we can see exactly where you are right now and what your options are going forward.

      I also suggest you pull your credit reports — http://www.alabamaconsumer.com/2012/08/how-do-i-pull-my-credit-reports-for-free/ — sometimes what a mortgage company reports on your credit reports is completely different than what they put in the lawsuit to collect a “deficiency” after a foreclosure.

      Best wishes

      John Watts
      Birmingham, Alabama

  19. Laurie says:

    Great Information.

    Here’s a question: Providian Credit Card merged with WAMU, and bills started coming from WAMU. Then Chase in 2008 had to buy WAMU and all their debt including what WAMU had from the Providian merge. Chase turned my account over to a collection agency that keeps giving me a 30 day or else letter every couple months and the other months I get a let’s settle for 30%. I have not paid since 5/2008 and the last payment went to WAMU. Chase has been notified my account was wrong, payments were not applied that had been sent to WAMU, copies of all validating payments were sent to Chase with a dispute letter, and they just kept adding interest, late charges and over limit charges. It started at $8,000 and now the collection agency shows it on my credit report over $20,000. Any suggestions?

    • John Watts says:

      Laurie,

      Sounds like you are dealing with a mess which is fairly common with the whole Providian->WAMU->Chase type of situation.

      I’m not sure if you think you still owed any money on the card or not but clearly payments have to be applied correctly and you can’t be collected on a debt you don’t owe.

      Or you should not be.

      Best thing to consider is letting the collection agency know exactly what is going on and ask them to send you written proof of what they claim you owe and why.

      False credit reporting is a bad thing and you can normally sue debt collectors that do this.

      If you live in Alabama and want to chat, feel free to call my Birmingham office at 205-879-2447.

      Best wishes and glad you found the information on this page helpful.

      Thanks!

      John Watts

  20. Larry says:

    I lived in Montgomery, Al from 1995 – 2011. I financed a car thru Capital One in 2004. Due to financial difficulties, I returned the car to Capital One’s attorney later in 2005. I have not heard anything from them since. Yesterday, after applying for a job in Florida, the background check revealed that I had a lawsuit on file from Capital One. I knew nothing about it. I still have the same cell phone number through I now live in AZ. I also have a Capital One credit card approved in 2011. A credit line increase that doubled my limit in 2012. Why did Capital One not notify me about any deficiency payments due? What about the SOL? This makes no sense, it’s caused me to loose an excellent job.

    • John Watts says:

      Larry,

      Where were you sued? Alabama or Arizona or Florida?

      Were you served with the lawsuit? Did you know anything about it?

      Capital One Auto and Capital One credit card companies don’t always communicate very well with each other.

      As far as the statute of limitations, that depends on where you are and if you are being sued now. If already sued, you’ll need to know when and where as each state is different.

      Is the judgment on your credit reports?

      Is the Cap One Auto on your credit reports?

      Sorry you are in this situation but first figure out what happened and then get with a lawyer where you live right now to see your options. If that lawyer wants to talk to me about Alabama law, have him or her call me at 205-879-2447.

      Best wishes….

      John Watts

  21. Evelyn says:

    I am being sued by Midland – they filed the suit in November, 2013 which I knew was close to SOL. According to TU, the date of last payment was 10/17/10 and it will fall off my CR 10/2017. Equifax lists DOLA as 11/10. Does AL follow DOLA or DOFD? If the date on which SOL started was 10/17/10 then were they outside of SOL when they filed the suit 11/13?
    Thanks!

    • John Watts says:

      Evelyn,

      If Midland sued you then they always sue under “Breach of Contract” and “Account Stated” which is six years. Now I disagree that breach of contract and account stated are the right theories but that is what Midland will sue you under — either by Zarzaur & Schwartz (Birmingham, Alabama) or Holloway & Moxley (Montgomery, Alabama).

      The bigger problem for Midland is can it show it OWNS the debt.

      Having handled around 200 Midland lawsuits in various ways I have yet to see Midland actually prove it owns the debt.

      On your question directly about when the SOL starts, it is generally when you miss your payment so it maybe that Midland filed this within 3 years which is the Alabama time period for what is known as an “Open Account.”

      Make sure you respond to the lawsuit within the time limit — 14 days in district/small claims court and 30 days in circuit court from when you were served.

      If you have questions or want to get further information from us (we can mail and email you free information) just let us know. Call us at 205-879-2447.

      Best wishes in your case.

      John Watts

  22. Evelyn says:

    In Alabama, does SOL begin with DOFD or DOLA? I’m being sued by Midland and the account in question is reported as DOFD (actually date of last payment) 10/17/10 by Transunion and DOLA of 11/10 with Equifax. Midland filed the suit on 11/26/13. If the clock starts with date of last payment or DOFD (TU says it will drop off my report 10/17) then was Midland past SOL for filing? Bench trial is set for the end of January, but if they were past the SOL should I contact them and ask them to withdraw the suit? They are trying to go for account stated so they may be working on a 6 year SOL. Thanks!

    • John Watts says:

      Evelyn,

      I just saw this one so pardon the repetition of the last comment. :)

      You are right on the account stated — it is 6 years under Alabama law. It is a question about which law applies but assuming Alabama law then that is 6 years.

      I don’t think Midland can properly sue a consumer in Alabama under account stated but it is what they do nearly 100 times a week as they normally sue outside the 3 year SOL for open account.

      I don’t think they will withdraw the case just based on SOL as this is what they do every day — sue people between 4-6 years.

      Give us a call if you want to chat about it — ask for Carolyn and she can set up a call with you or you can give me your information by filling out our contact form here.

      Good luck!

      John Watts

  23. Robert Ingram says:

    There was a judgment filed against me on March 8, 2007, and I noticed on my credit report, they updated it on April 4, 2007 on a credit card which no payments have been made on the debt. According to Alabama Statue of Limitation is 6 years. There has been no payments made on this debt. Six years are up, so why is the lawyer still harassing me?

    • John Watts says:

      Robert,

      If a debt collector obtained a judgment against you in 2007 then they can continue to collect on it.

      The statute of limitations applies to when a collector must SUE you — after a judgment is entered (which means the collector won) then they can collect on that judgment for many years.

      The judgment also makes interest which can easily double the amount of the judgment in a matter of 6 or 7 years.

      I want to make sure we are on the same page about what has happened so give my office a call if you would like to chat — 205-879-2447 and ask for Carolyn. If you have the court documents and letters from the lawyers, you can get those to her so she can organize that for me to look at and I’ll be happy to do a phone meeting with you to see where you are in this process and what your options are at this point.

      Best wishes

      John Watts
      Birmingham, Alabama
      205-879-2447

  24. Derrick Lucy says:

    I recieved paperwork from a law firm on Birmingham concerning a collection account they were given by another company. This old account was a revolving credit account and I lost my job in 2009 and my last payment was in 07/2009. As far as statue of limitations are concerned im not sure if this falls under the 3 years as a credit card would but it appears to be the same because there is no set payment amount or pay off date. Please let me know what my options are before or even if I will receive a summons in the future.

    • John Watts says:

      Derrick,

      They will sue you under “Breach of Contract” and “Account Stated/Stated Account” which they claim is six years to get around the three year statute of limitations.

      Give us a call at 205-879-2447 and let us know who the collection lawfirm is and the name of the company they are collecting for and we can give you a pretty good idea if you will be sued or not.

      I suggest you pull your credit reports for free — you can do that here — because sometimes what the collectors put on your credit reports will not much what they do in a lawsuit. This can be illegal and can give you the right to sue under the Fair Credit Reporting Act (FCRA) and/or Fair Debt Collection Practices Act (FDCPA).

      We’ll be glad to walk you through your options so if you are interested give us a shout at 205-879-2447.

      John Watts
      Birmingham, Alabama

  25. Ben Hitt says:

    ok so i have recently bought a house and all went well, 6 months later im checking my credit score and i see something has went into collections, i lived in tuscaloos in 2011, i had an apartment with some “friends” long story short they ditched me and i had to pay this on my own. the apartment had some kind of crazy thing where if you dont tell them your moving out the lease gets extended for like 6 months. i didnt know this, i left when i thought my lease was up and even told the lady at he front office. i was NEVER aware of this. after being hounded by them for $4,000… i got my dad to get his lawyer to call them and they settled it for $350. now here we are today, this new bill is for the power company that i used at this apartment…. its 3 years old! the power at my current house is in my girlfriends name. i tried calling Alabama power and explaing to them that i never received any bill so i do not think i should have to pay… what should i do? i asked them to send me a detailed bill to my current address. its $235. i know i paid my last bill, but i have sense then changed banks “wells bought my bank” so i have no way of even finding these records. whats my best bet to do? thanks

    • John Watts says:

      Ben,

      Sorry you are dealing with this — ask Alabama Power Company to put in writing what you owe and why you owe it and whether they ever notified you of the bill.

      It may be you owe it or maybe you don’t — but that’s the first step I would do.

      Feel free to give us a call at 205-879-2447 and we can help you look at your credit reports to see what is reporting and then compare that with what APCO sends you if they send you anything.

      John Watts

  26. Jody says:

    I’d like to know the process or course of action I need to take in order to clear up a charged off revolving acct from back around the year 2000. A debt buyer (Portfolio Recovery) has acquired the account and is now attempting to recover an exorbitant amount from me. I have an old credit report from 5/02 that states the account was charged off with a high credit of $222 and an acct balance of $955. Now PR is asking for nearly $1700. I believe I am within my rights to demand they refrain from any attempts at collecting this “debt”. If that is in fact the case how may you suggest that I go about this so that I may be successful? Thank you for any advice

    • John Watts says:

      Jody,

      If Portfolio Recovery is collecting on a debt that was charged off in 2000, then at least in Alabama it is too late for portfolio to sue you.

      It is also too late to report this on your credit reports.

      What has Portfolio said they will do if you don’t pay? They can’t threaten to sue or credit report.

      This leaves simply calling you and writing you without making those threats.

      You can always send a “refusal to pay” letter or a “cease and desist” letter (these are the same things) and if PRA continues to contact you, then you sue for violating the FDCPA.

      Let me know if this did not answer your questions — bottom line is there is nothing PRA or any other collector can do to collect this (if you live in Alabama) other than call or write and you can stop that.

      Usually on ancient debt like this — when they see you will not just pay what is likely then 10th debt buyer/debt collector — then they will go away.

      If you are in Alabama give us a call if you want to talk — 205-879-2447.

      Thanks

      John Watts
      Birmingham, Alabama

  27. rocky says:

    If you have an old debt that is going to fall off your credit bureaus by the end of this year (according to your credit reports). (I get a copy of one credit report to review for annualcreditreport.com every 3-5 months to review changes and so forth.) And on those credit reports Midland shows up, but the original creditor does not – is that a violation of FDCPA laws? I thought collection agencies had to stop reporting when the original creditor stopped reporting.

    • John Watts says:

      Rocky,

      The original creditor and collection agency (or debt buyer) are separate so even if the original creditor is no longer reporting, the new collection agency such as Midland can report.

      BUT.

      If the time period for reporting is over — basically 7 years from when you allegedly defaulted — then it is too late for ANYONE to report, including a new debt collector.

      Midland is a company we have sued close to 40 times I suppose — almost all of those have related to credit reporting. So keep a close eye on what they are saying and in particular if you have disputed it with Midland it must say “Disputed by consumer” or words to that effect.

      If you are in Alabama, feel free to give us a call and we’ll be glad to help you think through your options and see what the best next action is for you to take.

      205-879-2447

      John Watts
      Birmingham, Alabama

  28. Cyrus says:

    Could a collector or mortgage servicer issue a 1099-c four years after the original note holder has issued a 1099-c for the same debt? I have already reported it as income in my taxes filed for 2009.
    I have heard that it is illegal that two lending institutions charge off on the same loan and issue 1099-c on the same property and for the same amount. Am I right?

  29. Lisa says:

    Hello John
    I got credit card debt on several cards, the last payment I made was in nov 2008 since I lost my job and didn’t have enough money to pay credit cards bill. I’ve been receiving several mail offer from midland and other collection agencies wants to settle at 60 to 70% of the balance. My credit report shows majority of them will wipe out by 2015. I live in Alabama. Can midland and other collection agencies sue me? Since statue of limitation has passes. Also do I need to respond to midland and other collection agencies offer. I have no communication with any collection agencies.
    Thank you

    • John Watts says:

      Lisa,

      The SOL is either 3 or 6 years so sounds like you are either at the 6 year mark or very close.

      The time to stay on credit reports is 7 years and that is next year.

      If you are past the point of the statute of limitations, I don’t see much advantage to settling. But let’s talk about this and make sure we are on the same page.

      My office is 205-879-2447 and if you ask to speak to Carolyn she can get some info from you, we can take a look at the letters and credit reports, then give you our thoughts on the best approach to take.

      Thanks for your comment and question….

      John Watts

  30. Toni says:

    John I had a revolving credit card opened with Bank of America in 07/2008. At the time I lived in SC. I lost my job in 2009 and moved to Alabama I reached out to Bank of America to explain what had happened they send my account to collections ! I continued to call and ask if we could make arrangements for me to pay them back monthly they repeated if I had bought the insurance for a such a matter then I wouldn’t be in the predicament. I made my last payment in March 08/ 2010. On my credit report it is showing Charged Off! It is confusing to as date of first delinquency 03/2010 and then date of major delinquency 1/2011 and date reported 04/01/2011 ;0 anyway I received a letter serve to me today and I need to answer in 30 days to weather I will pay this account in full with added interest that is over $ 7,000 Do I fall into the Alabama. Statue? And should I reply to assist to deny after my last payment 08/2010

    • John Watts says:

      Toni,

      I’m sorry you got sued.

      Sometimes there is no explaining why these banks won’t work with people.

      As far as the lawsuit for $7,000, we would need to see who sued you and which state’s statute of limitation applies.

      I rarely use the SOL as there are other ways to beat these debt collectors.

      Make sure you answer (or hire a lawyer to answer) within the 30 days or they will win.

      Be glad to help you think through your five options:

      **Bankruptcy (rarely appropriate but occasionally)
      **Fight it on your own
      **Settle it on your own
      **Hire a lawyer to fight the lawsuit
      **Hire a lawyer to settle the lawsuit

      We have represented hundreds of clients against debt collectors and I can usually help you discover very quickly which of these options is best for you.

      My office phone is 205-879-2447 or let us know through our website contact us form thanks!

      John Watts
      Birmingham, Alabama

  31. kathy C. says:

    Convergent just sent me a collection letter concerning a debt to Centurylink. The default date is 3/2/2011. I am certain I paid that, but cannot remember when or how. First, what type of account is telephone service? Is it an open account that falls under the 3 yr SOL, or is it another type which would fall under the 6 yr SOL? This is an Alabama topic.
    Thank you

    • John Watts says:

      Kathy,

      Normally telephone service will be 3 years but the collectors still argue it is 6 years.

      Can you look through your banking records to see if you can find where you paid it?

      Was this a personal debt or for business purposes?

      Is Convergent calling you? Leaving you voicemail messages?

      Be glad to help — call my office at 205-879-2447 and ask the receptionist to connect you with Carolyn. She can get the basic information from you and set us up a call or meeting in person.

      Do be sure and save anything you get — any letters, envelopes the letters come in, voicemails — and document all calls that come in.

      Talk to you soon.

      John Watts
      Birmingham, Alabama

  32. Jarod says:

    John,

    I haven’t received a notice of a filed suit. But I did receive a letter regarding a debt from a rental agreement I believe is expired. I purchased a PC in 12/2005.

    I never made payments on the account and it rolled off my credit report in 2013, so that’s at least 7 years right there. II received a letter from the creditor 5/19/14 stating they intend to pursue legal action. I have the original agreement from 12/2005 and the only documentation I have is an old credit report from 02/2007 that shows the account being opened in 12/2005 and in collections (the 6 year SOL would have been 02/2013 even from that point). Based on the information I have, I’m almost 100% positive this debt has past the SOL.

    Are the just scare tactics or do they really have a case to file suit?

    • John Watts says:

      It sounds like it is beyond the SOL. I would need to see the agreement to know for sure. Certainly is a good sign that it is off of your credit report.

      Who is the collection agency?

      If you want to, send the documents to me and let’s set up a call or a meeting. I’m assuming you live in Alabama so I’ll be glad to chat with you.

      If the SOL is gone, and this collector is threatening a possible suit, then we need to look hard at suing the collector under the FDCPA as this has universally been recognized as illegal for several decades. Not like this is a new change in the law.

      Call my office at 205-879-2447 and speak with Carolyn — you can get the documents to her and she can set us up for a meeting (phone or video or in person — whichever is easiest).

      Talk soon!

      John Watts

  33. MDL says:

    Hello. My son has an account that was originally with BOA card services. He last paid 02.14.2011 . BOA charged off the acct and sold to Portfolio in June 2011. We receive phone calls 3-4x a day but do not answer. I don’t think he has ever received anything in writing from them. Since we have not talked to them, does the SOL apply and are they in violation of the FDCPA law?

    • John Watts says:

      Under Alabama law I think the SOL is 3 years — Portfolio would likely say it is 6 years. My suggestion is to answer the phone and see what this is about. The objective is to find out information about this debt and what PRA (Portfolio Recovery Associates) intends to do about it.

      So for example:

      **What debt are you calling about?
      **When did you get this account?
      **Do you claim to own it or are you collecting for someone else?
      **Are you going to sue me if I don’t pay you?
      **Will you send me proof in writing as I dispute this debt?
      **What will happen if I don’t pay you?

      Talking to PRA does not impact the statute of limitations. Now sometimes a payment can cause the SOL to restart if it has been expired so I would be very careful about that and only pay someone you know truly owns the debt and is entitled to the money.

      I personally have never seen a lawsuit where PRA was entitled to the money — they have always lost in proving they own the debt in my cases. So my suggestion is get them to send you proof.

      You can also send them this simple dispute letter to the debt collector PRA.

      Hope this helps and if you have any questions give us a call at 205-879-2447 or use the “contact us” to send us a direct message.

      Best wishes and thanks for your comment.

      John Watts

  34. Bryan says:

    I got a letter from Zarzaur in Bham as the attorney for Midland. Midland is the THIRD JDB Goodyear/Citibank has sent this to. I sent a DV letter like you suggest CRRR. Last payment made was 12/30/11, so it’s getting close to 3 yr mark.
    What happens now? I can’t afford to pay this $1600 and since it’s been sold 3x, I am sure it was sold for practically nothing. I want to pay and not get sued but you can’t squeeze money out of nothing.

    • John Watts says:

      Bryan,

      Zarzaur & Schwartz is one of the two firms for Midland Funding (the other one is Holloway & Moxley out of Montgomery) so you need to take the letter seriously. You are as you are researching your options so good job there!

      Why don’t you give us a call at 205-879-2447 or contact us through our website and we’ll help you think through your five options:

      **Bankruptcy (rarely appropriate)
      **Fight it on your own
      **Settle it on your own
      **Hire a lawyer to fight it
      **Hire a lawyer to settle it

      This amount will be a lawsuit in small claims court (if they sue) and that is something that you can legitimately handle on your own alot of times. Or you can hire a lawyer from our firm.

      We’ll be glad to help you figure out your options thanks. 205-879-2447 or contact us form.

      John Watts

  35. Melissa says:

    I have a question.. my husband had a credit card and they garnished his wages. However he has a child support garnishment and was “topped out” as far as how much could be taken out of his check because of the child support. It has been 10 years since they (credit card) file for the garnishment and his child support is about to stop. Can they still take the money out of his check for the credit card garnishment or is there a statue of limitations on that?

    • John Watts says:

      Melissa,

      There normally is a limit to the amount of paycheck that can be garnished (25%). So if the child support took priority then the lawsuit judgment will still be out there. Normally the judgment has to be “renewed” every 10 years or so but assuming that the judgment is still good, the garnishment could start on that.

      Remember a judgment in Alabama normally makes 12% interest so if it has been 10 years that judgment is going to be about 3 times what it was.

      If this is too much to pay, then you might look at bankruptcy (last resort) or if you can make a lump sum offer to settle the judgment.

      There is no “statute of limitations” on collecting a judgment unfortunately.

      If you have questions, feel free to get in touch with us at 205-870-2447.

      Best wishes

      John Watts
      Birmingham, Alabama

  36. Johnathan says:

    My wife closed out her bank account with a zero balance in August 2010 in Ohio when we moved to Alabama. In July 2012, we received a call claiming we owed $1,100 in overdraft fees in a charge off in October 2010 and my wife would not be able to have a bank account in the US for 10 years. They said they will be sending certified mail to our house and have someone there to sign for it. My wife took off 3 days and nobody ever came. We contacted the bank and they told us they sold off the debt and they no longer had record of debt/account closure since updated their system. In Novemebr 2013, we received a call from a different debt collector. They too threatened legal action. We sent a cease and desist letter and basically ask for proof of the amount of debt and they have authority to collect. The calls stopped. In June 2014, we received a call from a different agency claiming to have sent a letter to our house 30 days prior and we should have been served.

    Does the SOL apply to this debt? What can we do to protect ourselves other then keep on sending letter and asking for debt verification? We are sick of dealing with this every 6 months on a debt that is non-verifable and bogus.

    • John Watts says:

      Jonathan,

      I understand the frustration you are dealing with.

      While sometimes it works to continue to do cease and desist letters, normally that keeps you on a “merry go round” from one collector to another.

      I think normally it is better to deal with the problem directly.

      There may be a SOL on this matter but the most important thing is “Does your wife owe this debt?”

      Were there auto drafts or outstanding checks when the account was closed? How did we get $1100 in overdraft fees?

      If you are interested, give us a call at 205-879-2447 and let’s set up a call to discuss this. I also suggest your wife pull her credit reports (www.AnnualCreditReport.com) to see what is listed and if this new collector is on there.

      Save all voicemails. Take pictures (or screenshots) of all calls coming in whether you talk to the collector or not. Save all letters and envelopes.

      When you call us (205-879-2447) ask for Carolyn and give her your wife’s name and address and who claims to have sued her so Carolyn can look that up on the online court system (Alacourt) to see if a lawsuit has been filed. It may have been or this may be a lie by the debt collector to scare you into paying. If they lied, they need to be sued in federal court which we enjoy doing…. That stops them.

      Best wishes

      John Watts

      • Johnathan says:

        Thank you for the reply. There were no automatic payments set up or anything being drawn from the account. The biggest issue is we can not get a straight answer on what and how these overdrafts occured from a closed account. When we ask to give us a breakdown of the charges (multiple times) nobody is able to give this to us. I have checked her credit report and this debt does not show up (even from the original bank). They have not called/ contacted us since. From what I read online, the collection agency (Hoffman, Weingberg, & O’Brien) are not accredited by BBB and have been named in multiple lawsuits. Either way, thanks for answering my question and I will contact you in the future if this keeps to continue.

        • John Watts says:

          I’ve heard of this agency — they should not be collecting a debt that is not even owed.

          Keep an eye out for several things:

          **Credit report — look for this agency or some other agency to report

          **Other collectors to collect this debt as whoever you asked questions of may “kick” it to another place so you start over

          If you want to stop it now and prevent it from happening in the future, give us a call at 205-879-2447 and we can help you stop this once and for all.

          Or you can contact us in the future — whatever you prefer. Do keep in mind there are some time limits on when you can take action against a debt collector for violating the FDCPA (Fair Debt Collection Practices Act).

          Best wishes and let us know when you would like us to help you. Good job by the way on pushing these folks to give you answers! They hate it when you ask them questions…. :)

          John Watts

  37. Edith says:

    John, I have received a letter from Cloud & Willis LLC in Birmingham about a medical bill they say I owe. The thing is I don’t show any amount in my files that is this exact amount. I have asked for more informaiton on this amount. they have been very ugly stating that they will sue me. My husband it totally disabled and I am the primary care giver therefore we only have his SSD income. He goes to the dr quite frequently and we try to pay as he goes. There may be an old bill that we did not know about, but I can’t find it. What is the statute of limitations on medical bills in the state of Alabama, or is it legal in Alabama to sue for past medical bills. I know in some states they can’t. We can’t pay this amount that they are requesting at this time. Please help. Thank you E

    • John Watts says:

      Edith,

      Call my firm and we will help you — 205-879-2447. Cloud & Willis (I think it maybe Tillis) has to give you information about the debt. Sometimes collection lawfirms will not give you the information unless you ask for it in the right way. Be glad to help you do this.

      You can be sued for medical debt in Alabama — not common but it is possible.

      I understand your situation and medical debt can be very frustrating as you will get multiple bills from multiple places sometimes a year or two after the service.

      Frustrating indeed!

      Call Carolyn in my office at 205-879-2447 to set up a time to chat and we’ll be glad to help you.

      Thanks

      John Watts

  38. Audie says:

    Hello. I have currently just received a letter about garnishments being taken out of my check for an old hospital bill. This bill is between 6-8 years old. Isn’t the statute of limitations for this bill pass due? What can I do about this?

    • John Watts says:

      Audie,

      A garnishment will happen AFTER a judgment is entered. Once a judgment is entered, the statute of limitations really doesn’t apply any longer.

      When was the judgment entered?

      Were you served with the lawsuit before the judgment was entered?

      Feel free to contact us directly at 205-879-2447 and we’ll be glad to help you any way that we can.

      Thanks

      John Watts

  39. James Simson says:

    In Alabama, Does the SOL start at last activity when the last payment was made or when the next payment is due.

    I’m being sued by Midland in small claims. I never received any statements from Midland about any money owed until I received a Summons. Since I only had 14 days, I responded that I have never had signed any contract/account, or personal contact with Midland did not owe them a debt.

    The summons did not mentioned any prior creditor. I learned later it was an old credit card where the last payment made was 10/01/2010 based on my bank statement. Credit report also states last activity as 10/01/2010. I was served in March,2014 but the date of the summons is 12/20/2013. If the clock starts with date of last payment was Midland past SOL for filing the suit? They are trying to go for account stated and breach contract. How can it be stated/breach if I never received anything from them to deny the debt prior to the summons.

    The credit card did not have my name correctly spelled so in the suit it is not spelled correctly as my legal name. I want to request documentation to prove they own the debt. Do I just send them a letter to request the information? Or do I need some legal form that needs to be submitted?

    Thanks

    • John Watts says:

      James,

      We’ll be glad to chat with you about this Midland Funding lawsuit — we represent quite a few clients who have been sued by Midland.

      They sued you for account stated and breach of contract to get around the 3 year statute of limitation. I don’t think it is proper but if, for the sake of argument, they can sue you under these theories, the SOL is normally 6 years in Alabama.

      There are some strategic reasons to consider NOT asking for proof of ownership before your trial.

      Call us at 205-879-2447 and ask to speak to Carolyn and she’ll set us up a call or meeting to discuss your options.

      Thanks!

      John Watts

  40. Shawn says:

    Hello,

    I have a question about student loans, I’ve read that federal student loans have no SOL but can the same be said for private bank student loans? I received a letter from Richard Boudreau & Associates based out of New Hampshire stating that their client RBS Citizens is the current owner of my debt. My last payment on this debt was 04/22/2008? Has the SOL expired?

    • John Watts says:

      Shawn,

      You are right that normally Federal student loans don’t have a statute of limitations (SOL).

      Private student loans DO have a SOL. Think of a private student loan as a large “signature” loan — only difference is it is very difficult to discharge in bankruptcy.

      Richard Boudreau is a debt collector so it has to comply with the Fair Debt Collection Practices Act (FDCPA). One requirement is to not threaten to sue (or to sue) after the SOL has expired.

      In your situation, the SOL may be six years. Where do you live? Where were you living when you took out the loan? What does the loan contract say about the SOL or which state law applies?

      I’m assuming since you are on this site you are an Alabama consumer. Probably Alabama law applies which would mean that you are likely outside the SOL. (I’m also assuming you were supposed to start the repayment process before 4-22-08, i.e. the loan was not in deferment or forebearance in April 2008, etc).

      Bottom line is you may be past the SOL — I would need to look at the documents and talk with you to figure out the facts of your case.

      Do keep careful track of all letters, calls, etc. from this debt collector. Pull your credit reports to see what is being reported by this collector and by whoever claims to own the debt.

      Give us a call at 205-879-2447 and tell the receptionist you have a question about a debt collector contacting you on a student loan that may be outside the SOL. She’ll get you to the right person and we can talk by phone, video, or in person.

      Thanks for your question and I look forward to hearing from you.

      John Watts

  41. Charlotte Cook says:

    I made my last c.c. payments on six cards in August 2009 after being laid off. I still get calls from at least two of the collection agencies and have told them that I am still out of work. Have I renewed the SOL by saying this, because it is admitting to your debt? I read in a article or in the comments by Brie Hoffman that if you admitted to your debt after 5 years and your SOL is 7 years it renewed it for another 7 years.
    I appreciate your assistance on this.

    Charlotte Cook

    • John Watts says:

      Charlotte,

      By talking you don’t renew the SOL. I would not recommend admitting it is your debt as you have no idea if this collector who is calling is entitled to collect the debt. Better to verify first that the collector is the right one and they have the right amount.

      We will be glad to help you navigate how to talk to the collection agencies — give us a call at 205-879-2447 and let the receptionist know you are dealing with collection agency calls. We’ll get you set up for an in person meeting or a phone call — whichever is most convenient.

      Best wishes and thanks for your comment.

      John Watts

  42. Jewelene Cannon says:

    A family member was sued by Midland for old credit card debt. Last payment October 2009. Suit filed March 2014. An answer to complaint was filed April because one, they served papers to a minor and two, the debt was five years old by payment. Never heard anything back until July and it was from them a motion for summary judgement and an unsigned undated summary judgement granted page. No court date was ever sent to notify after answer to complaint was filed. What would be their next step to take to get rid of Midland?

    • John Watts says:

      Jewelene,

      From what you described the family member has lost the case and has a judgment against them.

      Timing is critical — there is not much time to get the judgment set aside. Depends on which court sued in (Circuit or District) so if they want to talk to us, have them call us ASAP. 205-879-2447.

      When you have a case in court you can’t always rely on the mail. Have to check in with the clerk’s office to see if anything has happened in your case. Its a pain but the court will not and does not send out notices of hearings, etc. by certified mail. Your family member either never received anything in the mail (even from the attorney who filed the summary judgment motion) or did not recognize it or someone threw it away accidentally, etc.

      Bottom line is they are in a bind now and need to move quickly.

      Have them get with a lawyer — if they want to discuss with us call 205-879-2447 and ask to speak to Carolyn.

      Best wishes….

      John Watts

  43. Jake Smithsona says:

    I was sued by Midland 05/2014 in small claims. I never received any statements about any money owed until I received a summons. I responded I never had signed any contract or had personal contact with Midland/ did not owe them a debt.

    I went to court and the attorney for Midland had a one page statement from a credit card that I could barely read. The summons never said anything about a credit card. I had not made a payment to this company since 09/2007. I told him I needed more than that. We agreed to continue the case and he told me to ask Midland for more info

    I requested Midland to inform if the SOL had past, a copy of a signed contract with the credit card company and/or Midland and copy of all statements.

    I received one statement dated 04/2011, a copy of a signed application for credit dated 2008 (which is not a contract, but a request for credit) and a copy of a letter Midland sent me 02/2013 to an address I had not lived at since 04/2011.

    Since they did not sue me til 05/2014, I believed the SOL has run its course since they were sending information to the wrong address. I also do not think they provide me with proof they own the debt. I also found out after I went to court that they had sent the summons by the sheriff to an address I have never lived at (which was my cousin house, which is an embarrassment).

    Thanks

    • John Watts says:

      Jake,

      You did very well to not allow a default judgment and you also went to court which is great. So many folks sued by Midland never respond, or even if they do respond, they end up not showing up at court. You avoided both of those dangers so I want to congratulate you for that.

      I agree with you on the SOL as I believe it is 3 years. Now, the collection agencies claim it is 6 years but I don’t think this is correct.

      Beyond all of this, however, remember Midland must prove it OWNS the debt. If it does not, then no need to even get to the SOL as Midland must own the debt to have any chance of winning against you.

      If you want to chat before your next trial date, give us a call at 205-879-2447 and Carolyn in my office will set up a call with you to go over your options and give you some thoughts about trying the case. I also have a report that helps you understand the more common mistakes people make when testifying so you can avoid those and improve your chances of winning at trial.

      Best wishes

      John Watts
      205-879-2447

      • Jake Smithsona says:

        I won. My case was dismissed.

        • John Watts says:

          Congrats!!

          Was it dismissed with prejudice?

          Did you do a stipulation of dismissal or did Midland just dismiss the case on its own?

          Give us a call at 205-879-2447 and we can help you think through your options now that the case is dismissed.

          Again congrats!!!

          John Watts

  44. Jake Smithsona says:

    That was supposed to be payment since 09/2010.

  45. My aunt is threatening to sue me for a loan she made to me over 10 years ago. I tried to settle with her but she is refusing my offer and wants the balance in a lump sum. I have no way of doing that. Has the SOL expired for a personal loan?

    • John Watts says:

      Becky,

      I’m not sure where you live or when you stopped making payments, etc.

      All those factors go into whether the loan is still enforceable.

      I would get with a consumer lawyer in your state and show the actual loan document (if there is one) so you can get an actual opinion.

      Best wishes

      John Watts

  46. Dawn V. says:

    I have two rental houses in Birmingham that I own in my personal name. I live in NY. After losing my job in November 2011 and the houses being vacant and vandalized, I could no longer pay either of the mortgages on the houses as of the October 2012 payments (last payments were 9/1/12).

    I have tried to do short sales and also offered on numerous occasions to do a deed in lieu of foreclosure on each house with the bank. (Original mortgages were with local Birmingham bank – Superior Bank, who went out of business and was taken over by Cadence Bank. Cadence has since transferred (I believe just) the servicing to Round Point Mortgage.) I also tried to get loan modifications before that, but those went nowhere.

    Round Point originally came back and approved the short sale (on one of the houses) with no deficiency judgment. When I questioned something that didn’t make sense in the paperwork, they came back the next day and said, “Sorry, that was the wrong paperwork we sent you. Here’s the correct paperwork.” The updated paperwork included that I would still being responsible to pay for the full balance of the mortgage, with payments to start a month or so after closing. I informed them of my very poor financial situation. They verbally reduced the amount slightly, but it would still be a lot more than I could afford so I did not go forward. The Round Point rep indicated that I should go forward because then the debt would not be secured by anything.

    They haven’t foreclosed yet, but I’m assuming they will at some point.

    I am assuming this has a 6-year Statute of Limitations, but can you tell me when the 6-year timeframe starts in this case?

    Thanks for any assistance you can provide.

    • John Watts says:

      Dawn,

      I’m sorry you are in this position.

      The SOL (Statute of Limitations) is a bit tricky sometimes on fixed loans. As often each missed payment starts a new time period. Once the “acceleration” happens and the whole loan is due then that is normally when you can start the clock for good on the 6 years. Sometimes the documents (note/mortgage) have a different time period but in most cases it is 6 years.

      Has there been a foreclosure set?

      Did you ever live in these houses or were they always rental houses?

      Let us know if we can help you — we can set up an actual consultation and get the details on your situation so we can give you actual advice. 205-879-2447.

      Best wishes on this tough situation.

      John Watts

  47. Lisa Steele says:

    My question is this. I was involved in a parking lot accident in August 2007. I was not employed at the time and did not have a license due to the fact I only had an out of state driver’s permit. I was guilty of causing the accident and had no problem admitting that in court. The judgment came in March 2008 from Alpha insurance the amount of $2138 which included cost of damages, court cost,any interest and attorney fees. I received a letter from their attorney stating that their was 0% interest. I had contacted them several times and they we erected unwilling to make payment arrangements or even later settle for a lesser amount. The problem is even with writing, calling, and email I was unable to get a response. Now it is over 7 years later and the debt in nearly $4000 because about 6 months after receiving 1st letter stating 0% interest I began receiving a letter stating 13% interest. What if anything can I do? Their attorney that I keep trying to contact is Chamblee Math & Carr in Montgomery.

    • John Watts says:

      Lisa,

      Sorry you are dealing with this.

      Not sure on the difference in interest rate — do you still have the two letters?

      Do you have money to settle in a lump sum?

      Can you make monthly payments?

      Give us a call at 205-879-2447 if you want to chat about some options if you live in Alabama

      Thanks!

      John Watts

  48. Latosha says:

    I have a medical bill last payment made by my medical insurance 10/16/2012. A judgment was delivered to my job 10/29/2014 but dated 10/15/2014. The SOL for Arkansas is 2 years, is the SOL up on this bill or did they beat it by 1 day. Can they still sue me?

    • John Watts says:

      Latosha,

      I don’t practice in Arkansas so I don’t know the details there but it looks like they may have filed it in time. Definitely get with an Arkansas consumer lawyer ASAP to find out your rights.

      Sorry I can’t help you directly.

      John Watts

  49. Lisa says:

    Helo John
    I live in alabama I got credit card debt on several cards, the last payment I made on these accounts were in nov of 2008. Van ru and midland are sending me letters to settle debt at 70%. I have no communication with any debt collecter. They call me once in a while and leave message about the debt. My credit report is showing the last payment made on accounts was oct 16 2008 and on two cards showing nov 20 2008. Credit report also shows all of them will go away in 2015 from my credit report.
    Midland is sending letters to settle for Bank of America and chase , van ru is not stating what credit card they are calling about,they just leave message that states this is debt collector.
    My question is can they legally sue me for debt since statue of limitation is passed 6 years. Is there anything I can do to stop them calling me.

    Thank you

    • John Watts says:

      Lisa,

      If you have not been sued within 6 years of your last payment, then you should be in good shape as far as NOT being sued.

      Now a debt collector CAN collect after the time to sue has passed but they often violate the law when doing this.

      If they threaten to sue you, this is a lie as they can’t.

      If they threaten to credit report you after 2015 (when they should drop off) then this is illegal also.

      Give us a call at 205-879-2447 and we’ll be glad to help you think through your options. Sometimes it makes sense to ask them over the phone to leave you alone — sometimes we use a letter — sometimes they have already violated the law so you sue them in federal court. All different options based on what they have done or not done to you.

      Thanks for your comment/question!

      John Watts

  50. lee says:

    John,

    My question involves the renewing of statue of limitations on debt in AL. On a credit card, the statute is 3 years, given that the time as passed. Does making one or two payments renew the statute or restart the statute?

    Thanks,
    Lee

    • John Watts says:

      Lee,

      There is an argument on whether it is 3 or 6 but let’s go with 3 for this question. I do believe it is 3 I just wanted to point out collection lawyers feel differently.

      If you make a new payment on the debt, the collection lawyers and debt buyers will argue you have “restarted” or “renewed” the time period. It is not quite that simple.

      Without getting into all the complicated legal arguments, here is the practical impact:

      **If you have not made any payments, be very careful making payments unless you have a firm plan for how to pay the debt off and you have spoken with a consumer or financial protection lawyer in your state.

      **If you have already made payments, understand the collectors will say they are within the statute of limitations now.

      **Finally, remember that when a debt buyer (debt collector) sues you, the statute of limitations is a defense you can have but normally it is not nearly the best defense. The best defense at least when I handle these (and I’ve represented hundreds of consumers) is that the debt buyer does not own the debt.

      If the debt collector doesn’t own the debt, then the time period to sue is not important.

      If you are interested, you can watch a good overview of your five options when sued and then we can talk about details, particularly if you are going to handle the case on your own (which is often a good option to choose).

      Best wishes and let us know if we can help — 205-879-2447.

      John Watts

  51. Jennifer says:

    I have Private Student loans that are in collections/default how do I find out if I can make the case of Status of Limitations?

    • John Watts says:

      Great question Jennifer.

      Start with the contract — that’s the critical document to look at.

      Here’s what you typically look for:

      **When does the contract define you as being in “default” which is normally the “trigger” to start the statute of limitations running. Normally this will include: not paying, filing bankruptcy, moving without telling the company what your new address, etc.

      **Have you done any of the things listed in the contract that tell you that you are in default?

      **If so, when did you go in default?

      **What state law does the contract says governs the contract? Many are silent on this but sometimes they will give a particular state and that state may have a better statute of limitations than your state which can be helpful.

      **Are you dealing with the company who made you the loan or is it a different company? A debt collector? A trust like “National Collegiate Student Loan Trust” or something similar to this?

      **Look at your credit reports to see who is reporting, what they say about when you paid or stopped paying, and how do the amounts compare with what you have? You can go to http://www.AnnualCreditReport.com to get your reports for free every 12 months.

      I hope this is helpful — if you live in Alabama feel free to call us if you have more questions — 205-879-2447.

      Thanks!

      John Watts

  52. Dan says:

    Motion to dismiss because on its face the claim is time-barred – is that a valid response to a lawsuit?

    If not, would it be valid to file a motion to dismiss because the court lacks subject matter jurisdiction?

    • John Watts says:

      Dan,

      In Alabama it is fine to file a motion to dismiss as long as you do so in the time limits. Usually this doesn’t work, however, so be aware that you will likely need to go further in the case.

      As far as lacking subject matter jurisdiction — that means the case cannot be brought in the court. Whether you as the defendant (the one sued) has a valid defense (such as statute of limitations) does not have any bearing on whether the court has jurisdiction.

      In state court it is rare for a court to lack subject matter jurisdiction.

      If you would like to chat, watch our video on your options and then call us at 205-879-2447 and Carolyn can set you up a call with me.

      Best wishes!

      John Watts

  53. Chris says:

    I received papers from small claims court dating I’m being sued by Midland for a debt to Dell Financial Services. I received these papers in Dec.2014 but in the papers it says file claimed in Oct. 2012. For SOL which of these dates apply?

    • John Watts says:

      Chris,

      The SOL date is when the lawsuit was filed. Now it’s unusual to not have been served for over 2 years so that is something we would want to look at.

      Two suggestions:

      Watch our video on your five options

      and

      After you watch the video, if you have questions or want us to help you think through your options, give us a call at 205-879-2447 and we’ll be glad to help you.

      Thanks for your comment and have a great new years!

      John Watts

  54. Ronald Watkins says:

    Are the Statute of Limitations for a credit card in an LLC’s name the same as individuals? I am assuming it is 3 years – open ended. Also, do any of the Federal Laws such as FDCPA apply to collectors calling a business collecting a debt that is 5.5 years old since last payment?

    • John Watts says:

      Ronald,

      Great questions.

      The statute of limitation is the same regardless of who took out the debt (individual or LLC). The debate is whether it is 3 years or 6 years. We say 3 years — the collection lawyers say 6 years.

      The FDCPA ONLY applies to individuals and to non business debt so if collectors are calling on the LLC debt and it is a business debt, then the FDCPA would not apply. Keep in mind there are sometimes subtle distinctions and exceptions but in general the FDCPA only applies to consumers and consumer debt, not businesses and business debt.

      One thing to keep in mind is even if the FDCPA does not apply, you may have state laws that apply and the contract between the LLC and the credit card company may say the laws of, for example, Florida apply. Florida has a state law that basically is the same as the FDCPA but it applies to original creditors. I don’t know if it would apply in your situation or not.

      My suggestion is get with a lawyer who does this type of work in your state and also document what is happening with the collection calls. Are they professional? Hostile? Threatening? Be very specific and then the lawyer can help you figure out what options you have.

      If you are in Alabama feel free to give us a call at 205-879-2447.

      Best wishes and thanks for the great questions — I don’t think we have been asked those questions before so I’m sure your questions will be helpful to other folks.

      John Watts

  55. Peggy Dell says:

    I received a letter from a collection company regarding a debt with a college from 1995, it is now 2015. The school stated that they had to repay money they received because I withdrew and had received the money they were given. I went to another college and am still paying on my school loans, they are all up to date and the NSDLS stated they have no record of my owing this college any money, and that all of my school loans are currently up to date. The college stated when I called that they are a state institution and are not governed by the SOL, is this true?

    • John Watts says:

      Peggy,

      Thank you for your comment and your questions.

      So is the college saying to you that you received a student loan, you used the money, but then withdrew so the college had to somehow pay the money back?

      Do you have any memory of this loan?

      If you do, was it a private or federal loan?

      Normally only federal student loans have no statute of limitation. Private loans do you have a statute of limitation just like any other type of private loan that you might take out from a bank or lending institution.

      Here’s my suggestion.

      First, get with a consumer lawyer in your state as I can only speak to Alabama issues.

      Second, ask the collection agency to send you proof in writing about what this debt is, when you took it out, and why they believe that you still owe this debt after 20 years. Sometimes putting the pressure on the collection agency to explain themselves in writing causes them to realize that you will not simply roll over and pay them money. This is especially true when we’re dealing with debts that are beyond the statute of limitation. The collectors feel that they can force you, intimidate you, or trick you into making a payment which may restart the statute of limitations so that they can then look to sue you if you don’t pay off the rest of the debt.

      The bottom line is you need to get more information so you can decide which course of action to take. My gut feeling is that this is too long ago for you to have any liability for it and I’m not familiar with the statue limitations not applying simply because you are dealing with a state institution.

      I hope this helps you and if you live in Alabama, feel free to get in touch with us directly and we can go over the details because I feel very confident that in Alabama, this collection agency is going to have difficulty legally collecting this debt.

      Thanks again for your comment and your questions and let us know how all this turns out for you.

      John Watts
      205-879-2447

  56. Deborah Talley says:

    I have received a couple letters from Midland stating they are thinking about sueing me on a old Citicard. My credit report does not show Citicard anymore, it has dropped off my report. I am almost certain the Sol of 6 years is past. I can’t find proof of this. What are my chances of being sued? Also I have a Marvin’s acct that has not been payed on since 2006 and it is still showing on my reports. I disputed it and it was sold to a new jdb. Should they have been removed from my reports by now?

    • John Watts says:

      Deborah,

      Assuming you live in Alabama here are some general thoughts for you:

      **Midland will normally sue up to about 5.5 years. They normally don’t sue over 6 years so if you are beyond 6 years I think it is unlikely you will be sued. You need to look at all communications, payment history, etc. to know this for certain but sounds like you are in pretty good shape if no payments in over 6 years.

      **On Marvins, it can stay on your credit report for 7.5 years after missing a payment. Technical answer is 7 years after major delinquency which is normally 6 months so this is why I say 7.5 years. If it is still on there since 2006 then something is wrong. If a new junk debt buyer (JDB) is on there for the Marvins account this is wrong also if your 2006 date is correct. I suggest getting with a lawyer — if in Alabama you can call us at 205-879-2447 — as you may want to dispute or may want to sue the JDB directly. This is a strategy question that depends on your exact circumstances.

      Overall I think you are in good shape but you need to take some action on the Marvins/JDB account.

      Let us know if we can help you.

      205-879-2447

      Thanks!

      John Watts

  57. Kevin says:

    I received a summon on 2/6/2015 for an apartment I stayed in around 2007. Due to the fact I lost my job I got evicted but I had spoke with the land Lord to let them know my situation. An ways its 2015 now and the summon has on it as a process of garnishment as a bank being the garnishee. And that the date of judgement was from 1/4/2008. I have never received a summon until now or have I ever been warned of anything. I call the clerk office of the court that sent the summon and they give me the attorney office number of the plaintiff which are the apartment owners. The attorney was very rude and said that they tried to get in contact with me and that they have served me before which was a lie. And that I can’t do nothing about it and get a lawyer if I wanted but they couldn’t do anything either. My saving account has been garnished and put on hold. And my accounts are with the bank who are the garnishee. My checking account has not been put on hold yet but I have my tax refund being direct deposited into my checking account. I’m unemployed and that money is all I have to look forward to. Im lost and confused and don’t know what I need to do. This debt is not on my credit report and it should have been past the statue of limitation. I was never notified of any court day and I feel like I’m being charged without even defending myself. What can I do. Before they get all my money. I live in the state of Alabama and could use your advice. Thanks

    • John Watts says:

      Kevin,

      I’m sorry you are dealing with this.

      Here’s the critical issue — what everything turns on — “Were you served?”

      If yes, then the garnishment is proper.

      If no, then the judgment should be “vacated” or “set aside” and then there is no basis for the garnishment.

      If you want, call 205-879-2447 and ask Carolyn in my office to look up your case and see if it shows how you were supposedly served.

      After you know this, if you still believe you were not served, then you can fight the judgment to get it set aside.

      No judgment is valid in Alabama when you were not properly served.

      Normally to be properly served means:

      1. Served by certified mail
      2. Personally served
      3. Someone in your residence — an adult who lives there — was served

      There are a few exceptions but this is the general idea.

      We have helped a lot of folks set aside judgments when they were never served so it is possible. Not easy but possible.

      Give Carolyn a call at 205-879-2447 and she can see if we can get you the answer to how the court believes you were served. If not then you would need to go to the courthouse to physically pull your file and see what it shows on the service.

      Best wishes and thanks for the question/comment.

      John Watts

  58. Mamie says:

    I received a collection bill from a debt collector for a credit card that I have not paid on since early 2006, maybe late 2005. Can you tell me what I need to do? And what my rights are? Thanks.

    • John Watts says:

      Mamie,

      I’m going to assume you are in Alabama.

      Let’s look at this several ways.

      First, the time period to sue you is six years at the most from your last payment. So if you were going to be sued, this should have been done in 2011 or 2012. If you have not been sued, then I don’t think you will be at this point.

      Second, the time to credit report is 7 years from when you had your first major delinquency. Normally this is 6 months from last payment. So this should not be on your credit report anytime after about 2013 or 2014 at the latest.

      Third, a collector can sometimes collect after the above time periods BUT it cannot threaten or imply it will sue or credit report.

      If you would like to chat about this with us, give my office a call at 205-879-2447 and ask Carolyn to get us a phone appointment (it will be with me or with my law partner Stan Herring) to discuss your options. If the collector is breaking the law, the best response is normally to sue in Federal Court for money damages.

      Thanks and best wishes!

      John Watts

      • Mamie says:

        Thanks, I will call soon.

        There was actually 2 letters.
        One was Capitol one and the other was at & t.
        I don’t think they on my credit because I recently applied and received a store credit card. I am trying to rebuild my credit After losing my job in 2006.

        Thanks again.

        • John Watts says:

          Welcome….

          You can check your credit reports for free at http://www.AnnualCreditReport.com and save them to PDF so you can look at them later.

          Be glad to chat — have a great week!

          John Watts

          • Mamie says:

            Mr. Watts,
            I called your office. Hoping that you call me back soon. I received a call from ADL Services. Not sure if they are legit. They are trying to collect on a credit card that I stopped paying in 2005, but they say I last paid on it in April 2008, which is a lie. They also said they sent paper work to the county courthouse but couldn’t tell me which county courthouse. And when I told her the statute of limitations ran out and asked her name again, she hung up on me.

          • John Watts says:

            Mamie,

            Carolyn in my office will call you back if y’all haven’t spoken yet.

            Sounds like a bogus place if they threatened you with court papers and wouldn’t give you info.

            If they call back ask them to send you info in writing. You should also check your credit reports to make sure they are not reporting this debt — it is way too late to report but sometimes they do something called “re-aging” where the collector lies to Equifax, etc. and says it is a newer debt than it really is.

            Kind of like me telling folks I’m 24 instead of 44. :)

            Be glad to help you — feel free to call back and speak to Carolyn (205-879-2447) and she can set you up a call or meeting with Stan Herring — my law partner — or with me.

            Thanks for calling and for your comment!

            John Watts

  59. Donna J says:

    John,

    What is debt that is owed to a country club? Would that be considered an ‘open account”? Thanks.

    • John Watts says:

      Donna,

      Probably would be an open account. I’ve never been a part of a country club so don’t know if this is typically done by written contract or it is simply billed on a monthly or yearly basis depending on usage.

      If there is a written contract, then probably will be a breach of contract which is 6 years in Alabama instead of the 3 years for an open account.

      Hope this helps and thanks for the question!

      John Watts

  60. MMitchell says:

    John,
    I have received a phone call and letter from Nathan & Nathan in Birmingham about a debt that has fallen off my credit report.

    This was a private student loan that I took out back in 2006. I graduated in 2009. I did make payments on it and then they stopped withdrawing the payments (National Collegiate) from my checking account the year the debt fell off my credit report. Which was 2014.
    Now Nathan & Nathan is trying to collect this debt.

    I can’t remember who I actually got my loan through. I did not know in the beginning to ask for a copy of the contract showing they owe the debt. When I did ask them they never could provide me a copy of it.

    My question is does Nathan and Nathan have any legal rights to sue me or come after me for this debt since this is no longer on my credit report?

    • John Watts says:

      MMitchell,

      Thanks for your comment and question.

      Private student loans are subject to a statute of limitations (SOL) defense — this is different than federal student loans.

      So this leads to several implications.

      First, we need to know when the loan went into default. This is normally what triggers the starting of the SOL. Default means not making a required payment or doing anything else that the contract defines as being in default.

      Second, when did you stop making payments? Sounds like maybe 2014.

      If that is the case then it is unlikely you will have a SOL defense.

      Third, I would ask Nathan & Nathan (Birmingham collection lawfirm) to send you a copy of the contract. Ask them in writing.

      Fourth, the fact that the debt has fallen off of your credit report does NOT control whether Nathan and Nathan can sue for National Collegiate Student Loan Trust. These are two separate time periods — time to credit report and the time to sue.

      Finally, I’ll be happy to go over your options with you by phone — give us a call at 205-879-2447 and ask for Carolyn. She will be glad to set up a convenient time to chat and we can help you figure out what’s best for you.

      Thanks

      John Watts

  61. Teigh says:

    I was sued a year ago in small claims court by AmEx…the legalities, motions etc. are still in the process mode. My question is this account will be SOL in July 2015..if the suit continues past that date can I claim SOL??

    Thanks

    • John Watts says:

      Teigh,

      In Alabama the statute of limitations (SOL) comes into play when the lawsuit is filed. So a plaintiff, the person suing you, can sue the day before the SOL expires and the lawsuit may take a year or two to get resolved. That’s ok — the question is whether it was filed before the SOL.

      Hope this helps and thanks for your good comment and question!

      John

  62. Danae says:

    I am being sued by Unifund CCR, LLC. The original creditor is citibank. A credit card account not a student loan. My last date of payment is June 10th 2009 so it has been over 3 years and about 5.5 years. I plan on sending in my answer but don’t know what to put as their complaint states that pursuant to the card agreement and/or applicable law I was required to notify Issuer of any disputes and failure to do so constitues an admission of the account balance. Also states to the best of plaintiff’s knowledge and belief, defendent did not send to the issuer or plantiff any disputes. It goes on to say the issuance of the credit card constitutes the offer of a contract and it is a breach of contract. I know sol is 3 years and 6 years on contracts. Is this credit card really considered a breach of contract or can I answer with sol has ran out? Really don’t know what to write. Thanks in advance.

    • John Watts says:

      Danae,

      I assume you have been sued in Alabama. Few thoughts for you.

      The argument that the Zarzaur lawfirm makes in their lawsuit is a bogus one that you have 60 days to dispute or if you don’t dispute you admit you owe the balance. That is an intentional or unintentional confusion of the laws.

      The Fair Credit Billing Act (FCBA) does require a dispute by a certain point but if you don’t do it, this means NOTHING on whether you admit owing the debt. The law itself says this but for some reason their lawsuits say or imply otherwise.

      Unifund almost always sues after the 3 year “open account” statute of limitations has expired. So this is why they sue under breach of contract (6 years) or account stated (6 years).

      I don’t believe those are valid theories but Unifund sues under those to try to avoid the statute of limitation.

      Here’s the most important part — much more important than the statute of limitations.

      Unifund must prove it owns the debt.

      Seems so simple — after all if they bought the debt, then they should be able to prove it. But this is something that debt buyers struggle with proving.

      Three suggestions for you.

      FIRST, make sure you get an answer filed in the time limit — 14 days from service if sued in small claims or district court and 30 days from service if sued in circuit court. This is true whether you do handle this case on your own or if you hire a lawyer.

      SECOND, watch one of our videos on your five options. The one on this page is a long one but it answers a lot of questions you will likely have. The link under the video is shorter — 24 minutes — and it is focused only on your 5 options when sued. http://www.alabamaconsumer.com/2014/09/5-options-sued-debt-collector-alabama/

      THIRD, feel free to call my office at 205-879-2447 and speak with Carolyn. She can set you up a call with me and we can help you discover which option is the best for you. As I’m writing this we have several Unifund cases we are defending and I’ve been dealing with Unifund for many years where we defend folks and where we have sued Unifund. So I’ll be happy to answer any questions you have.

      Best wishes and feel free to watch that video (http://www.alabamaconsumer.com/2014/09/5-options-sued-debt-collector-alabama/) and to call us at 205-879-2447.

      John Watts

  63. Danae says:

    Thanks Mr. Watts! Can I check deny responsible for debt box then attach an answer to each of their complaints numbered 1-12 as they have stated? Also can it be handwritten or does it have to be typed? I am hand delivering either tomorrow or Thursday as my 14 days ends Friday.

    • John Watts says:

      Danae,

      You can handwrite it — nothing has to be overly formal. Main thing is to deny it (unless you agree you owe Unifund — don’t know how you could possibly know that….) and get it filed.

      Yes you can attach an answer to the one from the court. I take it you were sued in small claims court?

      Get in touch with us as if you are handling this on your own we can get you some resources to help you.

      205-879-2447

      Thanks!

      John Watts

  64. Danae says:

    As the defendant am I required to send a date stamped copy of my answer to the debt collectors attorney? The address the attorney gave was a p.o. Box. Since my deadline is tomorrow I find the attorney’s physical office address and mailed it next day with request for signature. Was this okay to do? I thought sending it to the p.o. Box I would not know if it was recieved. Prior to this I filed my answer with the clerks office by hand delivery.

    I stated several affirmative defenses such as :

    Lack of standing
    Section 809 (c) of FDCPA
    Plaintiff failed to state alleged contract was entered into
    Plaintiff failed to state date alleged contract was breached
    Time barred Al code section 6-2-37
    Lack of privity
    No damage to Plaintiff
    Plaintiff failed to describe details and terms of alleged contract
    Failure of consideration
    Failure to state claim due to insufficient facts and evidence

    I asked the court dismiss the Plaintiff’s complaint and that the Plaintiff recover nothing.

    Does sound okay. I’m praying I can adquately defend myself. Thanks again.

    • John Watts says:

      Danae,

      Defending yourself can be a good option — if you really want to do this you need to understand the big picture. I think you may be focusing on the details right now which is good but only if you understand the big picture.

      Call my firm at 205-879-2447 and we’ll send you some materials that will help you to defend yourself.

      Best of success!

      John Watts

  65. Michael says:

    I have a company calling my parents with a case number saying are fixing to have me locked up it is a credit card from 2004 or 2005.can they have me locked they have been to my house to serve me pepers what do I need to do

    • John Watts says:

      Michael,

      If you live in Alabama then I can’t imagine this is true. We don’t arrest people for not paying a credit card. Normally when you get these calls, it is a scam.

      Here’s my suggestion:

      **Call the collector
      **Ask that they send you proof in writing BY US MAIL (not fax, not email, etc)

      In every situation that I know of, doing this causes the collector to go crazy but leave you alone. They will yell that you don’t have a right to anything in the mail, that you have violated laws, you are harassing them (ironic, eh?), etc.

      A true collector will give you their name, business address, and will happily mail you a letter explaining what you owe and why you supposedly owe it. The scam places won’t. They don’t want to have their fraudulent activities go by mail across state lines….

      Keep us posted and if you learn the name, feel free to post it here as that will help others in your situation.

      If you do live in Alabama and want to chat, feel free to call our office at 205-879-2447.

      Best wishes!

      John Watts

      • Mamie says:

        This sounds like what happened to me a few weeks ago. But no one came to my house.

        • John Watts says:

          Thanks Mamie for your comment. A real debt collector who is suing will have you served — the fake scammy ones won’t. Were you threatened with being sued?

          Thanks

          John Watts

  66. Michael says:

    They said they have come to my house to serve me I do not believe that I am tired of them calling my parents over a credit card this old and saying they are putting out a warrant to have me locked up what do I need to do

  67. Abbey says:

    I have a debt collector contacting my husband in regards to a debt that he doesn’t remember that is from 2004. They are threatening to serve papers to take him to court (this is a collector and not the company where said loan is originated), etc. Said they could come to some settlement but were trying to make an immediate agreement and also asked for a debit/credit card to be provided in order to be able to make settlement agreement.

    What do we need to do about this and could this affect me as his spouse (only been married 2 years). PLEASE advise ASAP!

    • John Watts says:

      Abbey,

      If you live in Alabama, that will most likely be beyond the statute of limitations so too late to sue. If that is true, then it is illegal to threaten to sue.

      What is the name of the company?

      Feel free to call us at 205-879-2447 and ask for Carolyn and she can get further details and we’ll be happy to help you. It may be we need to sue this company to get them to leave you and your husband alone….

      Thanks!

      John Watts

  68. harold morris says:

    i was just served papers for debts that are over 5 years old, the attorney filed the suit 5 days before the 5 year statute of limitations but i wasn’t served until a month after the statute ran out. do i have any recourse using the statute of limitations or since they filed before the five years even though it has since past are they within their rights ?

    • John Watts says:

      Harold,

      Thanks for your question. In Alabama (and I assume in most other states), the time we look at the statute of limitations is when suit is filed, not when the consumer is served. There are some limited exceptions but this is the general rule.

      So if the plaintiff (the one filing suit) did so BEFORE the statute of limitations expired, then the plaintiff should be ok. Do remember if you are dealing with a debt buyer, even more important that the statute of limitations is whether the debt buyer (debt collector) can prove it OWNS the debt. This is a place where almost all debt buyers stumble but most consumers (and consumer attorneys) fail to focus on….

      Thanks for your comment and question and I hope the answer helps.

      John Watts
      205-879-2447

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