Expert: Regan Shinski - 11/2/2010

Question
Recently, I started receiving phone calls from collections agency on a Capital One account that,by their own admission is from 1998. I cannot confirm or deny this to be true debt.. I don't remember. I do know that I did have a card from this company and countless others in the very early 90's Due to being young and stupid,I had accumulated thousands of dollars in debt, and after much deliberation, I had no other choice than to file bankruptcy in the mid 90's. The Capitol One account was listed as one of the creditors. To the best of my knowledge, this is the only time I have ever had a Capitol One credit card. In 2001, I received a large settlement from a near- fatal motorcycle accident I was involved in, and paid off whatever debt I had, in full, with the companies themselves.
In 2004 I moved from Illinois to Colorado, and my financial records were lost. I do not have my bankruptcy papers, the release from bankruptcy, old credit card statements, anything..
Fast Forward.. This collection agency, Portfolio Recovery Services, starts calling my mother's house, looking for me.. I happened to be here the first couple of times they called, and they were borderline harassing, telling me not to be a "priss and own up to the debt". They've demanded that I borrow money from my mother, take out a loan, do whatever I need to do to get them "our money". I currently am only working part time, and cannot afford to pay anything, when I told them this, they went as far as to ask me how I take care of my son if I'm broke.. I'm ready to file a complaint against these intrusive tactics.. What are my options, considering I have no proof about the debt either being paid for, or being taken care of in the bankruptcy process.. Thank you very much

Answer
Hi Angelique:

I believe you are spending too much time on this.  I believe this debt is well beyond the statute of limitations in Colorado.  This is all assuming the last activity on this account dates back to 1998.  They have no legal right to collect it and you have no legal obligation to pay it.  This basically means you can tell them to take a flying leap -- if you know what I mean.

They can continue to try and collect it, hoping you are naive on your rights and make a payment.  DO NOT DO SO!!!  Paying on this account may restart the statute of limitations and then you WILL become legally obligated to pay the debt.

Again, what this means is they can continue to try and collect it but you have an affirmative defense if they sue you.  All you would have to do is show up and prove/say it was beyond the SOL and you would win the court case.  If they sue you it is CRITICAL you do show up and make this claim, otherwise they could get a judgement just because you failed to show up.

To stop the calls, simply send the collection agency a certified letter stating you want all future communications with you to be in writing.  They are allowed to call you once after receiving that notice.  Any further calls is a violation of federal law.  Give your correct new address, so if they sue you, you will know about it so you can show up and win the case.

If you want to take this a step further, you could try and legally record their calls as what they told you seems to (at best) be bordering on illegal collection activities under the fair debt collection practices act (FDCPA).  If you can record them making these statements you may have a case to sue them directly.  You can also get them on notice about it being beyond the SOL.

Again, most importantly, do not make a payment or enter into an agreement to pay and respond in the unlikely event you are sued.  You are safe if you do these things.