You are here:

Collections Law/Debt collection confusion

Advertisement


Question
QUESTION: I have credit cards that are in collections. In NH the SOL is 3 yrs and 6 yrs has passed , am I correct that if they bring me to court I do not have to enter into a repayment plan?   And that the only way they could collect is if I fall for the tricks of the demanding letters/phone calls, which I can then write a cease and desist letter?       My confusion is mainly the part where the SOL ends and the cease and desist letters, how could they even begin to collect if these 2 things happened? Unless I am mis understand the SOL, which I thought meant they can not bringme to court and have the judge order a repayment plan, so they then try to scare people into a repayment plan with the calls/letters and if a repayment plan is put in place the SOL starts all over again.         I hope I made some sense in the few questions that are jumbled in this message/

ANSWER: Hi Mark:    I will reprint your question and then answer the specific parts.

I have credit cards that are in collections. In NH the SOL is 3 yrs and 6 yrs has passed , am I correct that if they bring me to court I do not have to enter into a repayment plan?   If the SOL has passed (and it is calculated from the day that the last payment or purchase was made until the date that they filed the lawsuit, and there are exceptions to the SOL that can occur depending on facts you do not state in your question), then if you handle your defense correctly, you can have the lawsuit dismissed based on the affirmative defense of limitations.   Whoever told you that a repayment plan has anaything to do with this is mistaken.   In fact, if you make even the smallest payment at this point, you will be said to have waived that defense.


And that the only way they could collect is if I fall for the tricks of the demanding letters/phone calls, which I can then write a cease and desist letter?   

For bill collectors, dishonesty is the rule rather than the exception.   You can't trust ANYTHING that they tell you.    Insofar as a cease and desist letter goes (pursuant to the federal Fair Credit Reporting Act and the Fair Debt Collection Practices Act), whether a cease and desist letter would work or not again depends on facts you don't state in your question.   for example, in this respect, commercial debtors have less rights than private individuals, and also the type of entity that is collecting also makes a difference.    If it is the primary creditor, the federal law dealing with cease and desist letters does not apply.   These laws only apply to people that are in the business of collecting for third parties.


   My confusion is mainly the part where the SOL ends and the cease and desist letters, how could they even begin to collect if these 2 things happened? Unless I am mis understand the SOL, which I thought meant they can not bringme to court and have the judge order a repayment plan, so they then try to scare people into a repayment plan with the calls/letters and if a repayment plan is put in place the SOL starts all over again.      

We discussed this above.    Also, it is important to note that if the limitations period has run, it isn't that they cannot sue you, but instead if you raise the issue properly in your defense whether the case should then be dismissed.   If you waive the SOL or do not assert your defense properly, even for an old debt, then they can get a judgment against you if you are not careful.


  I hope I made some sense in the few questions that are jumbled in this message/

You did fine, in fact, better than most in explaining what you are asking.  Unfortunately, you do not provide enough information for me to give you any more solid answers.    This would be easier to talk about on the telephone.  I will not charge you just to talk on the phone.   You can call me at the number indicated below anytime.   We can also discuss other options you might have that are better than just waiting for them to sue you while they continue to harass you for the debt.

Jack Hall    J.D.
jackhallbk@aol.com
915  261-3893

---------- FOLLOW-UP ----------

QUESTION: Hi there, I really don't think I need to call you , I think you answered my questions and I do believe I will be okay. Recap: the credit cards are in collections. 6 years have passed and no one has tried to sue me, no harassing phone calls, and barely a letter over these past years.
Okay,  I think I understand about the SOL better from your answer if I interpreted it correctly.... even if there is NOT a repayment plan , if I sent in a small payment on my own that resets the SOL and I can not use that as a defense. Do I understand correctly that if it is the original creditor, the cease and desist letters do not apply, ok, mine are in collections so the letters would apply?  Is it true if I even admit to them the debt is mine then that can potentially reset the SOL?        Is it true they can come after you for years on end but usually don't after so many years or is there a time frame in which they have to stop trying to collect or can they actually call me out of the blue years down the line? Lastly , can they find out I am on disability and the amount I receive?      If so would the small amount I receive kind of determine if they think I am worth pursing? I am not really worried, probably now I jinxed myself, 1 more year and they will fall off my reports , and hopefully they will give up on me, not that they have really tried, In the past 6 years , 5 and 1/2 of those I became on disability. And I could count on 1 hand the letters and the other hand the phone calls, so it doesn't  seem they want "me" very badly....Thanks and Yes I will rate you after this answer, I do not  have any follow up questions.

Answer
QUESTION: Hi there, I really don't think I need to call you , I think you answered my questions and I do believe I will be okay.

The reason I asked you to call me is because it takes way more time to type up an answer to you than it does to just tell you on the phone.

Recap: the credit cards are in collections. 6 years have passed and no one has tried to sue me, no harassing phone calls, and barely a letter over these past years.
Okay,  I think I understand about the SOL better from your answer if I interpreted it correctly.... even if there is NOT a repayment plan , if I sent in a small payment on my own that resets the SOL and I can not use that as a defense. Do I understand correctly that if it is the original creditor, the cease and desist letters do not apply, ok, mine are in collections so the letters would apply?  

Depends.   If it is just in collections internally to the original creditor's own office, then the cease and desist option is not available.    If it has been assigned or transferred to another entity, of if it is another entity that is doing the collecting, then the FCRA and FDCPA would apply and so would the cease and desist letter option.


Is it true if I even admit to them the debt is mine then that can potentially reset the SOL?    

No.   That would have no bearing on the establishment or the enforcement of this debt.


   Is it true they can come after you for years on end but usually don't after so many years or is there a time frame in which they have to stop trying to collect or can they actually call me out of the blue years down the line?

I have seen that happen (out of the blue years later).   Without a crystal ball to tell the future there is no telling.


Lastly , can they find out I am on disability and the amount I receive?      

Possible.



If so would the small amount I receive kind of determine if they think I am worth pursing?

It is a judgment call and some of these collectors don't have very good judgment.    There is no telling whether they will decide to sue or collect and how long they will wait to do it.


I am not really worried, probably now I jinxed myself, 1 more year and they will fall off my reports , and hopefully they will give up on me, not that they have really tried, In the past 6 years , 5 and 1/2 of those I became on disability. And I could count on 1 hand the letters and the other hand the phone calls, so it doesn't  seem they want "me" very badly....Thanks and Yes I will rate you after this answer, I do not  have any follow up questions.

Collections Law

All Answers


Answers by Expert:


Ask Experts

Volunteer


Bankruptcy Services

Expertise

If you have been served with a summons and complaint, I can answer questions about what your options are and what you can expect to occur.

Experience

Experience with many lawsuits over the past 30 years.

Education/Credentials
Law Degree (J.D.); Bachelors Degree

©2016 About.com. All rights reserved.