The Statute of Limitations for Credit Card Lawsuits in California.

It doesn’t hurt to know whether the credit card collection lawsuit against you is barred by the Statute of Limitations. You could save a pile of money.  One of the first questions I ask is: “When was your last payment.” Here’s how that question figures in:

Credit card lawsuits are based on breach of contract. The California Statute of Limitations (“SOL”) for Breach of Contract is four years.  Thus, the California SOL for credit cards is four years….. that is, unless it’s three!  It all depends on the credit card, and here’s how you know:

Some background first: The statute of limitations refers to a law which establishes the length of time an injured party has to file a lawsuit to collect damages.  In credit card cases, the clock starts ticking when you breach the credit card agreement. The breach occurs when you miss a payment and make no further payments or use of the card. From that day forward, the creditor has either three or four years – depending on the card – and not one day more, to file a collection lawsuit.  After that, a collection lawsuit becomes “time-barred” – legalese for “too late”.  Filing a lawsuit to collect a consumer debt after the expiration of the statute of limitations is a violation of both the federal and California Fair Debt Collection Practices Acts.  If you believe you have been victimized by a time-barred collection lawsuit, you can call us for a free consultation.

Here’s how the SOL is determined:

Credit card agreements contain a “Choice of Law” provision, with which the Banks choose the state whose laws govern the rights and obligations under the agreement. Bank of America, Chase Bank and Discover, for example, select the law of Delaware, where the banks are incorporated.  The Delaware statute of limitations is three years.  Thus, when you default on a Bank of America (including MBNA) , Chase, or Discover credit card, a lawsuit to enforce collection must be filed within three years of the date of default.  After that, it’s too late to sue; and, once the statute of limitations expires, a payment does not revive it.

In addition to the above, Capital One card have a three year SOL by virtue of a Virginia choice of law provision. The statute of limitations in Virginia is three years. For the other cards – American Express, Citibank, G.E. Capital, HSBC, U.S. Bank, Wells Fargo, among them – the SOL is four years.  Debt buyers “stand in the shoes” of the original creditor, so the statute of limitations isn’t changed by the purchase and sale of a debt.

Some final thoughts about the statute of limitations:

The SOL does not affect the status of the debt – that is, whether or not the debt is owed.  It speaks only to the time period during which a lawsuit can be filed to collect the debt. AND,

Abuse, misinformation and deceit are favored tactics of collectors of old, time-barred debt. They know they can’t sue to collect, so they resort to threats and harassment to separate you from your money. For example, if anyone says, ” I have a lawsuit ready to go and the police are going to bring it to your job tomorrow, if you don’t pay…..”, the debt is time-barred, almost certainly. So don’t believe them and don’t worry.

If you have any questions about the statute of limitation in your case, or collection tactics, feel free to call us toll-free at 877-551-0210.

Posted in Credit Card Lawsuits | 24 Comments

Can I Lose my Home over a Credit Card Debt?

“Can they take my home?”

That’s the first question many consumers – the worrying kind – ask me when they’ve been served with a summons in a debt collection lawsuit?

In California, the answer is: Yes, but they won’t. (Too much bad publicity!)

Debt collectors can’t do anything until they get a judgment. But, what if plaintiff get’s a judgment. What then?

Once a judgment is entered, the plaintiff/debt collector becomes a “judgment creditor” who can collect by wage garnishment or bank levy. Judgment creditors can also “secure” the judgment by recording a lien against real property. Typically, the lien just “sits” there, earning interest at 10% per year, and is paid off when the home is refinanced, sold or when the homeowner dies.

Now for the good news-bad news: In California, a judgment creditor CAN collect a lien by foreclosure. Here’s the good news: I’ve never seen this happen in a credit card case. An attorney whose firm represents one of the major credit card banks in collection lawsuits told me recently: “My client has never foreclosed over a credit cared. The negative publicity would kill them.” There is no evidence that the other big banks think differently.

Still, in California there is no guarantee. Where California is often first in the nation for new trends, it lags other states in protecting consumers from foreclosure over a credit card judgment. The most recent state to pass legislation prohibiting these foreclosures?

Hint: it’s one of the last bastions of progressive thinking…..

You’re right! ….. Louisiana.

It seems that after major debt buyer Unifund CCR Partners started foreclosing to collect credit card judgments, a law was passed to prevent the seizure of homesteads to collect consumer credit card debt.

Unifund hasn’t used foreclosure to collect credit card judgments in California, and, hopefully, the Louisiana law will “tip off” Unifund what to expect if they do. Still, why wait ’til the worst happens? Why not get out front of Unifund and its compatriot debt buyers, and catch up with them cajuns?

It’s time that California passed legislation prohibiting foreclosure to collect credit card debt.

The model is out there. Contact your local state rep.

For those who like reading legislation, here’s the Louisiana law:

Continue reading

Posted in Legislation | Leave a comment

Debt Collector Harassment. Imagine Doing This for a Living.

In our constant effort to keep pace with the latest developments in debt collector psychosis, we find recent manifestations in the following incidents. If you’re looking for debt collector harassment, you don’t have to search much further.

First a brief review: The Fair Debt Collection Practices Act (FDCPA) governs the collection of consumer debt. Among the prohibited tactics, for example, are threats. Debt collectors can’t threaten consumers, physically or financially, and, they can’t threaten to take any action which they are not legally permitted to take.

Let’s see if these qualify:

Threats to dig up dead relatives! It doesn’t get any better than this. The debt collector, collecting an unpaid funeral bill, threatened to dig up the debtors’ recently deceased children, and hang the bodies from a tree outside the debtors’ front door if the bill wasn’t paid right away. I told you this was good. So good, in fact, that it won an award of $700,000……for the debtor.

In this next one, the kids are still alive.

Threatening to take away children. The Federal Trade Commission (FTC) brought a complaint against a debt collector who reportedly told a consumer over the phone: “We can take you to jail if you don’t pay now. We will send the sheriff to your work and drag you out the door. And while you’re in jail, the police will take away your children.”

Hey, end of the day, a guy still needs to put bread on the table.

Here’s another proven fundraiser: loss of liberty.

Threatening Arrest. For a $300.00 debt which the consumer said she had already paid, the debt collector called her workplace and told her co-workers that the consumer was going to be arrested, and that they would have to come down to the station and pick her out of a lineup.

Although this makes absolutely no sense, you’re not likely to be a critical thinker, when your crime causes co-workers such an inconvenience, and places you squarely center stage. (Though, in fact, you may second from the left)

Finally, there is one episode of debt collector abuse that is so “off-the-charts” twisted, so disgusting that I don’t feel comfortable passing it along here. So we’ll just skip it.

I mean, it is so sick, that one hesitates to give it life by mentioning it. I’ve thought about this a lot, and I just can’t.

Well, okay:

The FTC reports that collectors allegedly threatened to kill a debtor’s dog if she didn’t pay. And not just kill. Specifically, the collectors told a woman that they would have her dog “arrested, then shoot him, and eat him” if she didn’t pay.

Keep in mind that in order to protect her dog from arrest, all the consumer had to do was pay. Also, the FTC used the word “allegedly”, so it probably, really, never happened. Right?

I mean, come on. Debt collectors don’t say stuff like that.

Nobody’s that psycho.

Posted in Debt Collection Tactics | 2 Comments

Problems with Cavalry ?

If you have been sued or harassed by Cavalry SPV I, LLC, or if they already have a judgment against you, we can help.

We know Cavalry well from having opposed them over the years. We also know their attorneys. As a result we have been able to generate favorable outcomes for our clients. Here’s more about them:

Cavalry Portfolio Services, LLC is a debt buyer headquartered in New York which purchases “distressed consumer loans” – fancy talk for defaulted credit card debt. When Cavalry sues, the name of the plaintiff is likely to be Cavalry SPV I, LLC. “SPV” stands for Special Purpose Vehicle, a separate subsidiary entity designed to service and collect Cavalry’s debt.

Cavalry is represented  in California primarily by the Winn Law Group in Fullerton, but some of their cases are handled by the law firm Quall-Cardot. Both firms, due to their heavy caseload, prefer to settle cases rather than take them to trial. As trial approaches both firms are willing to accept settlements which are more favorable to the consumer.

To learn how we can help you against Cavalry, please click on one of the links at the top of the page. You can also feel free to call us toll free at (877) 320-2380 for a free consultation, or you can provide your contact information to the right and we will contact you.

Posted in Debt Buyers | 4 Comments

Problems with CACH, LLC ?

If you have been sued or harassed by CACH, LLC, or if they already have a judgment against you, we can help.

We know CACH well from having opposed them over the years. As a result, we’ve been able to get our clients favorable results, either by quick settlement or by litigation, depending on their needs.  If you wish to discuss your case with us, you can call toll free, or submit your information in the form on the right and we will contact you promptly. Here’s more about CACH:

CACH, LLC is a national debt buyer located in Colorado which purchases defaulted consumer credit card debt from the major national banks, and collects for its own account.

CACH, LLC uses two law firms in California to file its debt collection lawsuits.  The Mandarich Law Group, with offices in Woodland Hills, CA and a one-lawyer satellite office in Oakland, handles most CACH cases. The Neuheisel Law Group in Sacramento also represents CACH. While each of these law firms are willing to take cases to trial, each is so overloaded with cases that they prefer to settle. As a result the best settlements often occur in the last weeks just before trial.

CACH cases suffer from the same core weaknesses as other debt buyer cases: (1) proving that the defendant owed money to the original creditor; and, (2) proving the CACH purchased the defendant’s defaulted account. Under California law, testimony from the original creditor is necessary to prove that a defendant defaulted on a credit card account and owed a debt. The large banks which sell credit card debt never make witnesses available for this purpose. CACH attempts to circumvent this requirement by substituting its own witness. Although such testimony is not legally sufficient, this tactic can be successful before a biased judge who doesn’t apply the law. Unfortunately, there are many of these jurists out there. With a “good” judge, you can beat CACH at trial. With a “bad” one…no chance.

One advantage negotiating settlement with Mandarich is the fact that Mandarich is over-loaded with cases and lacking in both experienced trial attorneys and CACH witnesses. They simply can’t try all their cases. Thus, their personnel shortage, combined with the risk of loss at trial, typically produces reasonable settlement offers in the days before trial.

To learn how we can help you against CACH, LLC please click on one of the links at the top of the page. You can also feel free to call us toll free at (877) 320-2380 for a free consultation, or you can provide your contact information to the right and we will contact you.

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Problems with Unifund CCR Partners ?

IF you have been sued or harassed by Unifund CCR, LLC, or, if they already have a judgment against you, we can help.

We know Unifund well from having opposed them over the years. As a result, we have been able to get our clients favorable results, either by quick settlement or by litigation, depending on their needs.  If you wish to discuss your case with us, you can call toll free, or submit your information in the form on the right and we will contact you promptly. Here’s more about Unifund:

Unifund CCP Partners, Inc. is a large national debt buyer based in Cincinnati, OH, which purchases, sells and manages “under-performing and distressed” consumer receivables, including defaulted consumer credit card accounts.

Unifund relies on two law firms primarily to file its debt collection lawsuits in California: the Fresno law firm of Lang Richert & Patch, and, from Los Angeles, Kenosian & Miele.

Unifund’s cases suffer from the same core weaknesses as other debt buyer cases: (1) proving that the defendant owed money to the original creditor; and, (2) proving the Unifund purchased the defendant’s defaulted account. Under California law, testimony from the original creditor is necessary to prove that defendant defaulted on a credit card account and owed a debt. The large banks which sell credit card debt to Unifund have not made witnesses available for this purpose, and there is no reason to expect a change. Think of it this way: What are the chances that a major national bank, dedicated to its bottom line, will fly an witness to California to testify in a trial in which the bank has no financial interest whatsoever? Let’s move on. Unifund typically attempts to circumvent this requirement with testimony from its own witness, submitted by declaration. These “declarants”, however, can be subpoenaed to trial for cross-examination. Since Unifund is similarly reluctant to incur travel expenses from Cincinnati plus lodging for its witnesses, favorable settlement offers tend to result in the days leading up to trial.

To learn how we can help you against Unifund CCR Partners, Inc. please click on one of the links at the top of the page. You can also feel free to call us toll free at (877) 320-2380 for a free consultation, or you can provide your contact information to the right and we will contact you.

Posted in Debt Buyers | 4 Comments

Problems with Portfolio Recovery Associates, LLC ?

If you have been sued or harassed by Portfolio Recovery Associates, or, if they already have a judgment against you, we can help.

We know Portfolio Recovery Associates (PRA) well from having opposed them over the years. As a result, we have been able to get our clients favorable results, either by quick settlement or by litigation, depending on their needs.  If you wish to discuss your case with us, you can call toll free, or submit your information in the form on the right and we will contact you promptly. Here’s more about PRA:

Portfolio Recovery Associates, Inc. bills itself as “a market leader in the consumer debt purchase and collection industry.” Founded in 1992,  Portfolio Recovery Associates spent $408 million buying debt with a total face value of $9.8 billion by 2011. That’s about $.04 on the dollar. By the end of 2011, the company employed more than 2,600 people in 10 states and had annual earnings of $100.8 million.

Portfolio Recovery Associates relies on several law firms to collect its debt in California, including Hunt & Henriques, Bleier $ Cox, and the Legal Recovery Law Offices of Mark Walsh.

At the outset of a case, PRA will typically demand 75% of the principle amount to settle. When faced with experienced debt defense counsel, however, Portfolios demands will shrink as trial approaches. Recently, for example, this office defended a $ 42,000 credit card collection lawsuit against Portfolio Recovery Associates. For over a year, Portfolio stuck to its settlement demand of $30,000 – just under 75%. Then, a week before trial, they settled $9,600.

In this case, about six weeks before trial, we took the deposition by PRA’s witness.Fortunately, we were able to poke several holes in their case. PRA settled for 20% of the balance sought rather than bring a weakened case to trial. (A deposition is out of court testimony taken under oath before a court reporter priro to trial. Deposition testimony can be used at trial to descredit a witness.) While depositions can be expensive, in larger cases, they are necessary in preparing for trial.

To learn how we can help you against Portfolio Recovery Associates,LLC please click on one of the links at the top of the page. You can also feel free to call us toll free at (877) 320-2380 for a free consultation, or you can provide your contact information to the right and we will contact you.

Posted in Debt Buyers | 4 Comments

Equable Ascent Financial, LLC

Equable Ascent Financial, LLC, based in Buffalo Grove, IL, is a national debt buyer and collection company which acquires defaulted consumer and business credit card debt and collects it for its own account. “Equable” – not “E-quit-able” – means: “not varying or fluctuating greatly”, as an “an equable climate”. An airplane makes an “equable ascent” to great heights, as does this company according to its ambitions, perhaps.

In California, the primary collection law firm used by Equable Ascent Financial is the Legal Recovery Law Office of Mark Walsh, located in San Diego, CA. Equable also uses the CIR Law Firm, located in San Diego as well. Equable Ascent, like all debt buyers, carries the burden at trial of proving ownership of the debt at the time of assignment for every link in the chain of title. Legally, this requires witness testimony from every prior owner of the debt, including the original creditor, usually a bank. Sadly for Equable – but not for consumers – banks don’t make their employees available to testify in collection cases in which they have no financial interest whatsoever. There’s no money in it. This weakness in Equable’s cases tends to result in a favorable settlement for defendants who are represented by competent debt defense counsel. Equable’s Illinois location is also a significant factor driving settlement. Getting to the courthouse for trial costs time and money. Equable simply cannot afford to send employees to CA to testify in every one of its hundreds, perhaps thousands, of CA cases each year. Thus, as trial approaches, Equable Ascent Financial becomes particularly amendable to settlement on favorable terms, and, even dismisses cases outright rather than go to trial.

To learn how we can help you against Equable Ascent Financial, LLC please click on one of the links at the top of the page. You can also feel free to call us toll free at (877)551-0210 for a free consultation, or you can provide your contact information to the right and we will contact you.

Posted in Uncategorized | Leave a comment

Problems with Asset Acceptance LLC ?

If you have been sued or harassed by Asset Acceptance, or, if they already have a judgment against you, we can help.

We know Asset Acceptance (AA) well from having opposed them over the years. As a result, we have been able to get our clients favorable results, either by quick settlement or by litigation, depending on their needs.  If you wish to discuss your case with us, you can call toll free, or submit your information in the form on the right and we will contact you promptly. Here’s more about AA :

Asset Acceptance, LLC, which began buying defaulted debt in 1962, was one of the oldest and largest debt-buyers in the country, until it was acquired in 2013 by Encore Capital Group, the parent company for debt buyer Midland Funding, LLC (Midland).

Asset was located in New York.  Midland operates out of San Diego, CA.. The location of the Plaintiff in a debt collection lawsuit is a significant factor bearing on settlement of a case, since getting a witness to California for trial costs time and money – especially from New York.  So, is San Diego based Midland less amenable to settlement of its Asset cases due to its proximity?  Not so far.  It seems that any benefit derived by Midland from its convenient location, is offset by the addition of a very large number of Asset cases to the already burdensome caseload of Midland Attorneys.  So, Asset is gone, but Midland will be Midland.  Go to the Midland Funding page for information on how Midland handles these cases:

http://williamroselaw.com/midland-funding-llc

Or, you can call us now toll-free at (877) 320-2380 for a free consultation. You can also submit your contact information on the right and we will contact you.

Posted in Debt Buyers | Leave a comment

Problems with Persolve, LLC ?

If you have been sued or harassed by Persolve, LLC, or, if they already have a judgment against you, we can help.

We know Persolve, LLC well from having opposed them over the years. As a result, we have been able to get our clients favorable results, either by quick settlement or by litigation, depending on their needs.  If you wish to discuss your case with us, you can call toll free, or submit your information in the form on the right and we will contact you promptly. Here’s more about Persolve:

Persolve LLC is a debt buyer located in Chatsworth, CA which purchases defaulted credit card debt to collect for its own account. In a given case, Persolve may be a first-in-line debt buyer, meaning it has purchased the debt directly from the credit card issuing bank (original creditor), or, it may be a secondary debt buyer, purchasing previously sold accounts from other debt buyers. Persolve frequently purchases debt from debt buyer Riverwalk Holdings.

To prevail in court, Persolve must prove every link in the “chain of title”. More specifically, Persolve must establish with admissible evidence that every prior owner held valid title to the debt when it sold the debt to the next “buyer” in the chain. By law, this requires testimony from each prior owner of the debt. I’ve never seen this happen. Think of it this way: What’s the likelihood that a company – especially a bank – dedicated to solely to making money, will send an employee to a trial in California, to testify in a case in which the company has no financial interest whatsoever? Thus, the more links in the chain, the more difficult it is for Persolve to prove its case.

As a result, when faced with a defense attorney who has experience trying collection cases, Persolve will settle favorably as trial approaches. Why settle at all, if Persolve can’t prove its case? Good question. Settlement eliminates risk. And there is always risk. There is an old saying: “Even the best case has a 50-50 chance of losing”. In credit card collection cases, the major risk is that you draw a judge who disregards the law…totally. That is – the outcome is a foregone conclusion. There are plenty of these judges around. Get a good judge you can win, get a bad one….forget about it.

Persolve has an in-house legal department which handles all its collection lawsuits. The “department” consisted of two attorneys, one of whom has recently left the company. Its legal staff is overloaded with cases and understaffed. Persolve simply cannot try all its cases, so it focuses on getting default judgments and trying cases against consumers who represent themselves.

To learn how we can help you against Persolve, LLC please click on one of the links at the top of the page. You can also feel free to call us toll free at (877) 320-2380 for a free consultation, or you can provide your contact information to the right and we will contact you.

Posted in Debt Buyers | 2 Comments