Friend messed up....

[Vindian]

A friend of mine got a call from an "Investigator".
The investigator had called her son and her son's wifes parents trying to get a hold of her. Don't know how they got thier numbers but they left messages that were questionable. "Need to speak to your attorney" etc etc.

Well her son called her the other day and gave her the message and the number to call. She called and they threatened to take her to court if she didn't pay. She got scared and wired a partial payment to them the next day.

This CC is out of SOL according to our states laws if she owes anything at all. She says she had a CC about 7 years ago but wasn't aware of a balance.

Has she restarted the sol by wiring the money?

[hannah]

Depends on your state's law. What state is she in?

[roybean]

First of all she needs to buy a recorder or stay off the phone. Second, she doesn't know if she owes the debt from the sound of things....don't do anything else till she gets a hard copy of her reports and don't send them another dime!

[neil5623]

Hate to say it but some people are more easily intimidated than others. My parents went through this mess a few years ago (retired, illness, worthless brother at home etc) and had to let everything go. Then the calls started. Mom panicked, dad kept having conversations with them trying to explain what happened. I kept telling him that they don't care, don't talk to them, it will make things worse. Fortunately the calls eventually stopped without them making any payment arrangements.

In TX, the SOL is re-started.

[Pale Rider]

Quote:

Originally Posted by neil5623 In TX, the SOL is re-started.

Not by payment alone. Only by a written, signed acknowledgment of the debt.

[Vindian]

She lives in MA. SOL in MA is 6 years. But like I said, she wired the money to them. They said she has to send payment every month until the balance is paid in full.

I just spoke to her and got the information. She was very intimidated. They told her if she didn't pay they were going to take her to court and the date was set for March 6th. They also stated that they would have the registration cancelled on any of her vehicles if she owned any.

She ended up spilling her guts because of thier tactics. Giving them her address, cell number and other info. But, she doesn't remember having the credit card.

[FixinThings]

In spite of what one might think of the MA Court system, they can't move that fast...and if the "plaintiff" tries, any judgment can be easily vacated.

Tell your friend to take a deep breath and start reading. They're just blowing smoke.

DV's and "inconvenient to call" notices are still appropriate. Friend needs to start building HER paper trail.

[jlynn]

Quote:

Originally Posted by Vindian She lives in MA. SOL in MA is 6 years. But like I said, she wired the money to them. They said she has to send payment every month until the balance is paid in full. I just spoke to her and got the information. She was very intimidated. They told her if she didn't pay they were going to take her to court and the date was set for March 6th. They also stated that they would have the registration cancelled on any of her vehicles if she owned any. She ended up spilling her guts because of thier tactics. Giving them her address, cell number and other info. But, she doesn't remember having the credit card.

Does she by chance have a common name?

[jlynn]

Quote:

Originally Posted by Vindian She got scared and wired a partial payment to them the next day.

Your friend needs to remove all funds from the account she wired from and move them to another bank. Now. They now have her banking information...

[Vindian]

Quote:

Originally Posted by jlynn Your friend needs to remove all funds from the account she wired from and move them to another bank. Now. They now have her banking information...

She took cash and went to a Moneygram agent.

I found out they didn't call her son or her sons in-laws, they sent someone to thier homes. Acting all "Law" like stating warrants will be issued etc etc. basically intimidating her sons family and sons in-laws.

SO initial contact has been made, so I'm assuming there should be a letter in the mail and then DV the letter? Even though she's sent a payment?

With what she has said, I'm thinking an email or letter to the MA AG is in order.

If that ground pounder shows up here, I'll ...... and he'll be

[Pale Rider]

The first thing I would do is find out if anything done so far has reset SOL. If not, stop all payments and move the bank account as suggested. Then sit back and start counting violations. It sounds like they really want to pay her for all their blatant violations, and maybe even spend some time in jail for their criminal actions. I would be at a local attorney's office 1st thing Monday to find out about the SOL. Don't forget that the FDCPA applies to "any" person. The family members could get some cash too. If anyone pokes their fat noses around again, call the police and have them escorted away.

[hannah]

Massachusetts SOL on open accounts is 6 years. I cannot find anything about restarting the SOL clock but the debt collection and consumer statutes are here and here.

[Pale Rider]

Let the games begin......


CHAPTER 260. LIMITATION OF ACTIONS


LIMITATION OF PERSONAL ACTIONS


Chapter 260: Section 2. Contract actions; actions upon judgments or decrees of courts of record


Section 2. Actions of contract, other than those to recover for personal injuries, founded upon contracts or liabilities, express or implied, except actions limited by section one or actions upon judgments or decrees of courts of record of the United States or of this or of any other state of the United States, shall, except as otherwise provided, be commenced only within six years next after the cause of action accrues.


Chapter 260: Section 13. Acknowledgment or new promise; effect

Section 13. No acknowledgment or promise shall be evidence of a new or continuing contract whereby to take an action of contract out of the operation of this chapter or to deprive a party of the benefit thereof, unless such acknowledgment or promise has been made by, or is contained in, a writing signed by the party chargeable thereby.


Chapter 260: Section 14. Part payment; effect

Section 14. The preceding section shall not alter or impair the effect of a payment of principal or interest made by any person; but no endorsement or memorandum of any such payment, written or made upon a promissory note, bill of exchange or other writing by or on behalf of the party to whom such payment has been or purports to have been made, shall be sufficient proof of the payment to take the case out of the provisions of this chapter.

http://www.mass.gov/legis/laws/mgl/gl-260-toc.htm

[Vindian]

Quote:

Originally Posted by Pale Rider Let the games begin...... Section 14. The preceding section shall not alter or impair the effect of a payment of principal or interest made by any person; but no endorsement or memorandum of any such payment, written or made upon a promissory note, bill of exchange or other writing by or on behalf of the party to whom such payment has been or purports to have been made, shall be sufficient proof of the payment to take the case out of the provisions of this chapter. http://www.mass.gov/legis/laws/mgl/gl-260-toc.htm

So does this mean the SOL can't be reset by payment after the SOL has passed?

Thank you all for all of this information and advice.

I'm going to have to walk my friend through all of this. She is 60 years old and doesn't understand anything about JDB's or her rights. She thought of the person on the other end as an authority figure by the way they threw legal lingo at her. All she understood was "Taking you to Court" "Registration cancelled" and those hit home with her.

She was not able to get a recording. I told her to write down EVERYTHING that she could remember about the conversation.

[Pale Rider]

Quote:

Originally Posted by Vindian So does this mean the SOL can't be reset by payment after the SOL has passed? Thank you all for all of this information and advice....... ......She was not able to get a recording. I told her to write down EVERYTHING that she could remember about the conversation.

It looks to me that payment does not restart the SOL. It also appears that the only thing that will is acknowledgment of the debt in writing, and signed by the debtor. But, I am no lawyer. You may still want to check with local attorney to make sure.

That is a good idea, to have her memorialize the conversation. You may want to have her write down all of the events leading up to this, including all that went on with the relatives and if the debt was discussed with them. Even if this does not work out in her favor, she may be able to lessen the damage by countersuing for their violations.

[FixinThings]

Only bringing the account current and then having a subsequent default can reset the SoL clock in MA without some legally executed document that re-establishes the contract (i.e., a new contract).

Switching to a new bank or bank account is good advice.

She can also send a notice to the CA (CMRRR) specifically prohibiting them from accessing any account of hers at any bank or financial insititution. She would need to follow up with her branch bank with a specific stop payment order for that CA. This precludes the CA from making any automated clearing house (ACH) withdrawal(s) from her account(s) and places them in jeopardy for legal action. It also puts the CA under the jurisdication of the U.S. Comptroller of the Currency , the authority that oversees the ACH system. The Comptroller doesn't like the fraudulent use of the system, and the banks ALWAYS side with the Comptroller in such matters.

[ilovemydogs]

Quote:

Originally Posted by Vindian She lives in MA. SOL in MA is 6 years. But like I said, she wired the money to them. They said she has to send payment every month until the balance is paid in full. I just spoke to her and got the information. She was very intimidated. They told her if she didn't pay they were going to take her to court and the date was set for March 6th. They also stated that they would have the registration cancelled on any of her vehicles if she owned any. She ended up spilling her guts because of thier tactics. Giving them her address, cell number and other info. But, she doesn't remember having the credit card.

Oh gee, this sounds like C*ASS*MBECE : (

If it is DO NOT SEND THEM ANYMORE MONEY and if you can stop the wiire transfer do so NOW.

ILMD
ILMD

[ilovemydogs]

Quote:

Originally Posted by Vindian She took cash and went to a Moneygram agent. I found out they didn't call her son or her sons in-laws, they sent someone to thier homes. Acting all "Law" like stating warrants will be issued etc etc. basically intimidating her sons family and sons in-laws. SO initial contact has been made, so I'm assuming there should be a letter in the mail and then DV the letter? Even though she's sent a payment? With what she has said, I'm thinking an email or letter to the MA AG is in order. If that ground pounder shows up here, I'll ...... and he'll be

Reading this is DOES sound like C is involved. Their operandi is to send someone to house to intimidate, and or leave something on the door, or get a sherriff to leave something, and then call you the next day and say something like "How did you like the sheriff coming?Next time it will be for your arrest, so you better PAY NOW. Sell your jewelry, cash in your life insurance but you better pay me NOW,as you STOLE money,blahblahblah", so tell your friend to be prepared for more harassment. AND YES CALL AND WRITE THE ATTORNEY GENERAL!!!

ILMD

[ilovemydogs]

Quote:

Originally Posted by hannah Massachusetts SOL on open accounts is 6 years. I cannot find anything about restarting the SOL clock but the debt collection and consumer statutes are here and here.

I was told it does restart the SOL,if you sign something along with the payment,but if you only sent the money and did not admit to anything it might be ok.

ILMD

[Pale Rider]

Quote:

Originally Posted by ilovemydogs I was told it does restart the SOL,if you sign something along with the payment,but if you only sent the money and did not admit to anything it might be ok. ILMD

That is similar to the TX laws, and goes right along with how the statute is written. A check could possibly restart SOL, because it is signed, if you put a memo about the debt at the bottom. In this case, I agree that it has probably not restarted if a written, signed promise to pay was not sent with payment.

[hannah]

Quote:

Originally Posted by FixinThings Only bringing the account current and then having a subsequent default can reset the SoL clock in MA without some legally executed document that re-establishes the contract (i.e., a new contract).

If this correct, then she is OK as no new contract has been established. Remember, with a JDB owning the alleged debt, you can NEVER bring an account current once it has been charged off by the OC, since a JDB cannot charge off an account as it cannot issue credit.

[ilovemydogs]

Quote:

Originally Posted by hannah If this correct, then she is OK as no new contract has been established. Remember, with a JDB owning the alleged debt, you can NEVER bring an account current once it has been charged off by the OC, since a JDB cannot charge off an account as it cannot issue credit.

A long time ago this was brought up on another board, and I remember that there was a case about someone paying on an out of SOL debt,and because it was a Massachusetts case, it piqued by interest, and if my memory serves me, the court found that the person that had paid on the SOL,so acknowledged it was her debt as the checks had as a memo what it was for, so the court took the JDB's side.
I am not saying that this is LAW, but I do think there could be a chance that she is not going to win crying SOL, as she does not appear to be one that is going to fight it,unfortunately if they take her to court. Hope I am wrong about this.
AND if it is the JDB I wrote about she is going to be slaughtered if she does not have back up to go at them.

ILMD

[FixinThings]

Citation?

In the absence of precedence, the plain language of the statute should prevail.

Having said that, the MA judiciary has a justifiable reputation for not following either statute or case-law guidance.

[hannah]

In MA all I could find were OLD cases:

In Henry A. McDonald v. Paul Hanahan

[NO NUMBER IN ORIGINAL]

Supreme Judicial Court of Massachusetts

328 Mass. 539; 105 N.E.2d 240; 1952 Mass. LEXIS 706

Quote:

Under the United States Treasury Regulations, which were brought to the notice of the District Court judge, he correctly ruled that the bonds were not transferable and could not be pledged or assigned in payment of a debt. Treasury Regulations Department Circular No. 530, revised, [**242] §§ 315.2, 315.11, 315.12, 315.13, 10 Fed. Reg. 1956. Reynolds v. Reynolds, 325 Mass. 257, 262. It was error, however, to regard them as part payment, and the Appellate Division rightly held that the receipt of the bonds could not operate to toll the statute of limitations. The theory by which part payment removes the bar of the statute is that "The payment is an acknowledgment of the existence of the indebtedness, and raises an implied promise at that time to pay the balance." Day v. Mayo, 154 Mass. 472, 474. Credit Service Corp. v. Barker [***4] , 308 Mass. 476, 478. But to have that effect there must be an actual payment of money or its equivalent; there must be something of value [*541] passing between the parties which in fact reduces the debt. Blanchard v. Blanchard, 122 Mass. 558, 562.

In John J. Kelly v. Ellen J. McIntyre, administratrix

[NO NUMBER IN ORIGINAL]

Supreme Judicial Court of Massachusetts

323 Mass. 313; 81 N.E.2d 825; 1948 Mass. LEXIS 592

Quote:

In support of the rulings, the plaintiff argues that the defendant's intestate waived the statute of limitations by the successive weekly payments in the form of board, room, and laundry. See G.L. (Ter. Ed.) c. 260, §§ 13, 14; Alpert v. Radner, 293 Mass. 109, 111, 199 N.E. 407. Depending upon the circumstances, a part payment may be an acknowledgment of a debt taking it out of the operation of the statute. Nutter v. Mroczka, 303 Mass. 343, 347, 21 N.E.2d 979. Mendes v. Roche, 317 Mass. 321, 324, 58 N.E.2d 148. Such payment need not be in cash but may assume other forms, including the furnishing of board, room, and laundry. Sutherland v. MacLeod, 311 Mass. 295, 297-298, 41 N.E.2d 9. But to avoid the bar of the statute, the circumstances attending the part payment must support a fair and reasonable inference that the [***6] debtor intended to renew his promise of payment. Pond v. Williams, 1 Gray, 630, 635. Ramsay v. Warner, 97 Mass. 8, 13. Taylor v. Foster, 132 Mass. 30, 33. Gillingham v. Brown, 178 Mass. 417, 60 N.E. 122. Kennedy v. Drake, 225 Mass. 303, 308, 114 N.E. 310. Spinney v. Freeman, 230 Mass. 356, 119 N.E. 798. Credit Service Corp. v. Barker, 308 Mass. 476, 33 N.E.2d 293. Provident Institution for Savings v. Merrill, 311 Mass. 168, 171, 40 N.E.2d 280. Those circumstances in the present case do not support such an inference. The reasonable implication is that the board, room, and laundry were furnished and received on account of each current weekly obligation. The providing of those items was in no way an acknowledgment either that there were unpaid weekly cash items for the period [*316] barred by the statute or that, notwithstanding the statute, those items were recognized as still justly due and owing. The exception to the denial of the requests must be sustained.

Note bolded part in above.

There are a TON of old cases, but nothing newer came up in the search terms. Perhaps someone has a suggestion on search terms. I have a migraine and perhaps I am not thinking clearly.

See attachments.

[FixinThings]

Onus remains on the claimant that the SoL has been restarted.

He has the thresholds of both intent and written acceptance to meet in order to prevail.

While these are not impossible to meet, they are not necessarily assumed, on the basis of the simple claim, to rise to the level of acceptability, particularly if the alleged debtor challenges the assertion.