[NeedDebtHelp]

What is the name of your state? West Virginia (Lived here all my life)

I had a credit card that was charged off in 2003. I was 30 days past due as of 9-2002 and I got this information from a credit report as of 2004. I started receiving collection calls at some point in 2003 and was willing to get the balance taken care of within reasonable means.

I had talked with the collections department and made an arrangement to set up a payment plan. I started sending in $100 a month for a period of 4 months. About 3-6 months later the checks were all returned as being undeliverable. I called the company and they couldn't pull up any information. Eventually, I got someone who looked into my issue and I found out that the CC company (Who my card was with) was purchased by them and at some point in early 2000. Collections efforts were handled by them for a period of time, but the decision was made to write off all pervious debts and all accounts were sold to collection agencies and that is most likely why my payments were returned.

I never heard from a collection agency about the account for quite a few years, and had no idea with whom to setup a payment plan with since Citi had no record of my account.
In 2004 I checked my credit report and found that the amount listed was much higher than my original balance (by almost 1500) so I filed a claim with one of the three Credit bureaus. The credit bureau did not get validation of the debt and it was removed from my report in 2005 for all of the big 3 agencies, still no calls from a collection agency. I have the email about the report, but I didn't realize that it was a page that was only available for a short period of time. I don't have a way to look at it any longer, so I don't know what exactly it said. (Can I call up the agency and get a copy of it?)

Anyways, I forgot about the debt up until some point last year when I received a call about the account. I told them over the phone about the claim I filed with the credit bureau and that I wanted verification of the debt and she was really nice and said she would look into what she had and mail it, didn't hear anything from them.

Then at the end of last year I got a call from Midland Credit Management about the debt and I told them the same thing. I heard back from another woman from the agency that said they were putting my debt back on my credit report and I again told them I wanted verification for the debt.

I just received a letter from a collection attorney that has an office in my state. It is my understanding that they will probably sue me in the next couple weeks, but the letter just says they received my account and are collecting on behalf of Midland Credit Management, but nobody has reviewed my account from their agency yet. I am again going to try to get verification for the debt, but would like to know if they can sue before sending the verification? Also I don't have a problem setting up some sort of payment once I get the account verified and corrected, I just don't want to be taken to court for the amount that was incorrect.

Any Ideas? Statue of Limitations come in to play here if I am taken to court? I have spent quite a bit of time browsing the WV legislature online and have a hard time trying to fit CC agreements into the SOL.

Also do you know of any case law for CC SOL in WV that has successfully used the 5 years SOL? Also where can I search for cases myself? Thanks for any help.


Thanks for any help.

[hannah]

Originally Posted by NeedDebtHelp

What is the name of your state? West Virginia (Lived here all my life)

I had a credit card that was charged off in 2003. I was 30 days past due as of 9-2002 and I got this information from a credit report as of 2004. I started receiving collection calls at some point in 2003 and was willing to get the balance taken care of within reasonable means.

I had talked with the collections department and made an arrangement to set up a payment plan. I started sending in $100 a month for a period of 4 months. About 3-6 months later the checks were all returned as being undeliverable. I called the company and they couldn't pull up any information. Eventually, I got someone who looked into my issue and I found out that the CC company (Who my card was with) was purchased by them and at some point in early 2000. Collections efforts were handled by them for a period of time, but the decision was made to write off all pervious debts and all accounts were sold to collection agencies and that is most likely why my payments were returned.

I never heard from a collection agency about the account for quite a few years, and had no idea with whom to setup a payment plan with since Citi had no record of my account.
In 2004 I checked my credit report and found that the amount listed was much higher than my original balance (by almost 1500) so I filed a claim with one of the three Credit bureaus. The credit bureau did not get validation of the debt and it was removed from my report in 2005 for all of the big 3 agencies, still no calls from a collection agency. I have the email about the report, but I didn't realize that it was a page that was only available for a short period of time. I don't have a way to look at it any longer, so I don't know what exactly it said. (Can I call up the agency and get a copy of it?)

Anyways, I forgot about the debt up until some point last year when I received a call about the account. I told them over the phone about the claim I filed with the credit bureau and that I wanted verification of the debt and she was really nice and said she would look into what she had and mail it, didn't hear anything from them.

Then at the end of last year I got a call from Midland Credit Management about the debt and I told them the same thing. I heard back from another woman from the agency that said they were putting my debt back on my credit report and I again told them I wanted verification for the debt.

I just received a letter from a collection attorney that has an office in my state. It is my understanding that they will probably sue me in the next couple weeks, but the letter just says they received my account and are collecting on behalf of Midland Credit Management, but nobody has reviewed my account from their agency yet. I am again going to try to get verification for the debt, but would like to know if they can sue before sending the verification? Also I don't have a problem setting up some sort of payment once I get the account verified and corrected, I just don't want to be taken to court for the amount that was incorrect.

Any Ideas? Statue of Limitations come in to play here if I am taken to court? I have spent quite a bit of time browsing the WV legislature online and have a hard time trying to fit CC agreements into the SOL.

Also do you know of any case law for CC SOL in WV that has successfully used the 5 years SOL? Also where can I search for cases myself? Thanks for any help.


Thanks for any help.

First of all, to get validation from Midland you must write and ask for it. Send it certified mail return receipt. Just say in the letter you are requesting validation and verification of the debt pursuant to the FDCPA and WVCCPA. Do not say it's your account as that is what you are trying to find out with validation and verification. If you don't want them to call you, include a clause that it is inconvenient to call you at any time at any number. Ok?

You need to find out exactly when this account went into default so order hard copies of your credit reports from all three credit bureaus.

Next, is the card a credit card or a store card? A credit card in WV is considered an open end account and the SOL is 5 years. A store card uses the UCC for sale of goods and is 4 years.

Was this a Spiegel account by any chance?

Did you EVER acknowledge that you owed this account in writing to Midland? If so, they can argue that you reset the SOL.

PM me the collection attorney's name if you want to and I'll check him out.

BTW - Encore owns Midland. According the WV AG, Encore is licensed and bonded in WV, but Midland is not and statute says all CA's must collect in their own name therefore Midland cannot collect. File a AG complaint.

[NeedDebtHelp]

Originally Posted by hannah

First of all, to get validation from Midland you must write and ask for it. Send it certified mail return receipt. Just say in the letter you are requesting validation and verification of the debt pursuant to the FDCPA and WVCCPA. Do not say it's your account as that is what you are trying to find out with validation and verification. If you don't want them to call you, include a clause that it is inconvenient to call you at any time at any number. Ok?

I sent a debt validation letter to the collection attorney. I have not admitted that the account its mine. This post was one I copied and pasted from another forum I posted on. Since then I have received a letter back from the collection attorney stating the name of the original creditor, the original account number, the account opened date, and the last 4 of my social. No documents included with the letter. Should I DV Midland directly? I put in my DV letter that if they are not the owner of the debt to immediately forward to the owner.

Originally Posted by hannah

You need to find out exactly when this account went into default so order hard copies of your credit reports from all three credit bureaus.

I have my 2004 credit report which shows the original account and the date that I was 30 days past due as of 9/2002. This is the last credit report that I have that the account was on. I disputed the account because I heard nothing from anyone and the account was removed.

Originally Posted by hannah

Next, is the card a credit card or a store card? A credit card in WV is considered an open end account and the SOL is 5 years. A store card uses the UCC for sale of goods and is 4 years.

It was a credit card. What can I use to prove that it falls under the 5 year SOL for WV. The law is very vague when it comes to CC accounts and what constitutes as a written contract. Again, is there case law that I can refer to?

Originally Posted by hannah

Was this a Spiegel account by any chance?

No.

Originally Posted by hannah

Did you EVER acknowledge that you owed this account in writing to Midland? If so, they can argue that you reset the SOL.

No.

Originally Posted by hannah

PM me the collection attorney's name if you want to and I'll check him out.

Will send you a PM.

Originally Posted by hannah

BTW - Encore owns Midland. According the WV AG, Encore is licensed and bonded in WV, but Midland is not and statute says all CA's must collect in their own name therefore Midland cannot collect. File a AG complaint.

Ok.

[hannah]

This statute is the statute of limitations:

W. Va. Code § 55-2-6 (2007)

§ 55-2-6. Actions to recover on award or contract other than judgment or recognizance.

Every action to recover money, which is founded upon an award, or on any contract other than a judgment or recognizance, shall be brought within the following number of years next after the right to bring the same shall have accrued, that is to say: If the case be upon an indemnifying bond taken under any statute, or upon a bond of an executor, administrator or guardian, curator, committee, sheriff or deputy sheriff, clerk or deputy clerk, or any other fiduciary or public officer, within ten years; if it be upon any other contract in writing under seal, within ten years; if it be upon an award, or upon a contract in writing, signed by the party to be charged thereby, or by his agent, but not under seal, within ten years; and if it be upon any other contract, express or implied, within five years, unless it be an action by one party against his co-partner for a settlement of the partnership accounts, or upon accounts concerning the trade or merchandise between merchant and merchant, their factors or servants, where the action of account would lie, in either of which cases the action may be brought until the expiration of five years from a cessation of the dealings in which they are interested together, but not after.

Purpose of the Statute:

Purpose of statute.

A statute of limitation is merely a legislative device to prevent unjust harassment of debtors and to compel assertion of legal rights within reasonable time limits. United States v. Polan Indus., Inc., 196 F. Supp. 333, 1961 U.S. Dist. LEXIS 2727 (S.D. W. Va. 1961), commented on in 64 W. Va. L. Rev. 228 (1962).

Effect of statute.

The statute of limitations destroys and defeats simply the remedies for the recovery of the debt; it does not operate in law or in fact as a discharge of the debt. The debt remains and the legal remedies for its enforcement only are destroyed. Roots v. Mason City Salt & Mining Co., 27 W. Va. 483, 1886 W. Va. LEXIS 34 (1886).

The running of the statute of limitations on a debt does not extinguish the debt but merely bars the recovery thereof. State ex rel. Battle v. Demkovich, 148 W. Va. 618, 136 S.E.2d 895, 1964 W. Va. LEXIS 90 (1964).

In order for the ten-year statute of limitations to be applicable, there must be a contract in writing and the obligation or liability must grow immediately out of the written instrument and not remotely. Sansom v. Sansom, 148 W. Va. 603, 137 S.E.2d 1, 1964 W. Va. LEXIS 88 (1964).

Statute a personal defense.

The plea of the statute of limitations is generally a personal defense, to be made by the party against whom the demand is asserted. Welton v. Boggs, 45 W. Va. 620, 32 S.E. 232, 72 Am. St. R. 833, 1898 W. Va. LEXIS 135 (1898); State ex rel. Magun v. Sharp, 143 W. Va. 594, 103 S.E.2d 792, 1958 W. Va. LEXIS 35 (1958).

Burden.

The burden rests upon the party making the plea of the statute of limitations, to establish by a preponderance of the evidence that the claim of the plaintiff is barred by the statute. Preston County Coke Co. v. Preston County Light & Power Co., 146 W. Va. 231, 119 S.E.2d 420, 1961 W. Va. LEXIS 14 (1961); Culbertson v. Jno. McCall Coal Co., 275 F. Supp. 662, 1967 U.S. Dist. LEXIS 9352 (S.D.W. Va. 1967).

There are no WV Supreme Court cases for strictly for the limitations of credit card debt because of the definitions given in the statutes as they are not called credit cards. You can find the definitions in W. Va. Code § 46A-1-102. As far as I have found, no one has ever brought an appeal to the WV Supreme Court on what constitutes a credit card debt time limitation specifically so you won't find any.

Please pay attention to the passages I marked in red.

From what you have said about the debt, that you made the last payment on or about 8-30-2002, then the debt is almost assuredly time-barred.

If I were you, in my DV letter to the attorney or to Midland, I would tell them that the debt is time-barred and that you wish them to cease and desist. Now this doesn't mean they won't sue you, they can. But you will assert the affirmative defense of SOL and counterclaim for them suing you on a time-barred debt. The burden of proof here would be on you, however, that the debt is indeed time-barred so you need to locate some documents from the original creditor. If you are sued, this can be done by third party subpoena.

Midland seems to have bought a bunch of WV debts recently and all that have been brought to my attention are all time-barred. Seems Encore/Midland is really scraping the bottom and all their Indian/Pakistani collectors are telling the alleged debtors that credit card debt in WV has a ten year statute of limitations. It just isn't so.

Oh, and BTW - The so-called letter from the attorney representing validation? It's not validation if it's not from the original creditor and validation is not something an attorney puts on his letterhead. It must come from the original creditor to Midland to the attorney to you.

So far you have several violations of the WVCCPA and the FDCPA that I can see not to mention emotional distress...

[apexcrsrvc]

Who is the law firm and are they calling (MCM or the firm)? If they sue you, let me know and I will turn you over to someone who can assist on a contingency basis. They'll serve the Complaint without the necessary Affidavit requirements and counsel will use that.

[NeedDebtHelp]

Will post back soon. Internet has been very in and out since a recent snow storm.

Will try to get a solid connection tonight.

[NeedDebtHelp]

Originally Posted by apexcrsrvc

Who is the law firm and are they calling (MCM or the firm)? If they sue you, let me know and I will turn you over to someone who can assist on a contingency basis. They'll serve the Complaint without the necessary Affidavit requirements and counsel will use that.

PM sent

[NeedDebtHelp]

Thanks for the information Hannah. I appreciate everything that you have done so far. I have a feeling this is eventually going to end up in court. From what I have been reading on the net, is this attorney is notorious for sending back summons attached to validations. I am nervous about answering that summons, when and if it does come.

I sent out another debt validation letter to the attorney this week. Basically I said that the debt was still in dispute by me and the reason was because I received nothing from them that proved the debt was mine or correct. I am quite surprised that most of the information that was from their letter was stuff that could have been pulled off my credit report.

Also, I am filing a dispute with the state attorney general office. I called them to find out some info and they suggested I file a claim. Will keep you posted.

I am still trying to gather information for a case if it comes to that. I just want to be ready when and if it does happen. If anyone has any other information, or comes across anything, let me know.

Thanks

[hannah]

If they do sue you, West Virginia has some statutes that I have used in defending against JDB's and their self-serving affidavits. This may be the most important statute for those being sued on evidence that only includes an affidavit from any source:

§ 55-8-7. Action against makers, drawers, endorsers, acceptors, assignors or absolute guarantors.

(a) The holder of any note, check, draft, bill of exchange or other instrument of any character, whether negotiable or not or any person entitled to judgment for money on contract, in any action at law or proceeding by notice for judgment on motion thereon, may join all or any intermediate number of the persons liable by virtue thereof, whether makers, drawers, endorsers, acceptors, assignors, or absolute guarantors, or may proceed against each separately, although the promise of the makers, or the obligations of the persons otherwise liable, may be joint or several, or joint and several. If notice or other process is not served upon all persons proceeded against, judgment may nevertheless be given against those liable who have been served as provided by law with notice or other process. These actions or proceedings by notice may be had from time to time in the same or any other court until judgment is obtained against every person liable or his personal representative. However, plaintiff shall have satisfaction of but one of two or more judgments rendered on the same demand.

(b) In any action at law, whether in circuit court or magistrate court, on a note or contract, express or implied, for the payment of money, if: (1) The plaintiff files with the complaint an affidavit made by the plaintiff or an agent, stating therein to the best of the affiant's belief the amount of the plaintiff's claim, that the amount is justly due, and the time from which plaintiff claims interest; and (2) a copy of the affidavit together with a copy of any account filed with the complaint is served upon the defendant, the plaintiff is entitled to a judgment on the affidavit and statement of account without further evidence unless the defendant files an answer denying the claim or otherwise makes an appearance before the court denying that the plaintiff is entitled to recover from the defendant on the claim. The affidavit must show the calculation of the amount sought. The calculation is to also include an itemization of the principal and any interest, insurance or other charges of the original obligation. The calculation is also to include an itemization of all credits to the original obligation including credits to principal, interest, insurance, any other charges, rebates of unearned interest, rebates of insurance, rebates of other charges and proceeds of sale of all collateral. If the defendant's pleading or affidavit admits that the plaintiff is entitled to recover from the defendant a sum certain less than that stated in the affidavit filed by the plaintiff, judgment may be taken by the plaintiff for the sum so admitted to be due and the case will be tried as to the residue.

Generally a JDB such as Midland does not have much more from the OC than a spread sheet listing name, SS#, addy, name of OC, and the amount of the alleged debt.

Affidavits are often filed as coming from the OC when they do not and generally do not contain much more than the information on the spread sheet the JDB received when they purchased the debt. JDB's use these affidavits as evidence of the debt being sued upon. In WV such affidavits are improper on their face and cannot be used to evidence a debt unless they contain all of the above stated elements. Therefore, affidavits can be struck using a motion stating the above statute. While all courts and judges are different, in WV they are supposed to use the plain language of the law and since there is nothing ambiguous with the above statute, a affidavit not complying can be struck as a matter of law.

You must however, first, deny the debt by answer and there are several affirmative defenses that can be used but your's first and foremost would be a defense of SOL.

[NeedDebtHelp]

I wanted to post a little update about my situation.

As mentioned before I had sent out a “Debt Still In Dispute” letter since I did not receive proper validation from the collection attorney. In that letter I did not ask that they cease and desist. It has been 30 days since I sent that letter and was going to mail out another letter staying that I still had not received anything and I still disputed the debt on Monday. In that letter I was planning on including a cease and desist statement.

Upon returning from my mother-in-laws, I had a certified mail receipt in my mailbox today. I am positive that it is from the collection attorney, but the letter will not be available for pick up until Monday. Do collection attorneys generally send validation by certified mail, or should I expect to be picking up a summons? If it is a summons and I had not received validation from them after requesting it by mail, is that a violation of the FDCPA?

Also, I disputed the listing on my Experian credit report and it was removed on March 30th. I was unable to dispute the listing on my Transunion and Equifax reports until March 31st because they required me to send a copy of my social security card and valid picture ID to get my report. This was because I had a security watch on my account (Health Insurance lost backup tapes and highly advised that I put it on my reports). The TU and EQ disputes are still running their course.

Thanks again everyone.

[hannah]

I doubt that a certified letter is from a collection attorney but could be. Summons must be served to you in person in WV or to a household member above the age of 16. It could however, be a final notice or some such although I've never heard of one being sent in this fashion.

To answer your question about them not sending validation, yes it is a violation of the FDCPA usually referred to as continued collection.

Let me know on Monday what the certified letter is.

[NeedDebtHelp]

I'll keep you posted

Thanks

[jlynn]

I received validation once CMRRR. Too bad the postman forgot to take off and have me sign the green card.

[centex]

Originally Posted by jlynn

I received validation once CMRRR. Too bad the postman forgot to take off and have me sign the green card.

Perhaps they only sent it CMRRR because they didn't believe your wide spot in the road existed...and since they didn't get the green card back, they still believe they got had