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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11527
Experience:  Licensed Texas General Practice Attorney
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I purchased a vehicle in Mar 2008 with my ex husband. The

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I purchased a vehicle in Mar 2008 with my ex husband. The vehicle was purchased in the state of MD while I lived in VA. The vehicle was eventually repossessed (Dec 08) and sold at an auction due to non payment and shown as a charge-off (Jan 09). I moved to WV in June 08 and I am now being sued by Autovest for Wells Fargo through the state of WV for the full amount minus what the vehicle was purchased for at auction. My question is what state's statute of limitations applies to this? Would it be MD's SOL since that is where the contract originated or is it WV since I now live here?
Submitted: 1 year ago.
Category: Legal
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I'm sorry to hear about your situation. Assuming that you don't have a written contract that specifically spells out a "choice of law", the statute of limitations would be based upon where you live at the time the cause of action accrues. That means that if the non-payment started in West Virginia, then that is going to be the applicable law.

ScottyMacEsq :

Now sometimes in these situations, a large part of the case is arguing which statute of limitation applies, particularly when there are multiple states involved.

ScottyMacEsq :

But again, unless the contract specifically designates a state whose law will apply, the state of the debtor at the time of the breach will be the one that applies.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!h

ScottyMacEsq :

Did you have any other questions before you rate this answer?

ScottyMacEsq :

Are you there? Please note that I am still here, awaiting your response.

ScottyMacEsq :

Should I continue to await your response, or may I assist the other customers that are waiting?

ScottyMacEsq :

My apologies, but I must assist the other customers that are waiting. If there's nothing else, please rate this answer. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better) AND press the "submit" button. Thank you, XXXXX XXXXX luck to you!

ScottyMacEsq :

I see that you have not responded in some time. Please note that this question is still open until you rate it as good or better. I believe that I have answered your question, but if you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!


Customer:

I found on the original document where the contract designates the state of their address as being the state whose law will apply. I was wrong about the purchase being in MD, it was VA which has a SOL of 5 years I believe. After filing my answer to my summons, I received back documents in the mail from the collection agency requesting my name, date of birth, SSN, address, etc. The paperwork they sent was about 21 questions where they want me to answer and admit that I did in fact sign the contract and that I did stop making payments, etc. I don't believe that I owe anything to this debt collector. On my credit report, the original debt is listed as <Account paid in Full; was a Charge-off< and shows I don't have a balance due to the creditor. This debt was my ex husband's and he was the one dealing with it, made payment arrangements and such. I didn't have any knowledge of it or was aware that anything was still owed. I didn't know anything else about it until I received the summons for court. Is it too late at this point for the collection agency to provide me debt validation? Would that halt this process for the time being until they provide me that information? Can I ask them to provide copies of payments made, when this was last paid, etc? Also, what day does the SOL start? The date of the last payment made?

ScottyMacEsq :

Charge-off: a charge off is different than a forgiveness of debt. A charge-off is an accounting term that they use to balance their books. If they actually forgive the debt (in which you will receive a 1099-C "cancellation of debt" form, then that would indicate that the debt was actually forgiven. Otherwise, even though it is charged off (which is an accounting process) that does not mean that it's forgiven.

Customer:

Even though it now shows that the account is paid in full?

ScottyMacEsq :

Is it too late at this point for the collection agency to provide me debt validation? - No, and you can request production as part of the litigation process. The Fair Debt Collection Practices Act (FDCPA) requires that they validate if you ask within 30 days of receiving the first contact by them.

ScottyMacEsq :

If you paid it in full, then that's a different matter.

ScottyMacEsq :

That would mean that nothing would be owed because the contract was complied with.

ScottyMacEsq :

But if it's saying that it's paid in full because of a charge off, that's an accounting procedure to balance the books.

ScottyMacEsq :

(and does not affect the legal liability)

ScottyMacEsq :

Now it could be the basis to challenge what you do actually owe.

ScottyMacEsq :

BUt it doesn't necessarily mean that you owe nothing.

Customer:

So I can request them to validate the debt even though there is already a court summons?

ScottyMacEsq :

Would that halt this process for the time being until they provide me that information? - If they've already sued you, that would not halt the process. Only a bankruptcy would halt the litigation.

ScottyMacEsq :

An FDCPA validation request halts attempts to collect against you personally, but does not forbid other collection efforts, such as lawsuits.

ScottyMacEsq :

Yes, you can absolutely request that they validate the debts.

Customer:

I never received any communication prior to the summons, a summons isn't considered a notice from them, correct?

ScottyMacEsq :

But after 30 days of the initial contact, they don't have any obligation to validate...

ScottyMacEsq :

No. But FDCPA pertains to "extrajudicial" collection efforts and what debt collectors can do.

ScottyMacEsq :

It doesn't govern court actions.

ScottyMacEsq :

That is, if they try to collect this debt without suing you first, then the FDCPA applies, and they have to validate if you request within 30 days, etc...

ScottyMacEsq :

But if they sue you first, and are not trying to collect outside of court, then FDCPA does not apply.

Customer:

They wanted me to call them to arrange a settlement, other than that, I have received no other communication except the summons

ScottyMacEsq :

Can I ask them to provide copies of payments made, when this was last paid, etc? - When you're being sued, that can be requested, but generally as part of a "Request for Production". That's a discovery process (discovery being the process that you find out what the other side knows)

ScottyMacEsq :

Also, what day does the SOL start? The date of the last payment made? - The statute of limitations starts when the last payment is due but not paid.

ScottyMacEsq :

So if you would pay monthly, you go one month from the last month that you paid.

Customer:

I believe that's what the questions were that they asked me. It was a long list of questions

ScottyMacEsq :

The day that it was due but not paid would be day one of the breach, and would start the stattue of limitations.

Customer:

I believe that was September 08, VA SOL is 5 years, so that doesn't help me right now, I guess.

ScottyMacEsq :

The questions are likely a "Request for Admissions" or "Interrogatories". Interrogatories are usually open ended questions, seeking more than a "yes/no" answer. Admissions are seeking "yes no" answers.

Customer:

Do I have to answer all their questions in the discovery, where they ask me my SSN?

ScottyMacEsq :

For admissions, if you don't answer no or no knowledge, then it's presumptively admitted.

ScottyMacEsq :

You can object to that, offering only the last couple of digits, etc...

ScottyMacEsq :

But it's possible that they could compel that if it's relevant.

Customer:

What about where I work, is there any need for them to know that?

ScottyMacEsq :

They can request that information.

ScottyMacEsq :

I don't know if there's any need, but they can compel it. That is, in discovery they can pretty much get any information that they ask for, unless it's privileged or completely not relevant (in which you would have to object to that information and be willing to support your decision to object if you go to court in a motion to compel)

Customer:

Does this usually end up in court or do these usually go back and forth like it seems to be now?

ScottyMacEsq :

That's more relevant in the situation of post-judgment interrogatories (as it would tell them where they could send a garnishment order, etc...)

ScottyMacEsq :

If you work with them, it usually just goes back and forth and there's some settlement made.

ScottyMacEsq :

If not, it usually goes to court.

Customer:

Also, my ex husband is the signer and I'm the co-signer, does he have any responsiblity in this as well? I mean, if I get a judgment against me, can I sue him for half of what is owed?

ScottyMacEsq :

Absolutely. If he was the signer, and there was no apportionment of the debt in the divorce (and no discharge in bankruptcy on his end), then as the signer he has priXXXXX XXXXXability, and your liability is secondary. As the co-signer the creditor can go after you, but you can sue him for the entire amount, not just half. Now if you were an account holder as well as he was, rather than just co-signing so that credit would be extended, then it would be half.

ScottyMacEsq :

But if you signed so that your credit would be used to get an extension of credit for him, and the account was really in his name alone, then you could get the entire amount of the account.

Customer:

How would I know if I'm the account holder vs being a co-signer?

ScottyMacEsq :

(again, assuming that he has not filed for bankruptcy or there was an apportionment of this in divorce)

Customer:

this was never really decided in the divorce. It stated that what vehicles we had at the time we kept, no one had that vehicle at the time

ScottyMacEsq :

You would want to look at the contrat.

ScottyMacEsq :

*contract

Customer:

On the contract, it just shows me as the co-signer

ScottyMacEsq :

If you are agreeing in the contract to be liable in case of non-payment, etc.. then that's cosigner liabillty.

ScottyMacEsq :

You could argue that means "guarantor" (meaning that you don't have the benefit, but rather just giving your credit to another) and sue him for the entire amount.

ScottyMacEsq :

But in any event, you should be able to get half from him.

Customer:

Great thank you for all your help!

ScottyMacEsq :

My pleasure.If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (~30 minutes) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better). If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

Customer:

Thank you

ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11527
Experience: Licensed Texas General Practice Attorney
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