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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11317
Experience:  Licensed Texas General Practice Attorney
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In 2003, I had a bank account with US Bank. I do remember being

Customer Question

In 2003, I had a bank account with US Bank. I do remember being indebted to them due to having overdrafts, however I had thought this had been resolved back then.

However this week, I received two phone calls, one to my job's human resources department and the other to my department manager. When advised of these two calls (I've been out of the office due to the birth of my daughter) I phoned the collector's office (The National Law Group) immediately.

During my discussion with them they advised they sent mailings regarding the debt to both my current address in Florida and mom's address in Ohio 45 days prior, however neither myself or my mother received said communication and requested documentation of the claim so I could verify with US Bank directly.

In contacting US Bank I found several things. First the date that the collection agency is claiming as the charge off date (2008) is incorrect per US Bank it was June 2003. Second when requesting documentation of the correct charge off date they advised me as they have sold the account and its been so long they no longer even have statements of the account.

In short, I'm concerned with the length of time since this has been presented. While US Bank confirmed the total the collection agency stated, as US Bank has says they have no statements from the account, I'm concerned on whether or not this 'phantom' number is XXXXX
Submitted: 12 months ago.
Category: Legal
Expert:  ScottyMacEsq replied 12 months 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. Just to be clear, have they actually filed a lawsuit against you in this situation?

ScottyMacEsq :

(or is it merely a collection situation)?

ScottyMacEsq :

Did you see my follow up question to your issue?

Customer:

At this time it is in collection phase however they are threatening to sue should I not choose to advise them that I want to pay voluntarily.

ScottyMacEsq :

Thank you. And do you happen to know the last time that you paid anything towards this debt, even a penny?

Customer:

From my knowledge if I paid anything towards this debt it would have been no later than 2004. However I highly doubt anything has been put towards this since the date US Bank states that it was charged off as I thought that any action I took was directly with the bank.

ScottyMacEsq :

I see. First of all, you need to understand that a "charge off" is different than a debt forgiveness. 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

ScottyMacEsq :

Next, you should send a debt verification letter to the law group regarding this debt, pursuant to the Fair Debt Collection Practices Act (FDCPA). Here's a sample that you can modify:


Your Name
Your Address


Date


Collection Agency's Name
Collection Agency's Address









Subject:Debt Collection Against [Your Name]
Creditor Name: [Creditor]
Account No. [Number]


Dear Account Representative,


I am writing pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g, to inform you that I dispute the alleged debt associated with account [number ________] with [creditor]. I do not believe that I owe the amount alleged by you.


Your letter of [Date of letter from debt collector] was the first time I have heard from you about this alleged debt. Thus I am requesting that you provide the following information:



  • Please explain the nature of the alleged debt - that is, what the money I allegedly owe is for;

  • Please provide an accounting explainign how you calculated what you allege that I owe;

  • Please provide me with copies of any contracts or documents which form a basis for the alleged debt; and

  • Please provide me with the name and address of the original creditor.


I further request that you take the following actions:



  1. Please contact any credit agencies to whom you have reported this alleged debt, and inform them that I am disputing the debt; and

  2. Please also forward a copy of this letter to the creditor who alleges that I owe the debt at issue, and inform them that I am disputing the debt.


Except as specifically outlined herein, I am requesting that you cease all contact with me about the alleged debt. Any further contact should be strictly in conformity with the FDCPA: It should be limited to providing me with the documentation requested in this letter, informing me that you have ceased collection efforts on the alleged debt, or stating that you are taking a specific action in relation to the debt such as commencing a collection lawsuit. Any further contact should be made in writing, and should be submitted to my home address by mail.


Sincerely,


[Your Name]


 

ScottyMacEsq :

This verification letter makes them verify who owns it, the amount, etc...

ScottyMacEsq :

Finally (and the BIG one), you need to understand that if you haven't paid anything towards this since 2004, it's TOO LATE for them to sue.

ScottyMacEsq :

Whether or not the statute of limitations for written contracts (5 years) applies, or open ended accounts (4 years), they're past the period that they can sue.

ScottyMacEsq :

They want you to pay something, even a penny, towards this, because that means that you can reopen the statute of limitations.

ScottyMacEsq :

DON'T.

ScottyMacEsq :

Again, if you don't pay anything, the statute of limitations remains closed, and they can't sue.

ScottyMacEsq :

(that is, they can't sue sucessfully)

ScottyMacEsq :

The debt itself could still be valid, which means it's not illegal for them to try to collect it.

ScottyMacEsq :

But legally the statute of limitations has likely run, and you can let them know this. Tell them that you completely dispute the debt (don't admit to it) and that the last time that you paid anything was at the latest 2004. Let them know that YOU know that this means that the statute of limitations would have run, and unless they can prove otherwise, then you're neither admitting to any debt nor are you going to pay a penny towards said debt.

ScottyMacEsq :

You should also let them know that pursuant to the Fair Credit Reporting Act (FCRA) they cannot report debt older than 7 years, and since you have last paid in 2004, that they are completely prohibited from even reporting this to your credit report.

Customer:

Ok thank you, XXXXX XXXXX your assistance in this matter.

ScottyMacEsq :

My pleasure.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 good luck to you!

Customer:

One last question that I have though is

ScottyMacEsq :

Okay...

Customer:

They are trying to claim that the account was charged off Sep 2008, my fear is that they will attempt to use that as a method to make the account be within the statute of limitations

ScottyMacEsq :

It doesn't matter when the account is charged off. It matters when you last paid anything towards it... that is it really matters when the first month that you should have paid something towards it and you didn't. Typically that's the next month after you do pay.

ScottyMacEsq :

So the month that you should have paid and you did not, that starts the statute of limitations.

ScottyMacEsq :

It does not matter when the bank charges it off. Again, that's an accounting procedure and has nothing to do with the actual debt.

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!

ScottyMacEsq :

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

Customer:

No other questions, I just need to copy the sample letter you provided for me so I may send it to them via certified mail.

ScottyMacEsq :

After you rate this answer, it will switch to a Q&A format (you may need to refresh the page after rating) at which point you'll be able to print this information, or copy and paste, etc...

Customer:

Ok thanks again

ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11317
Experience: Licensed Texas General Practice Attorney
ScottyMacEsq and 8 other Legal Specialists are ready to help you
Customer: replied 12 months ago.


I'm sorry, I need to be certain of one other question. This item was generated from an account opened in the state of Ohio. Is that relevant as I now live in the state of Florida?

Expert:  ScottyMacEsq replied 12 months ago.
It would matter if you still lived in Ohio, but once you move and the company has not sued you yet, you could claim Florida statute of limitations on this issue, which have already run.

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