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Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 23144
Experience:  14 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 24+ yrs
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My dads wife has been served a summons by an agency that has

Resolved Question:

My dads wife has been served a summons by an agency that has bought an old credit card charge off. Approx. 2 weeks ago (9/18/13?)The first thing I noticed is that even though it had been served by a deputy nothing in the "NOTICE TO THE PERSON SERVED" section has been marked and the only date on the summons is the date it was filed. I checked courts website for the exact date of service but apparently the proof of summons has not yet been recorded. I'm still trying to ascertain the SOL due to the charge off date but the case papers are rather vague. There are dates but the wording doesn't quite tell who owned what debt when. Truly my first order of business is trying to figure out if my dad will be responsible if a judgement is filed. They are both receiving SSI which I believe is exempt from garnishment, however, my dad does own the property and house and worried that they may make him sell it in order to satisfy a judgement. His name is XXXXX XXXXX the credit card in any way. California is joint property so he his very worried. Any help with this would be greatly appreciated.
Submitted: 10 months ago.
Category: Legal
Expert:  Barrister replied 10 months ago.
Hello and welcome! My name is XXXXX XXXXX I will try my level best to help with your situation or get you to someone who can.
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Did the wife incur the debt while they were married or prior to the marriage?
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Do you know when his wife made her last payment on the account?
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Is the land and house he owns his home?
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Does he have any equity in it or is more owed on it than it is worth?
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Thanks
Barrister
Customer: replied 10 months ago.

Did the wife incur the debt while they were married or prior to the marriage?


While they were married.


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Do you know when his wife made her last payment on the account?


Last payment made was 10/13/11 but here is where it gets vague. In paragraph 8 the plaintiff states the charge off, rights and interest transfer and balance purchased by the plaintiff. But not the date of purchase and transfer. In paragraph 9 the plaintiff states "On or about November 12,2011, Defendant defaulted on the obligation by failing and refusing to pay the monthly charges as agreed" but still doesn't say to whom the payment was refused.
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Is the land and house he owns his home?


Yes, but I believe he may own other land bought prior to the marriage and only in his name.
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Does he have any equity in it or is more owed on it than it is worth?


He does own it outright so I suppose there is equity however, an appraisal may say differently since it is not in the best of conditions.

Expert:  Barrister replied 10 months ago.
Ok, if the debt was incurred while they were married, since CA is a community property state, he can be held liable even though he didn't incur the debt.
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The charge off date is not legally relevant for the statute of limitations. That is just an accounting method so the creditor can recognize the debt on their taxes. It doesn't mean anything with regard to whether the debt is enforceable or not.
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The only date that matters is when she made her last payment becaue the SOL is considered to start running 30 days after her payment was due and missed. In CA the SOL for credit card debt is 4 years so this is still within the time for them to collect if the last payment was in 2011.
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If he owns a property as his home, there is an exemption for equity in his home from creditors that will protect from $100,000 up to $175,000 in equity in the home depending on his age and income. So if he has less equity than is exempt, the home is safe.
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You are correct in that their SSI is exempt under federal law. However, if he owns other property than his home, that could be liened and sold to pay off the debt even though he didn't incur it...
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I am sorry that I don’t have better news, but please understand that I do have an ethical and professional obligation to provide customers with legally correct answers, even when an answer is not favorable to the customer.

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Thanks
Barrister
Customer: replied 10 months ago.

Just so that I am sure I completely understand, the SOL date would be the 11/12/2011 even if the 10/13/2011 payment was made to the plaintiff and not the Original Creditor as part of a payment plan. I do believe her charging privileges had already been revoked at that time. I had previously been given to understand that the SOL was in some way connected to when charging privileges were cancelled.

Expert:  Barrister replied 10 months ago.
Just so that I am sure I completely understand, the SOL date would be the 11/12/2011 even if the 10/13/2011 payment was made to the plaintiff and not the Original Creditor as part of a payment plan.
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Sorry for the delay..
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The statute of limitations begins to run 30 days after the last payment was made on the account. This means any payment at all. So if 3 years went by and she sent in a payment, that resets the SOL for them to pursue collection.
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I had previously been given to understand that the SOL was in some way connected to when charging privileges were cancelled.
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No, this not the case, it is strictly related to when the last payment was made on an account..
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.
Thanks
Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 23144
Experience: 14 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 24+ yrs
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