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My husband has received a letter from SMS Financial, which…

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My husband has received a...
My husband has received a letter from SMS Financial, which is the assignee of the above referenced loan. To Kapco Communications (a defunct business) that was personally guaranteed by my Husband in 2005. They are saying the original amount was $52,392.35 The letter says he now owes $114,086.48 and they are making demand of $114,086.48 by August 11,2017. 1) as it has been over 10 years - can they collect - or collect the attorney's fees and costs in the event legal action is commenced? Also, we had several foreclosures around 2008 or 2009 on investment properties and I don't even know if we received the money in question. Can they do anything at this time (also it was out of the state of IL we live in AZ now)
Submitted: 1 year ago.Category: Bankruptcy Law
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7/29/2017
Bankruptcy Lawyer: Phillips Esq., Attorney-at-Law replied 1 year ago
Phillips Esq.
Phillips Esq., Attorney-at-Law
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Bankruptcy Lawyer: Phillips Esq., Attorney-at-Law replied 1 year ago

This Statute of Limitations on the debt has run both in Illinois (10 years) and Arizona (6 years). However, it does not mean that the lender cannot attempt to collect on the debt. The Statute of Limitations on a debt deals with the time a creditor/collector has to file a lawsuit to collect on its debt or forever barred from bringing up the lawsuit. The creditor may still use other means to try to collect the debt such as telephone calls and letters. However, without the threat of lawsuit, there is really nothing the creditor/collector can do. So, a debtor does not have to pay debts that are passed the Statute of Limitations. Finally, if a creditor files a lawsuit, the fact that the Statute of Limitations has run on the debt is an Affirmative Defense and the debtor must request that the Court dismiss the case because the Statute of Limitations has run on the debt.

The Statute of Limitations on a debt starts to run from the time the debtor stopped paying on the debt. Kindly note that paying anything on the debt will restart the Statute of Limitations period. So, the debtor must not agree to pay anything on a debt that has passed its Statute of Limitations.

You (your husband) can send a letter to the collector that the Statute of Limitations has run on the debt and for the collector to cease and desist from contacting you with regard to the debt. Once your husband sends this letter, the collector MUST stop contacting him for the debt. Otherwise, he can file lawsuit against the collector for illegal collection tactics.

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