Robert
Buffalo,#2Consumer Comment
Thu, October 18, 2007
""By the Fair Debt Collection Practices Act they can not sue you nor take anything away from you."" I see NOTHING in the federal FDCPA that bars anyone from sueing anybody! What the statute of limitations does is provide an affirmative defense if a debtor is sued. However, the court is not going to automatically toss a suit because of the SOL being expired. The defendant MUST AFFIRM an expired SOL defense. This is exactly what these junk buyers hope for. They will file a lawsuit even though the SOL is expired in the hopes for one of two things: 1 - they hope that the person panics and sends in a payment which infact will reset the SOL clock and can be used to affirm that the debt belongs to the person making the payment. 2. They file a suit in the hopes that the defendant IGNORES it and then they WIN a DEFAULT judgement against the defendant. If there is a section of the FDCPA that states that someone can't sue you because of the SOL please point it out - section and paragraph number. The danger to most folks is that the receive a notice and because the debt isn't theirs, they ignore it! This is what the junk debt buyers want, because then the have a good reason to believe that the same person will ignore SERVICE for a pending lawsuit - PRESTO, they get the default judgement. It is better to send a certified, return receipt requested letter to the debt collector/junk debt buyer DISPUTING the debt as not yours. The burden of proof is on them. Demand that they validate the debt as well. This covers all bases with them. You give them notice that it's not your debt, and per the FDCPA they MUST NOTIFY you as to who owns the debt (the creditor.) Then you can send a certified letter to the CREDITOR to dispute the debt. Note: letters to ONLY the debt collector often times only gets that particular collector off your back. Many times, the CREDITOR will come after you again several months later via a different collection agency. This is why I always recommends a certified letter that DISPUTES the debt and demands VALIDATION. Getting the collector to back off is the immediate goal, but the CREDITOR needs to be put on notice that the debt is disputed (many times the collector merely drops collection efforts without telling the creditor why). Demanding validation requires the debt collector to give you a written notice as to who the CREDITOR is so that you may contact the CREDITOR directly. Hope this helps.