I have to say that I’m excited by the actions that some of the Attorney Generals in this country are taking. Right now in Washington State Rob McKenna is going after a subsidiary of Bank of America and Gary King in New Mexico just announced a new rule for time-barred debts. It stands to reason that other states will follow suit and this is a HUGE VICTORY against the junk debt collectors that feed off consumers who do not realize that their old debt is beyond the statute of limitations.
Here’s the deal with consumer credit card debt. It has a statute of limitations. This means that after so many years (it varies by state, average seems to be about six years but in some states is as little as 3)a debt collector may continue to pursue collection efforts but cannot sue you in a court of law.
Well, entire armies of debt collectors have been getting rich using the court system for YEARS! They issue a Complaint or Lawsuit against a debtor who has old debt. Most of the time this debt has been sold and resold to various debt collectors and is bought for pennies on the dollar. The original issuing creditor has long since written off the debt, thus relieving their tax burden.
The debtor receives a summons from the court to appear in the lawsuit. At this point they have three options. They can hire a lawyer to defend themselves, they can respond Pro Se (without an attorney) and defend themselves or most commonly they panic and do nothing.
A summons generally must be responded to in what is called an “Answer” within 20 days or a default judgment is granted. This is what happens in over 95% of credit card debt lawsuits.
No one responds to the lawsuit, the lawyer doesn’t even have to be in the courtroom (most of these cases are handled by mail) and a default judgment is granted and the debtor now has a judgment on their credit report and the collector has the legal means to garnish their wages or freeze bank accounts until their judgment is paid in full AND legal fees, interest and penalties are tacked on to the original amount owing.
Default judgments should NOT happen. The worst case scenario for most of these cases should be a settlement at a reduced amount.
The exciting thing about this victory in New Mexico is that a new rule has been enacted by the Attorney General that will require debt collectors to inform debtors that their debt is time-barred and past the SOL by telephone AND in writing.
Plus it will force them to INFORM the debtor that if they make a payment it will RE-START the SOL CLOCK. That’s right. I’ve seen $20 payments on debt that was well past the SOL (10 years or more) totally sabotage people’s efforts to defend themselves in court. One payment no matter how small starts the clock back to zero.