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DON'T BE HAMMERED BY YOUR DEBT

DON'T BE HAMMERED BY YOUR DEBT

Wednesday, November 14, 2007

INTERNET DEBT MYTHS

The explosion of the internet has led to a proliferation of myths regarding the
uncollectibility of debts and defenses to debt collection. These myths have spread like wildfire across blogs and websites and they are all false and dangerous.

I haven’t heard anything about this debt for 1, 2 or 3 years and therefore you can’t sue
me for it.

The only time limitation for the collection of a debt is a state’s statute of limitations. A statute of limitation is a deadline established by the Legislature of a given state for the collection of an open account debt. The mere fact that no one has contacted you about a debt for 1, 2, or even 3 years does not render it uncollectible. You should also be aware that typically the statute of limitations for the state within which you reside will not govern your credit card debt. Credit card applications contain a choice of law provision. This is an agreement between the parties to be governed by the law of a particular state. The credit card companies typically choose a state with an extremely long statute of limitations. Rhode Island, a typical state chose by credit card companies, has a ten year statute of limitations for open accounts.

You can’t sue me because you don’t have a signed contract.

Most people fail to understand that when they sign a credit card application and send it back in they have actually signed a contract. I now advise all of my personal clients to keep copies of those applications when they sign them and send them back in. However most individuals typically do not. Regardless a credit card company will typically not issue a credit card without a signed application and therefore without a signed contract. However, even if there is no signed application, you still are parties to a contract. The contract may be an implied and equitable contract. In other words, the credit card company has extended you credit and you have taken advantage of it by purchasing things on their credit. You now have a legal obligation to repay that money and the court will construe that to be a contract.

I have never heard of the company that is contacting me or suing me and I have no agreement with them, therefore I don’t have to pay them.

There is an entire industry in this country now devoted to the purchase and collection of debt. Once you default on a credit card debt and the credit card company is unable to collect it, they will package it or bundle it with thousands of other delinquent debts and sell it to a debt buyer. The debt buyer will pay pennies on the dollar for the debt and then will attempt to collect it. This is perfectly legal. All contracts are assignable, unless there is a written provision in them barring assignment. What this means is that a credit card company can assign (sell) your debt to another company and they do not have to get your permission or even give you notice. That new company simply steps into the shoes of the original creditor.

You can’t sue me I am making payments.

Perhaps the most prevalent myth circulating on the internet is that if you are making minimal regular payments you cannot be sued. The truth is that once you default on a debt you can then be sued for the full balance at any time. Even if you recommence making the full payment, your default has rendered the full balance due and payable at any time. The mere fact that you are making minimal or nominal payments on a regular weekly, monthly or bi-monthly basis does not prevent a creditor from suing you.

There are hundreds of other myths and I will address them in future articles.