which SOL to go by For a CA?

[ferrellbunch]

In 12/2003 i rented an apt, our lease was up in 5/2004 in Nevada, we ended up breaking the lease by 1month we left mid4/2004, it was sent to collections, (we moved back to california) in 7/2004 the CA called me and threatned to sue, its been almost 4 years and have not gotten anything from them, never even got a dunning letter, it was last updated on my credit reports in 7/2005, again still never recieved 1 dunning letter from them, i called the original creditor to see if they would take the account back so i can pay them, well when i called turns out the apt complex is under new management & has no access to my records, i know the SOL in cali is 4 yrs in NV for a written contract it's 6 years but it says lease is 4 years.

for the SOL for an apt complex is it the lease for 4yrs or written for 6yrs? I plan to send them a debt validation cause they are reporting WAY more then what is actually owed and I want copies of my contract the agreement between the agency and the apt saying they can collect interest(i do know that if their is no contract between them, the the agecny cant by law collect interest) as well as reciepts and all copies of dunning letters that i never got.

what are the chances of being sued for mailing them a request for debt validation? and would they have to go by the SOL for NV or Calif? thanks for you help, just trying to avoid being sued over this, especially since the apt is no longer owned by the original creditor.

does the collection agency have any right now to try to collect, and why havent they tried to contact me for now 4 years?

 

[JohnMacek]

the SOL is "tolled" if you are out of state (ie living in Nevada and the debt was incurred in California). as i understand it, the SOL would run from 4 years of the breach, minus anytime spent out of state. as far as interest goes, cal civ code states liquidated damages for money owed are to be interest, so i think they would be able to get the legal rate (10%, per annum, non-compounding) on whatever balance is owed. if i were you, i would contact the collection agency and try to work out a payment plan with them. if they know where you live, they know where to serve you, and regardless, this will be on your credit for a long time. i would negotiate a lump settlement (if possible) with the understanding that they will remove this from your credit report. just my $0.02

 

[ferrellbunch]

the SOL is "tolled" if you are out of state (ie living in Nevada and the debt was incurred in California). as i understand it, the SOL would run from 4 years of the breach, minus anytime spent out of state. as far as interest goes, cal civ code states liquidated damages for money owed are to be interest, so i think they would be able to get the legal rate (10%, per annum, non-compounding) on whatever balance is owed. if i were you, i would contact the collection agency and try to work out a payment plan with them. if they know where you live, they know where to serve you, and regardless, this will be on your credit for a long time. i would negotiate a lump settlement (if possible) with the understanding that they will remove this from your credit report. just my $0.02

i am not sure If i am understanding what you said correctly about the tolled, the debt was aquired in the state in NV, i live in cali right now, have since 4/2004, since I have no plans to move back to NV does that mean they can sue me no matter what even 10 years down the road?
what if this account was "assigned to the collection agency, and since the apt complex isnt under same management and the new management doesnt have access to any records cause they said they were deleted, then can the CA still collect the money? or would they have to proove validation?

also the rent is $650 we got one month for free but we did put down a deposit, so we owe for 2 months rent, the month we got free and the last month of the lease, shouldnt they minus out the amount of the deposit? or if after we pay, wouldnt they have to refund us the deposit? we did leave the apt in the same condition that we got it when we rented it

 

[JohnMacek]

I misunderstood the question. I thought the debt was incurred in CA and you now live in NV.

The SOL is still "tolled", although I would doubt that anyone would be trying to collect on it after 10 years. SOL is an affirmative defense, so if you do get a summons, be sure to include it in your answer. The burden of proof would then shift to the plaintiff to show that it has not expired. I know a few collection attorneys who will file a motion to dismiss if any answer is filed to the complaint. They (the attorney/collection agency/assignee) don't want a costly legal battle, so they just go one to the next debtor and get a default judgment.

If the are able to effect "proper service" upon you, they may get a judgment. I highly doubt they would try to, and there are numerous ways to deal with that if/when it happens. I wouldn't worry about it.

In terms of the Collection Agency's right to pursue the claim, as long as the claim is assigned to them, the have all the rights and remedies as the original creditor, regardless if the original creditor is around or not. The are still obligated to "provide verification" of the debt as long as you request it within 30 days of their initial collection notice, and to do the same if you dispute it with the credit reporting bureaus.

In terms of the one month free issue, most agreements that I have seen will invalidate the free/discounted month(s) if you default on the lease agreement.

In California, the landlord must provide you with a statement detailing where you security deposit went, and provide you with the remaining balance (if any) within 21 days. Nevada may have a similar law. If they failed to comply as proscribed by law, you may have a valid dispute to the amount owing (possible the entire balance). In Ca, the landlords failure to return the deposit and/or the statement of deposit disposition usually negates their claim to the deposit and may subject them to damages if it can be proven that the deposit was withheld in "bad faith", but, again, you would have to research the laws in Nevada.
Hope this helps

 

[ferrellbunch]

Huh?

I am still not understanding what "tolled" means, can you explain what that means? i do remember that the agreement in the lease said that if we break our lease that we would have to pay for that month we got free, what i dont understand is why the collection agency is charging so much, the 2 months worth of rent is only $1300 we paid a $350 deposit and with the amount due now $1708 their charging 10% interest, Nevada's legal rate is 9% so not only are they overcharging us on the interest they are not minusing out the $350 deposit we paid and they didnt apply towards the balance, also i am interested in knowing how come they never contacted us after that phone call or never sent us to court, were they bluffing? we never recieved a dunning letter, i am tempted to dispute it with the 3 CRA's, the collection agency is NOT reporting accurate information. what else do I do at this point?

 

[JohnMacek]

Tolling of the statute means that the time limit for the creditor to take legal action on their claim is "frozen". This happens for various reasons, usually when the defendant is disabled and unable to act on their own behalf.

I need to ask this, are you willing to pay what you owe?

As for the alleged usury interest, read your contract/lease agreement carefully, it speak to a higher interest rate. Usually the security deposit gets eaten up by cleaning charges (extremely likely as it was only $350). Send the CA a certified dispute letter, and see how they respond. You can try and ask for the back-up (documents detailing the amount owed), but they most likely will not give it to you. Since you admit that you owe at least something, i would work out a settlement or payment arrangement with the collection agency.