Novation, Re-aging and Reviving Debt
This article is a companion article to Reviving Expired Debt through Trickery. Together they discuss a major hazard to pro se litigants and other persons dealing with debt collectors and banks without legal representation, namely the revival of debts that have (or would) expire due to statutes of limitations.
If you are troubled by debts – and specially if you are being troubled by debt collectors, you no doubt are aware that law and the passage of time eventually will put an end to most of those troubles. The debts themselves have statutes of limitations regarding collection, and there are other legal mechanisms that limit the time liability exists. Bankruptcy can also instantly expire a debt, of course, under certain circumstances. In addition, the FDCPA and Credit Reporting Act limits the length of time, and the circumstances under which, bad news can be reported to the public. If you sit tight long enough, then, and do not do anything regarding specific unpaid debts – while at the same time taking certain other, beneficial actions, you will eventually restore your credit rating.
Debt collectors hate all that. They do a lot to try to patch things together to keep it from happening.The result is a Frankenstein for the consumer.
Small Payments
Have you ever wondered why debt collectors are often willing to accept small, token payments from you in response to a collection call? There are at least three good reasons for this willingness. First, they know that if you accept responsibility for the debt and make a payment, however small, you will be much more likely to pay more at a later time. In his book, Influence, Robert Cialdini calls this the pressure of “consistency,” and its power to affect you should not be underestimated. Second, they know that if you accept responsibility for the debt and pay it, you are making a legal admission, of a sort, that the debt is yours. They will argue – likely with considerable effect – that you would not have made this payment if the debt was not yours, and some courts have admitted this as evidence of a debt’s legitimacy. And third, sometimes the payments can be used to extend the statute of limitations of the debt.
The FCRA prohibits deliquent accounts that are charged off or place for collection from being reported to the credit bureaus beyond 7 years plus 180 days from the date of first delinquency. Of course, if this delinquency is erased, it will start the clock running again. Under certain circumstances, your agreement to make a payment to a bill collector can restart the clock again in probably every jurisdiction. That is, if you and the bill collector agree that your payment will be accepted in lieu of any other penaties or payments for a certain time, this arrangement probably amounts to a “novation.”
Novations
Novations are agreements that supercede and replace previous agreements. They can refer to an agreement that transfers a debt to someone else and eliminates the original party’s liability (as in certain subleasing arrangements, for example), or they can refer to an agreement that substitutes on form (or amount) of debt for another one (as in court settlements, for example). If you agree with the debt collector that your payment will somehow wipe out or satisfy other debts, you may have worked a novation by the terms of any state’s laws. Notice that there should at least be some conscious give and take between debt collector and consumer under this approach – the agreed payments have to wipe out the delinquency.
Other forms of novation are a little more questionable or state-specific. Debt collectors will always argue that any payment made changed the nature of a delinquency and resulted in a period of “working things out.” They argue from this that – at least for some period of time — the statute of limitations is or should be “tolled” (put on hold) while the parties see whether they will be able to work things out. The law generally favors parties being able to settle their differences, and so this interpretation of the law, which takes some of the time pressure off the debt collector and allows it to be more flexible in negotiating, can be persuasive. Statutes of limitations are frequently tolled under various “equitable” conditions (meaning the courts have some ability to create and enforce these conditions). See, Estoppel, Claim and Issue Preclusion, for a more detailed discussion of this power and its uses.
And there is another, very questionable type of novation that has been accepted by many courts – the “account stated” theory of liability. In this theory, persons with an account to a creditor where they regularly receive statements are considered to be agreeing to the statements and accepting them as accurate unless they actively disagree with them. Failure to pay this amount then breaches a “new” agreement and has a statute of limitations independent of the charges that may have gone into that amount. In California, among other places, this can extend the statute of limitations considerably as well as reducing the burden of proof. (As an aside, I have developed a product that helps people being sued under this theory of account stated, which I consider an unjust and unwarranted misreading of the law). It is, in other words, a form of novation.
Re-Aging Debt
In addition to re-aging debt through novation or various equitable principles as discussed above, there is also a more devious, and blatantly illegal, method of changing the debt to extend the time for collection. That is simply to rewrite the date of first delinquency of the debt using a later date. This allows collection efforts to continue longer than legally allowed, and it also allows reporting to the credit bureaus to continue beyond the allowed seven years. This practice is apparently wide-spread, and it may be more effective than one would expect because consumers are sometimes not aware of statutes of limitations and reporting cut-off dates, and they are frequently not aware of their “first delinquency” dates.
Reviving Debt
After a debt has been discharged in bankruptcy or expired by a statute of limitations, it cannot be collected through the legal process. At least some courts have held, however, that a “moral” duty to pay remains and allows debt collectors to continue to pursue the debt (through extra-legal methods) presumably till doomsday. As anyone who has read my materials should know, I do not believe there is any “moral” duty to pay a debt collector – the duty is purely legal, and when this duty expires, so should the right of the debt collectors to pursue it. But at least some courts don’t see it that way, and this supposed “moral” duty is allowed to empower the debt collectors to make new agreements that revive old debts. Any attempt to make new deals that extend the life of a debt should be looked at with a dim view.
Reviving Expired Debt through Trickery
Reviving Expired Debt through Trickery
The banks are always trying to revive debt, through fair means or foul. Here’s a trick you need to be alert for: issuing you a new card with an old balance on it.
The Scam
Here’s how the scam works. I’m sure you know all about statutes of limitations and the way they eventually operate to make old debts uncollectable through lawsuits. But this legal inability does not stretch to a practical prohibition. In other words, just because the debt collectors (or banks, in this case) can’t sue you, they can keep trying to get you to pay the debt back “voluntarily.” And they know that people who have had trouble paying off their debts in the past also have trouble getting credit now – after all, they do their best to make that so.
So here’s what they do: they send credit card offers to the people they can no longer sue, offering them credit cards with reasonable rates and no annual fees – but the only problem is that the cards carry the balance of the old debt. Accepting and applying for the card simply requires accepting responsibility for the debt. http://finance.yahoo.com/news/bringing-expired-debt-back-to-life.html.
What they Don’t Tell You
What the banks don’t tell you is that once you accept renewed responsibility for the debt, you have created an entirely new obligation to the old debt with an entirely new statute of limitations. If anything happens to prevent you from paying the whole amount – at any time – they’ll be free to sue you for the whole amount – at any time within the next several years.
Is it Really a Scam?
There are certainly deceptive features of the program – and a lot of opportunism. People are not generally told or reminded that the debt that is being revived is out of the statute of limitations and couldn’t be collected by lawsuit. And in my opinion, that essential deception suggests that the bankers regard their actions as a scam. Why hide the information if they’re offering such a good deal? Still, it does offer people with troubled debt history access to some credit, and it may be the only opportunity they have. Whether the bank will continue to extend credit after the credit balance is restored to zero (paid off) is a question I have, although it would seem to be in their interest to do so.
Warning
If you get one of these offers, think very carefully before you accept. Doing so will revive a potentially crippling debt that you had escaped and will probably not have any impact on your actual credit score, but it might bring you access to credit that would be otherwise unavailable. Before accepting such an offer, you should certainly make sure you do not, in fact, have other access to credit. Would your credit union, for example, lend you money if you kept a balance with them? How large would the payments on the new card be? How many such payments would it take to equal the amount of credit the card would extend? (i.e., suppose they offer you a card carrying a balance of $5,000, giving you minimum payments of $250 per month, and offering you a credit limit of $300 over that. After a little over a month, if you just saved the money, you would have more money than you would be able to borrow on the card.)
Conclusion
There might be better ways to restore your prosperity than paying a lot of money to someone you don’t owe anything.
Novation Reaging and Reviving Old Debts
Novation, Re-aging and Reviving Debt
This article is a companion article to Reviving Expired Debt through Trickery. Together they discuss a major hazard to pro se litigants and other persons dealing with debt collectors and banks without legal representation, namely the revival of debts that have (or would) expire due to statutes of limitations.
If you are troubled by debts – and specially if you are being troubled by debt collectors, you no doubt are aware that law and the passage of time eventually will put an end to most of those troubles. The debts themselves have statutes of limitations regarding collection, and there are other legal mechanisms that limit the time liability exists. Bankruptcy can also instantly expire a debt, of course, under certain circumstances. In addition, the FDCPA and Credit Reporting Act limits the length of time, and the circumstances under which, bad news can be reported to the public. If you sit tight long enough, then, and do not do anything regarding specific unpaid debts – while at the same time taking certain other, beneficial actions, you will eventually restore your credit rating.
Debt collectors hate all that. They do a lot to try to patch things together to keep it from happening.The result is a Frankenstein for the consumer.
Small Payments
Have you ever wondered why debt collectors are often willing to accept small, token payments from you in response to a collection call? There are at least three good reasons for this willingness. First, they know that if you accept responsibility for the debt and make a payment, however small, you will be much more likely to pay more at a later time. In his book, Influence, Robert Cialdini calls this the pressure of “consistency,” and its power to affect you should not be underestimated. Second, they know that if you accept responsibility for the debt and pay it, you are making a legal admission, of a sort, that the debt is yours. They will argue – likely with considerable effect – that you would not have made this payment if the debt was not yours, and some courts have admitted this as evidence of a debt’s legitimacy. And third, sometimes the payments can be used to extend the statute of limitations of the debt.
The FCRA prohibits deliquent accounts that are charged off or place for collection from being reported to the credit bureaus beyond 7 years plus 180 days from the date of first delinquency. Of course, if this delinquency is erased, it will start the clock running again. Under certain circumstances, your agreement to make a payment to a bill collector can restart the clock again in probably every jurisdiction. That is, if you and the bill collector agree that your payment will be accepted in lieu of any other penaties or payments for a certain time, this arrangement probably amounts to a “novation.”
Novations
Novations are agreements that supercede and replace previous agreements. They can refer to an agreement that transfers a debt to someone else and eliminates the original party’s liability (as in certain subleasing arrangements, for example), or they can refer to an agreement that substitutes on form (or amount) of debt for another one (as in court settlements, for example). If you agree with the debt collector that your payment will somehow wipe out or satisfy other debts, you may have worked a novation by the terms of any state’s laws. Notice that there should at least be some conscious give and take between debt collector and consumer under this approach – the agreed payments have to wipe out the delinquency.
Other forms of novation are a little more questionable or state-specific. Debt collectors will always argue that any payment made changed the nature of a delinquency and resulted in a period of “working things out.” They argue from this that – at least for some period of time — the statute of limitations is or should be “tolled” (put on hold) while the parties see whether they will be able to work things out. The law generally favors parties being able to settle their differences, and so this interpretation of the law, which takes some of the time pressure off the debt collector and allows it to be more flexible in negotiating, can be persuasive. Statutes of limitations are frequently tolled under various “equitable” conditions (meaning the courts have some ability to create and enforce these conditions). See, Estoppel, Claim and Issue Preclusion, for a more detailed discussion of this power and its uses.
And there is another, very questionable type of novation that has been accepted by many courts – the “account stated” theory of liability. In this theory, persons with an account to a creditor where they regularly receive statements are considered to be agreeing to the statements and accepting them as accurate unless they actively disagree with them. Failure to pay this amount then breaches a “new” agreement and has a statute of limitations independent of the charges that may have gone into that amount. In California, among other places, this can extend the statute of limitations considerably as well as reducing the burden of proof. (As an aside, I have developed a product that helps people being sued under this theory of account stated, which I consider an unjust and unwarranted misreading of the law). It is, in other words, a form of novation.
Re-Aging Debt
In addition to re-aging debt through novation or various equitable principles as discussed above, there is also a more devious, and blatantly illegal, method of changing the debt to extend the time for collection. That is simply to rewrite the date of first delinquency of the debt using a later date. This allows collection efforts to continue longer than legally allowed, and it also allows reporting to the credit bureaus to continue beyond the allowed seven years. This practice is apparently wide-spread, and it may be more effective than one would expect because consumers are sometimes not aware of statutes of limitations and reporting cut-off dates, and they are frequently not aware of their “first delinquency” dates.
Reviving Debt
After a debt has been discharged in bankruptcy or expired by a statute of limitations, it cannot be collected through the legal process. At least some courts have held, however, that a “moral” duty to pay remains and allows debt collectors to continue to pursue the debt (through extra-legal methods) presumably till doomsday. As anyone who has read my materials should know, I do not believe there is any “moral” duty to pay a debt collector – the duty is purely legal, and when this duty expires, so should the right of the debt collectors to pursue it. But at least some courts don’t see it that way, and this supposed “moral” duty is allowed to empower the debt collectors to make new agreements that revive old debts. Any attempt to make new deals that extend the life of a debt should be looked at with a dim view.
Settling with the Debt Collector
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Giving Debt Collectors Money
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What is Case Worth to a Debt Collector
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What to Do if Sued for Debt
What to Do if You’re Being Sued for Debt
If you are being sued for a debt, you may be intimidated or even feel panicked. You may be considering giving up, but there is really no need for you to do that. You have an excellent chance to win if you will just fight a little bit. If you’re being sued on a debt and want to know what your options are, watch this video.
If You Are Already Being Sued
If you are already being sued, you probably should not wait for anything. You need action now. You should be doing things to protect yourself NOW. You can beat them – it’s mostly a question of knowing what you need to do and doing that thing throughout the lawsuit, while at the same time not doing the things you should not do, until you either make them go away or win at trial. It sounds simple, and it is – if you know what you’re doing.
The purpose of our debt defense memberships is to help you know and do the things you need to do. And avoid the things that might hurt you.
I have had a great deal of experience both as a litigator and web master and have realized that almost every person representing himself or herself in a debt case would do much better if
Our membership and resources do that. They certainly will not take all the work, or much of the learning, out of it, but any of our memberships will dramatically increase your chances of winning and reduce the amount of work you have to do.
If You Are Not Already Being Sued
If you are not already being sued, and want to try to negotiate with the debt collectors or creditors to clear up your credit report or make sure they do not sue you, then you may want our Debt Negotiation Membership.
Not all negotiation and settlement happens in court, you know. It is possible to contact many creditors and debt collectors to work things out without a law suit. But – whether there is a lawsuit or not, all negotiations occur “within the shadow of the law.” That is, in order to negotiate effectively, you need to know what their rights are, and what your rights are, in the law. What can they do to you if you do not settle? And what can you do to them? Knowing the answers to these questions helps you handle the fear and uncertainty that haunts so many people as they try to get a grip on their financial lives. You can find the answers you need.
And after you find the answers that lie behind the debts, you still need to know what to say and how to say it. You’ll find plenty of help with that, too. You see, it makes a large difference who you’re talking to and where in the debt collection process you are. We do not offer empty formulas, but rather solid understanding of what they are after, what you might want or get… and a few suggestions about how to say things so you’ll get them.
Four Sneaky Tricks to Get You to Default
Four Sneaky Tricks by Debt Collectors to Get You to Default
Debt collectors make their money by scaring, or tricking, people into forfeiting their rights to defend themselves. Often they will let you think you have come to some sort of agreement with them to avoid court (and judgment), they won’t work with you to accommodate your schedule, and general try to intimidate and scare you into staying away from court. Here are some of their more common tricks. Check out the Debt Defense System and materials for things you can do if debt collectors try these on you.
Four Dirty Tricks and What to Do about Them
Debt collectors use many dirty tricks to try to scam, threaten, trick, or intimidate you into paying. This video goes into a few of those, and what you can do about them.
In this video, we discuss four tricks and point you to the sections of the Fair Debt Collections Practices Act that makes them illegal.
It is illegal for the debt collector to threaten to take legal actions that it cannot legally do. This would include threats of imprisonment, public humiliation, or garnishment or seizure of your wages.
It is also illegal for them to communicate untrue information or, where you have disputed the debt, to report the debt without mentioning that you did dispute.
Sometimes debt collectors will pretend to be various types of authority figures – and sometimes they will send a collection letter that looks either like a lawsuit or a judgment or other information from a court. Any form of deception about who is sending the letter to you, whether that deception takes the form of an actual lie or simply deceptive looking information, would also violate the Fair Debt Collection Practices Act.
If you think the debt collector has violated the law, or if you need to defend yourself from a lawsuit, be sure to check out our Debt Defense System – it will give you what you need to understand what you are facing and the help you need to defend yourself effectively from the debt collectors.
Check out our Guide to Legal Research and Analysis
If You Are Already Being Sued
If you are already being sued, you probably should not sign up for the course and wait for anything. You need action now. You should be doing things to protect yourself NOW. You can beat them – it’s mostly a question of knowing what you need to do and doing that thing throughout the lawsuit, while at the same time not doing the things you should not do, until you either make them go away or win at trial. It sounds simple, and it is – if you know what you’re doing. You can no those things with the Debt Defense System and get help doing the right things while avoiding the worng ones.
I have had a great deal of experience both as a litigator and web master and have realized that almost every person representing himself or herself in a debt case would do much better if (1) they have an opportunity, preferably on a regular basis, to talk to other people who can help them with insights and information; and (2) a lot of the work done for them. The Debt Defense System does that. When you buy the Debt Defense System, you will also get a membership which both allows you to use the full resources of Your Legal Leg Up’s website and participate in our weekly teleconferences where members speak to each other and Your Legal Leg Up’s staff.
Just think about how it will be, first when you walk away from the debt collectors who have been making your life miserable, and then as you move towards a life of greater freedom and happiness – free from debt, and free to build your future.
The Debt Defense System is a service designed to give you all the materials and support you will need to defend yourself from either the debt collectors or original creditors without having to hire a lawyer.
If You Are Not Already Being Sued
If you are not already being sued, and want to try to negotiate with the debt collectors or creditors to clear up your credit report or make sure they do not sue you, then you will want our Debt Negotiation System.
Not all negotiation and settlement happens in court, you know. It is possible to contact many creditors and debt collectors to work things out without a law suit. But – whether there is a lawsuit or not, all negotiations occur “within the shadow of the law.” That is, in order to negotiate effectively, you need to know what their rights are, and what your rights are, in the law. What can they do to you if you do not settle? And what can you do to them? Knowing the answers to these questions helps you handle the fear and uncertainty that haunts so many people as they try to get a grip on their financial lives. You can find the answers you need.
And after you find the answers that lie behind the debts, you still need to know what to say and how to say it. You’ll find plenty of help with that, too. You see, it makes a large difference who you’re talking to and where in the debt collection process you are. We do not offer empty formulas, but rather solid understanding of what they are after, what you might want or get… and a few suggestions about how to say things so you’ll get them.
Discovery key to victory in debt litigation
We talk a lot about how many debt defendants default on their lawsuits – or show up just to give up via settlement. It is also true that many debt defendants either feel so righteous or so helpless, or so confident for one reason or another, that they defend themselves without adequately preparing for the case. This is a recipe for disaster for these defendants – and hurts other debt defendants, too. That’s because the judges get used to substandard cases from debt defendants and stop paying attention.
And THAT’S on top of the fact that most judges identify with the wealthy – and are wealthy – or at least identify with the lawyers. The guy representing the debt collector may not have golfed with the judge, but chances are good that the judge has golfed with a friend of his.
It’s a club, and you’re not in it.
For you to have a chance, you have to do something to stand out and apart from all the other people filing through the courtroom every day. You have to take some action that will allow the judge to get to know you a little bit – just enough to pay attention to you and the law. And of course you must know the right law so that you can explain that other hurtle – the judge’s ignorance.
I’m Not Saying, I’m Just saying…
A lot of judges are quite smart, and some… not so much. But you must realize that judges handle potentially thousands of cases per year, and in the case of judges dealing with debt cases, that number could be in the tens or even hundreds of thousands, of cases. They’re busy, and they barely have time to learn the fine points of the law if they don’t already know them. And most of debt law is both controlled by the fine points of laws and rules, and unknown to most lawyers. There is a very good chance, in other words, that your judge DOES NOT KNOW the law you’re depending on. And he or she barely cares. How do you break through?
Discovery – the Key to Your Best Chance
Ironically, the debt collectors will always object to all or almost all of your discovery, and this will give you an excellent reason to learn much more about the law in a useful context. Even more importantly, it will give you a reason to practice talking to the court and an opportunity to make yourself known to the judge. And it gives you the excuse to start educating the judge on what HE needs to know in order to be fair to you.
You need to discovery to have a good chance to win. And if you do it, you also dramatically increase the chances that the debt collector will walk away from your case long before trial.
What to Expect your First Day of Court in Debt Defense
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Should you settle or fight with debt collectors
If you’re being sued by a debt collector and just received the “summons” (your notice to appear in court), you may be tempted to call the company and make a deal or not to go to court at all. People do this because they’re afraid, feel guilty, or think they can protect their money or credit reports if they are “reasonable” with the debt collector. It’s usually a mistake.
Let’s take these “reasons” one at a time.
FEAR
As you will see, there is little to fear if you stand up for yourself.
The Good
With a little help, you have a good chance to win the lawsuit even if it goes to trial. But whether or not you could actually win the suit, you may be able to raise the debt-collector’s cost of suing you to the point where it gives up long before the case goes to trial anyway. As one person put it:
And if your fear is that the debt collector will suddenly take your bank accounts or garnish your wages, then you should know that they cannot do that without a judgment, which they can only get by formally winning the lawsuit against you and getting a judgment.
The Bad
If you look at the “Petition” (the suit itself), you will see either that it does not seek attorney’s fees at all, or that it seeks about 15% of the overall amount for fees. The debt collector is seeking this amount whether or not you fight, and if you do fight, the amount will hardly ever go up. That’s true with all the other amounts being sought, too. Chances are, the suit is already asking for the most you could lose. Therefore you have little or nothing to lose by fighting.
And since you won’t have to pay the debt collector anything if you win, and you have a good chance of winning if you fight-if you know what you’re doing- then you have everything to win.
The Ugly
The debt collectors love to get people to sign “consent judgments.” That judgment means they could take the money in your bank accounts and start garnishing your wages if you miss a single payment. If you fight and win, there will be no judgment against you, and even if you lose or settle, chances are it won’t happen for many months. And usually the debt collectors will make a better deal with you later on than they will at the beginning. Again, you have little to lose, and much to gain, by fighting.
GUILT
Many people feel guilty about not paying the bill they’re being sued for if it looks anything like a bill they know they didn’t pay. Most people want to pay their bills. They want to do the “right thing.”
Remember that you never borrowed anything from the company that’s actually suing you, and they never did anything for you. The company you borrowed from sold the debt to debt collectors, usually for a very small fraction of the face amount. Therefore, giving the debt collector money does not help the people you actually borrowed from. And the people you’d be giving your money may or may not actually own the debt. Lots of people have been sued by people who didn’t even own the debt.
Debt collectors are scavengers who feed off the troubles of people having hard times. If you have some extra money, couldn’t you think of a better way to spend it?
CREDIT HISTORY
You may think that making a deal with the credit card company will help your credit score or make another creditor look on you more kindly. Unfortunately, this is probably not true. By the time the debt goes to the debt collector, most of the damage has already been done to your credit report. Just about the only bad thing left that could happen is a judgment. And most people who settle with the debt collector give it a judgment.
CONCLUSION
In reality settling is usually the worst thing you could do to your credit history. We think you should fight. But even if you do want to settle, the Debt Defense System will tell you how to do so without harming your credit history more than necessary.