Tolling Of The Statute of Limitations In New York
Hi,
Does anyone know if New York state tolls (suspends) the 6 year Statute of Limitation clock on credit card debt? A collection agency who is suing me (court date scheduled for late November 2007) is claiming that I made a payment on an account that was charged off in March 2000.
The collection agency is asserting that I made a payment to a previous debt collector (the debt collector who is suing me purchased this account from a prior debt collector via assignment) on October 8, 2002; thus restarting the Statue of Limitation clock on this type of debt in New York. Is this correct? If so, would the current debt collector merely need to show their account statement as proof of payment, or must they also produce evidence such as a cancelled check? Would the producing of this account statement negate their need to provide a copy of the original credit card application containing my signature?
Thank you in advance for your assistance.
Re: Tolling Of The Statute of Limitations In New York
The issue isn't tolling - it's novation.
Tolling means that something happens which causes the statute of limitations to temporarily stop running. A novation causes the statute of limitations to start all over again.
Did you make the payment?
Re: Tolling Of The Statute of Limitations In New York
Thank you for the clarification.
I don't know if I made the payment or not. This was an awfully long time ago and so I am not sure. However, I don't think I should base whether or not I made the payment solely on the claim of the collection agency. Is that right?
Thank you.
Re: Tolling Of The Statute of Limitations In New York
They're suing you, so make sure you raise the statute of limitations as an affirmative defense and see what evidence they produce of the payment.
Re: Tolling Of The Statute of Limitations In New York
Ok, thus far, I have sent them a demand for a Bill of Particulars. Here is a copy of a post that I placed in a different section; thank you again for your help:
Hi everyone,
I will try to be as succinct as possible with respect to the facts of my case. As the result of a lawsuit that was filed against me in New York, I sent the debt collection a demand for a Bill of Particulars. The debt collector that is suing me inherited the debt via assignment from a previous debt collector. Here is a breakdown of the responses I received to some of the questions posed in my demand:
1. The transfer rights to this debt was executed by assignment.
2. The debt collector claims that it mailed verification letters on several different occasions.
3. When I posed the question "Does there exist a verifiable, bona fide, original instrument between the debt collector and alleged debtor containing the alleged debtor's bona fide signature," the response was that "Discovery and investigation are on-going and continuing."
4. When I posed the question "Does evidence exist of verifiable external acts(s) verifiable he objective semblance of agreement between debt collector and alleged debtor," the response was "Objection. Request is vague and ambiguous. Without waiving said objection Plaintiff states that investigation and discovery are ongoing."
In an affidavit from the Records Custodian for the debt collector, the Records Custodian alleges that I made the payment on the account prior to the date that the Original Creditor charged- off the account; on or about August 23, 1999. On March 31, 2000, the Original Creditor charged off the unpaid balance as uncollectible. The Records Custodian claims that I made payments to the account after this date to the previous debt collector, with the last payment being made to the previous det collector on October 8, 2002, in effect restarting the accrual date of calculation of the statute of limitations on the account. The current debt collector bought this debt on December 27, 2002. The debt collector attached a copy of what they have labeled their monthly account balance for this debt.
I was thinking of sending an additional demand for a Bill of Particulars where I would ask that the debt collector:
1. State if they have cancelled checks, cash receipts, etc., to sustain their claim that the last payment on the account was made to the previous debt collector on October 8, 2002. My thinking is that a copy of what they have labeled their monthly account balance for this debt is not sufficient in itself to prove that I made this payment(s). Is that correct? If not, what are the implications, if any, of this account statement?
2. Am I correct that the debt collector must provide a copy of the original contract with my signature, or at the minimum a copy of the account statements from the original creditor? If so, since this debt collector bought this debt from another debt collector who bought it from the original creditor, would they need to provide a signed contract with my signature, along with account statements from that debt collector as well? If no original contract with my signature can be produced, is the sale of this debt to the current debt collector from the former debt collector, along with their account statement, sufficient to prove that this debt is mine?
3. Ask them to state whether or not the original contract states the following "debtor agrees to be responsible for payment of this debt to creditor OR ITS ASSIGNS."
4. Ask them via what method they sent the verification letters i.e. regular mail, certified mail, etc. I would like to see some proof that they actually sent me the verification letters they claimed they did, but I suppose they can just claim that they sent it to my address. However, am I correct in stating that failure to dispute a debt within the 30 day time frame does not mean that I agree with the validity of the debt, that is, failure to request validation is not an admission that the debt is valid, nor does it preclude the debt collector from proving that the debt is valid.
Any assistance you can provide would be greatly appreciated. Thank you.
Re: Tolling Of The Statute of Limitations In New York
In addition to teh post where I copied and pasted text from another post, if the account statements can be utilized as "proof of payment," would you suggest that I don't bother in requesting that they produce a cancelled check(s), cash receipt(s), etc?
Also, I was thinking of submitting an "Order to Show Cause" to the court requesting that the court compel the debt collector to answer the question of whether or not there exists, and they possess, the originally signed contract with the original creditor. My thought is that if I ask the court to compel them to answer the question of whether an original contract with the original creditor signed by me exists and is in their possession, I will:
1. Find out whether or not they possess the original contract with the original creditor signed by me in 1995.
2. If they don't have the contract, then I think I am correct in assuming that whether or not they submit the account statements as "proof of payment," proof of novation and thus the beginning of a new agreement, unless they can prove the debt exists by producing the original contract with the original creditor, they cannot prove the debt exists and therefore I could ask that the court dismiss the case.
Would you agree with this strategy? Thanks again!