Recently I had a client come into my York, PA office with a credit card lawsuit.  He had been sued for a credit card that he stopped paying on a little more than three years ago.  Thirty-eight months to be exact.

In PennsylvaniaPast Due Bill, the statute of limitations on debt is four years (42 Pa. C.S. 5525(a)), and the complaint was served with a copy of the signed credit card agreement (I hadn’t seen a hard-signed agreement in years).  

My client thought he was sunk.  There were a couple of problems with this.  First of all, it wasn’t the original credit card, Aria, suing him.  Secondly, the contract was very difficult to read, with most of it in four-point font.  Always check the fine print!

The first thing I looked at was the sales agreement from Aria to the debt-buyer.  The agreement was proper and unlike a lot of other agreements, it actually indicated the account number as one of the accounts sold.  There was no debate that the account had been properly sold to the debt buyer.

These guys are getting better, I thought as I got a magnifying glass out to read the agreement.  I was looking for a choice of law clause which is a tactic that I have used in court before.  

Most of the time, the choice of law clause indicates that South Dakota or Ohio law is the body of law that governs the credit card agreement, but on this particular Aria credit card, the law of the Commonwealth of Virginia is what governs the agreement.Game Over

Virginia’s statute of limitations on debt is three years, so if Virginia’s law is applied, the debt is time-barred.

So did the judge buy it?  Yes, the judge bought that argument and the case was dismissed.  Sometimes the fine print works in the consumer’s favor.  Most of the time it doesn’t though, so if you find yourself being sued by a debt-buyer or a credit card company, feel free to email me at jim@padebt911.com or call 610-928-1233 for a free consultation.

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As I have discussed many times, a proof of claim in Chapter 13 bankruptcy is filed by a creditor seeking to be paid for their debt.  bank_error_in_your_favor

When a proof of claim is invalid, I will object to that proof of claim, and often times I save my clients thousands of dollars when the claim is invalidated by the court.

There are even new ways to challenge a proof of claim in bankruptcy court.

I’m starting to wonder if these improper proofs of claim are FDCPA violations.  The FDCPA stands for Fair Debt Collection Practices Act.  This law outlines what debt collectors can and cannot do when collecting debt.

Breaking in house15 U.S.C. 1692f of the FDCPA states that “a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.”

Filing a proof of claim in bankruptcy is the only valid attempt at collecting a debt, but is it unfair or unconscionable to attempt to throw a fastball by a Debtor’s attorney and submit an invalid proof of claim to the court?

I think it might be.  If a creditor cannot reasonably expect to prevail in a state court debt collection action, it is unfair and unconscionable to waste a Debtor’s time and resources objecting to a proof of claim.  Businessman sat in corner wearing dunce hat

Creditors better make sure they have their act together, they may be violating the FDCPA by just conducting business as usual.

If a debt collector is driving you nuts and you think you have nowhere to turn, you have found the right place.  The law says creditors have to prove their case to collect and that you have the right to defend the case.  Your rights are worthless if you do not enforce them.  Call 610-928-1233 or email jim@padebt911.com and let me make sure you actually owe the money.  You don’t have to do this alone.

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Advice on Raising Daughters, Because No One Is An Expert, We Are All Just Learning

June 12, 2013

This post isn’t going to be about Chapter 7 or Chapter 13 bankruptcy.  It isn’t going to be me spiking the football about another flawless victory in court.  I’m not going to have any insight on personal finance (well maybe a tiny bit) and this is unlikely to make any law journal, magazine, or even […]

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Awesome New Tactics In Objecting To Proofs Of Claim in Pennsylvania Bankruptcy Cases

June 4, 2013

One of the most important aspects of Chapter 13 Bankruptcy is the proof of claim. As I explained in a previous post, a proof of claim is what a creditor files to get paid in a Chapter 13 bankruptcy case. One of the things I do better than any attorney in this district is object […]

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But If I File Bankruptcy They Will Take All My Stuff…

June 3, 2013

That would be right unless your replaced all of with NONE OF. That’s right, in most Chapter 7 and Chapter 13 Bankruptcy cases, the trustee (the man or woman appointed to supervise your case) cannot take anything from you. The reason they can’t is something in Bankruptcy law called exemptions. An exemption is something you […]

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Driving an Old Car Into Bankruptcy, Why That Old Car May Actually Help You Qualify

May 30, 2013

I’m not having a great day with cars.  My 2002 Chevy just popped up a warning lamp, and anyone who has experience with the Chevy Venture knows that it is very much a money-pit. I have written previously about not driving a new car into bankruptcy and I’m definitely not against people driving nice cars […]

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Foreclosure Lawsuit: Anything That Could Have Been Done Wrong Was

May 21, 2013

Pennsylvania is a judicial foreclosure state.  What that means is for a lender to foreclose on your home, they must get approval from a judge to foreclose. The first step to foreclosing in Lehigh County is to file an Act 91 notice.  An Act 91 notice is a notification from your lender that you have […]

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In Defending a Mortgage Foreclosure Case, Ask What Is Missing?

January 8, 2013

I hate to admit it, but foreclosure attorneys in Pennsylvania are getting better… much better. Mistakes that were being made three years ago aren’t happening anymore.  Now when I get a foreclosure action to defend, I no longer have the automatics to fall back on. The automatics are things opposing counsel did every time that […]

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Debt Collectors Make New Year’s Resolutions Too and It Could Cost You Your Tax Refund!

January 2, 2013

Another year has come and gone.  It is time for reflection and for some, a time of redemption, but for most it is a time of resolutions. This is the year I’m finally going to lose forty pounds.  This is the year I’m finally going to learn to speak Klingon.  This is the year I’m […]

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My Bankruptcy Case Was Closed Without a Discharge… Now What?

October 18, 2012

You get a letter in the mail from the bankruptcy court saying your case is closed and you did not get a discharge. Ugh! Depending on what attorney you hired, you probably spent a lot of money to get that discharge and instead of getting to the finish line you’re told you went through the […]

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