Legal Question in Credit and Debt Law in Georgia

Yesterday, I received a call on my cell phone from a debt collector from an account that the statute of limitations expired on a year ago. By responding to this call and almost going through with a payment arrangment, did this restart the clock on the statute? I acknowledged the debt and made arrangements to pay it. But at the last minute, I backed out of the agreement. She wanted info to my banking account to deduct the amount each month, and I declined. Second question...Can the debt collector call me on my cell phone if it wasn't given to the original creditor? The original account holder never had this phone number because I've only had it approximately 5 yrs, and this account is 7 yrs old. After reading some info, I read that creditors aren't allowed to call cell phones unless it was in the original creditors files. Is this correct? What are my legal rights at this point? Thank you.

Asked on 10/15/12, 1:52 pm

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Yes, the debt collector can call your cell phone, provided the debt collector did not use an auto-dialer. I am not aware of anything that would prohibit that. If another attorney out there knows of anything to the contrary, please share! People move or change jobs/phones all the time so it does not seem logical. However, just because the phone rings does not mean that you are obliged to answer the call.

I make it a practice not to answer calls from telephone numbers which I do not recognize or where no information is given about the caller. If its important, the caller will leave a message and debt collectors usually leave a message.

Your verbal promise to pay should not have re-started the debt. Its a blessing that you did not make a partial payment as that can re-start the statute of limitations.

GA laws state:

9-3-110. New promise to be in writing

A new promise, in order to renew a right of action already barred or to constitute a point from which the limitation shall commence running on a right of action not yet barred, shall be in writing, either in the party's own handwriting or subscribed by him or someone authorized by him.

9-3-112. Payment or written acknowledgment equivalent to new promise

A payment entered upon a written evidence of debt by the debtor or upon any other written acknowledgment of the existing liability shall be equivalent to a new promise to pay.

So you appear to be ok because you did not make a written acknowledgment or make a partial payment.

It is not unlawful for a debt collector to try to collect on a debt barred by the statute of limitations. It also is not a violation of law for the owner of the debt to try and sue you. The statute of limitations is a legal defense that you raise in a court of law. So if you are sued, you have to raise it in an answer to the complaint. If you are sued, you need to contact an attorney immediately about this.

It is equally your right to dispute the debt and tell the debt collector not to bother you anymore about this debt. The debt collector is required by federal law to send you a letter about the debt. You need to dispute the debt in writing and send the debt collector what I affectionately call a "drop dead" letter. If you google the term "drop dead" letter you will find samples on the internet. Basically, you advise the debt collector that collection of the debt is barred by the statute of limitations and that the debt collector is not to bother you any more about the debt. The statute of limitations is 6 years in GA for a credit card debt. Usually, the statute runs from the date of your last payment.

Never ever talk to a debt collector. They are trained to get your bank account information and get you into a payment arrangement as you found out. That's because they get a commission on how much they bring in. Let this be a lesson to you and others - if you get stuck talking to a debt collector, follow this script: (1) find out who is calling - get the name of the debt collection agency, address and name of person calling and his/her extension; ask if the call is recorded; (2) ask if the call is recorded (it is but you want to get this confirmed); (3) ask f the debt collector sent you a written letter about the debt - if yes, ask where it was sent; if no, then advise that the debt collector is required under federal law (the Fair Debt Collection Practices Act or "FDCPA") to send you a letter about the debt; (4) confirm your current address; (5) tell them you will wait for the letter; (6) indicate that you have been advised of your rights under the FDCPA; and (7) hang up. That is how to deal with a debt collector. Better yet, don't even answer the call.

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Answered on 10/15/12, 10:56 pm

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