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Advice about lawsuit on a six year old deficiency balance

My car was repoed in 2002. Now I find out that the lender has filed suit 6 years since. What are my options?

Hi Bill, I suffered an injury in 2001 that left me permanently disabled. my car was repoed in 2002. now i find out that the lending institution has filed suit 6 years since i let the car go back, and in another state (Georgia, I live in Florida now) what are my options?

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Bill's Answer
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The first thing that you need to do is to contact an attorney licensed to practice law in Georgia who can explain your rights in this situation and assist you in responding to the lawsuit that has been filed against you. The primary question that will arise is whether or not the statute of limitations, or the amount of time that a creditor has to sue you on a delinquent account, has expired. When a vehicle is repossessed, the vehicle is generally sold at auction, and the amount received at the auction is subtracted from the balance of your debt. If there is any amount left on your balance after the amount received from the auction is subtracted, the remaining debt is referred to as a deficiency balance. You will need to discuss with your attorney Georgia's laws regarding the collection of deficiency balances. In most states, a creditor is allowed to sue the previous owner for any deficiency balance on a repossessed vehicle, but the lawsuit must be filed within a certain period of time, called the statute of limitations. In Georgia, I believe that the statute of limitations for this type of debt is six years from the date of default, though you will need to confirm this and discuss the details with your attorney to determine the best way to respond to this lawsuit. For more information about statutes of limitations, I encourage you to visit BCSAlliance.com.

From the information in your question, I assume that you lived in Georgia at the time of the repossession, but that you have since moved to Florida. If you lived in Georgia at the time you purchased the vehicle, or at the time the car was repossessed, the creditor is probably correct in filing the lawsuit against you in Georgia. Generally speaking, if a person moves to another state after signing a contract, the creditor can choose to file the lawsuit either in the state in which the contract was signed, or in the state of the debtor's current residence. Again, you need to consult with an attorney in Georgia to discuss the jurisdictional issues of your case. You should keep in mind that a judgment obtained in one state is not automatically enforceable in another state. If the creditor obtains a judgment against you in Georgia, it would need to file a motion in the county court of the Florida county where you live to "domesticate" its Georgia judgment. Unless you can show that the judgment was entered in error, or that the Georgia court which issued the judgment did not have the appropriate jurisdiction, it is likely that the Florida court will domesticate the Georgia judgment, allowing the creditor to enforce its judgment in Florida.

Since you are disabled and live in Florida, it is likely that enforcing a judgment against you will be quite difficult. The most common methods used to enforce judgments are wage garnishments, bank account levies, and property liens. Assuming that your income is primarily from disability payments, which are generally exempt from garnishment, a wage garnishment should not be a problem for you. Disability payments also tend to retain their exempt status after being deposited into a bank account, so your bank account should also be protected from your creditors, as long of you do not co-mingle your exempt disability payments with income from other sources, which could make proving the funds exempt much more difficult. If the creditor obtains a judgment against you, you may want to tell your bank that the only funds being deposited into your account are exempt disability payments, which could prevent your bank from freezing your account if the bank is served with a levy notice. If you own a home, it should also be protected from your creditors, as Florida offers a 100% exemption on a property used as a primary residence. Hopefully, these protections will prevent this creditor from causing you significant problems, even if it obtains and domesticates a judgment against you. I encourage you to discuss this situation with your attorney to determine the best way to protect your funds and property. For more information about property exemptions from judgment creditors and when filing bankruptcy, I encourage you to visit BCSAlliance.com.

Again, I strongly encourage you to consult with an attorney licensed in Georgia who can assist you in responding to the lawsuit which has been filed against you. An attorney should also be able to explain your rights in this situation, and explain the protections offered to you under Florida and Georgia law. I wish you the best of luck in resolving this debt, and hope that the information I have provided helps you Find. Learn. Save.

Best,

Bill

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12 Comments

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  • KM
    Jan, 2012
    Kim
    Homer, GA
    I am currently being contacted by Commercial Recovery Systems. After talking to the lady I realize I said to much (especially since reading your site!!!) I had a truck repo'd in 06. I never received anything on the truck and with the situation I was in I didnt think to check into that. NOW they want me to pay $28,850!!!! I know that has to be a mistake and I think that the debt collector is legit but trying to pull something also. How do I find out what the truck was sold for and my balance and if my statue of limitations are up!!! I was dumb founded when she said they would sue me!!!
    0 Votes

    • BA
      Jan, 2012
      Bill
      I am not aware of any private, state, or federal database that contains repossession and auction accounting information. Readers? Please comment below if you do.

      The only way I know of to get the information you seek is to negotiate with the original creditor or collection agent to see an accounting of the balance due on the loan at the time of the repossession, the cost of the repo and auction, and other fees, such as changing the name on the title. If the balance on the loan was $5,000 (to make up a number) and the vehicle was worth about $4,000, then a $28,850 collection account is unreasonable. On the other hand, if the balance due was $25,000, and the vehicle was a total loss, then $28,850 might be a reasonable amount due.

      You asked about a statutes of limitations. See the Bills.com resources Collection Laws & Exemptions for Each State and Which Statute of Limitations Applies to You to learn more about this subject.
      0 Votes

  • BA
    Sep, 2010
    Bill
    Consult with an attorney in your state who has experience in consumer law. If what you wrote is accurate, the attorney who altered your contract and submitted it to the court committed fraud, and at least one professional responsibility violation. You may have a cause of action against the attorney, which may result in the debt being wiped out and damages paid to you. The attorney may also be reprimanded by your state bar, or disbarred. An attorney may take your case on a contingency basis, meaning you may not need to pay anything in out of pocket costs for him or her to work on the case. Please do see an attorney about this matter -- there are plenty of good attorneys who are looking for work now, and driving out the bad ones will help make room for honest attorneys.
    0 Votes

  • 35x35
    Sep, 2010
    Beckie
    I had a revolving line of credit that i stopped paying like everyone who runs into financial issues. I was sued by a collection agency attorney who buys bad debts for pennies on the dollar and the becomes the assignee which I think is illegal. The original account was charged off of course but since the collection agency got the account they have been placing stuff on my credit report which I think is illegal also because it looks like a couple of payments were made to them and then stopped so they could say the account was defaulted with them and then sue. Now so they sue, I get tired of trying to argue with them and agree to a stipulated judgement. Their attorney sends me a stipulated judgment and a Covenant to Forbear Collections. I sign the documents made copies of them after I signed them and then sent the documents back to the collection agencies attorney so they could file them with the court. I made 3 payments since and have been requesting in writing copies of the documents that they filed with the court and receipts for the payments as well as an update on the amounts credited to the account with a current ending balance. I was told that they would not provide me receipts so I made it simple for them and sent a copy of the payment and requested a signature of the person who gets my payment and the date they receive. I send the payment certified/return receipt also. I have made 3 requests for copies of the conformed papers the attorney filed with the court and have only been told that for almost 3 months now their process server has not gotten the documents picked up from the court and returned to them. I did get however a file stamped copy of a Judgment signed by the judge, prepared by the collection agency attorney and imagine my surprise when I noted a change. The stipulated judgment I signed of course has the principal sum, accrued interest, attorney fees and an interest rate of 10% and that is exactly how it reads. The file stamped copy of the Judgment that the collection agency attorney finally sent me shows interest at the rate of 10% per annum accruing from the date of judgment. Now you can see that it was added because the line with 10% per annum was extend and the line spacing is changed. That was not the agreement that I signed my name to. This never went to trial. The collection agencies attorney prepared the docuemnts and filed them before a trial date. My question is it illegal for that attorney to change the agreement without my knowledge after I signed a stipulated judgment and what is on the documents that I signed and kept copies of is what I thought I was agreeing to. If it is illegal what should/can I do now. The collection agency attorney has me mail my payments to him and then gives the money supposedly to the colleciton agency can they be one in the same. He has been avoiding giving me copies of all the documents that he filed regarding the stipulation. I know that it does not take a process person 3 months to get the documents picked up from the court. What can I do, it really looks like that attorney has done something wrong and I want to call him on it without alerting him yet so if he has I can go after them because I may not be the only one that this has happened to. Beckie
    0 Votes

  • BA
    Sep, 2009
    Bill
    The handwritten date may or may not be legal depending on the intent of the person who made the change, when it was made, and why. Keep in mind that there are two separate statutes of limitation in this case. First, there is a statute of limitations on how long a debt can remain inactive before a court will not enforce a claim on it. In California, the statute of limitations is 4 years for debts in writing. Let us say a debt languishes for 5 years in California, the creditor sues the debtor and the debtor raises the statute of limitations defense in a timely manner. In this case, the court will dismiss the case with prejudice, which means the debtor cannot get a judgment in that court for that debt against that debtor. However, there is a separate statute of limitations for enforcing a judgment. In California, once a party receives a judgment, that judgment is good for 10 years, and can be renewed for another 10 years. I recommend you bring all of your paperwork to an attorney and let him or her look at the judgment with the altered date. If the document was changed to make the information fraudulent or mislead the court, then you may have a cause of action against the creditor.
    0 Votes

  • LN
    Sep, 2009
    Lee
    I had a car reposed in 1999, it is now 2009. the paper work is typed judgement 2008 then crossed off and hand written 1999. They levied my bank account for $5000+. what are statue of limitations in Calif. And is the hand written date legal?
    0 Votes

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