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Jun 2013Statute of Limitation in Virginia for Credit Cards
Posted by Robert Weed / in Blog, Weekly Posts / 18 comments
Virginia Statute of Limitations for Credit Card Debt
Some people, whose credit is really, really bad, don’t need to file bankruptcy, because their debts are barred by the Virginia statute of limitations.
If you can run from your debts long enough–and they never “serve” you with court papers–then they are SOL. SOL stands for Statute of Limitations.
Some people whose credit is bad enough don’t need to file bankruptcy, because their debts are barred by the statute of limitations
This statute helps people whose credit report is really, really bad. Bad enough that debt collectors look at it and say, there’s no point in bothering to chase this guy. Then, at some point, if they change their minds and try to sue you, they are too late.
So, how long do they have to leave you alone?
Five years if they can produce your signature on a written contract; otherwise three years. That’s in Code of Virginia 8.01-246(2) and (4).
So what’s a written contract? First, they have to come up with your signature. Now you’d think they have hundreds of copies of your signature–on your original card application, and then every time you sign a charge slip. So you’d be surprised this is not easy. I’ve seen credit unions be very good at always keeping your card applications. But credit card banks usually can’t.
If your debt has been sold to a debt collector, they hardly ever have your signature.
Even if they do have your signature on something, maybe that’s not quite enough. To be a “written” contract for this purpose, something in writing has to show the complete agreement–interest rate, payment terms, due date. maybe more. So your signature on one of those charge slips, or the original card application, is not enough. They have to somehow tie in all the fine print. It’s got to be “complete.”
If it’s not complete–can’t find your signature, or can’t tie your signature to ALL the terms of the contract–then the Virginia Attorney General says the “unwritten” contract three year rule applies.
(This doesn’t entirely make sense. A written contract where they can’t find your signature is not exactly “unwritten.” Legal Services of Northern Virginia says maybe the two year rule for “other” should apply. )
I’m pretty sure most judges follow the attorney general three years–not legal services on two.
The protection of the statute of limitations is not automatic. It’s an “affirmative defense.” If somebody sues you on a debt that’s barred by the SOL, they will still win–UNLESS you answer and claim the protection of the statute. You can’t just sit on your rights.
So if you ar relying on the statute of limitations to protect you, do NOT ignore any court papers that come your way.
PS While we’re here, I should add that a promissory note has a six year statute of limitations. A second mortgage would probably be covered under this six year rule.
PPS. Also here’s the link to the Code of Virginia on restarting the statute of limitations. 8.01-229G. A partial payment, without an express promise, is probably not enough to restart the statute in Virginia.
Can they keep calling and billing you on debts too old?
The Fourth Circuit says , yes, they can. At least as long as they don’t threaten to sue. Here’s the decision,Mavilla 4th Cir FDCPA. Even if a credit card debt is barred by the Virginia statute of limitations, phone calls and bills, without some kind of threat, are not illegal, harassing or misleading.
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Robert Weed has helped fifteen thousand people file bankruptcy in Northern Virginia. Robert Weed is a frequent panelist and speaker at the meetings of the National Association of Consumer Bankruptcy Attorneys. He is one of Northern Virginia’s most experienced personal bankruptcy lawyers. As an expert on changing consumer bankruptcy laws, Robert Weed has been interviewed on local and national TV and quoted in newspapers across the country.
Lindsey Messick
I was wondering….how can a debt collector serve you with garnishment papers on a debt that’s over the SOL and basically over 10 years old? The SOL on a written contract is 3-6 years? How is this possible? And what do I need to do to get out of this??? The company had already gotten the car back almost 20 years ago and they’re trying to whop me with interest that is double the price of what the vehicle is!!!! And they’ve already gotten their money back from reselling the vehicle!
Robert Weed
Lindsey:
Once they have a judgment against you, which they likely did years ago, they can chase you with garnishments for up to 20 years!
When there’s a car repossession you should always talk to a lawyer about bankruptcy. For most people it will clear the debt and get you back to good credit faster than anything else you can do.
Kiki
How does this work with disputing the debt on your credit report? Do the same limitations apply? How long are the collection agencies allowed to report it on your credit? Thank you.
Robert Weed
Kiki:
I know a lot about credit reporting law for a bankruptcy lawyer, but i am NOT a credit report law expert.
My guess is that the regular credit reporting rule of seven years after the last status still applies, even though the statute of limitations expires earlier. But there are lawyers who know more about that than I do.
rob camarda
Very helpful.
I have a law firm settling my CC debt, 2 of which have not sued nor offered a settlement.
I am going over my Experian and found last activity for both is early 2015
I think I am already past the 3 year SOL, what would next step be if they offer a settlement or sue me? (I am a resident of Leesburg, VA)
TIA
Robert Weed
Rob:
Sorry I am slow getting back to you. I’m glad to here that a debt settlement effort is working for you; I mostly hear about the ones that fail. But I can’t shed any light on your question, because I rarely do that work.
Now maybe there are some reasons why you did NOT want to file BK in 2015–or could not get approved. But if you had been eligible and done it, your credit score would likley be way into the 700’s now. I’m guessing you are below 600 today, having laid out quite a bit of money in those settlements.
Let me know if I’m wrong.
AV
Hi, if my garnishment was dismissed/no funds back in 2014, can they still come after me in the future or would SOL for credit cards bar them from it.
Robert Weed
AV Once they have a judgment they can keep trying to garnish you for 20 years!
joe
My son has 2 warrant in debt cases, both from 2012. The disposition says not found/ unserved
Can this be reopened on him if he is found and if so, can he claim SOL
Robert Weed
Joe:
Based on what you have told me, the SOL is expired and he is safe. There may be some things you–and I–don’t know, of course.
Jennifer Allen
I had a credit union credit card back in 2015-2016. Last payment was April 2016. Credit union tried to get a warrant in debt in October 2016 and I filed for BK right before the court date so it was dismissed. The BK also ended up being dismissed, but a few days ago, they came looking for me with another WID, court date of 8/2019. My question is, is this time barred at this point? Should I go to court and ask for the documents with my signature, or try to settle? I do know I can’t let them get a judgement or else it’ll get extended. Thank you!
Robert Weed
Jennifer
The SOL for original creditors is 5 years–and the time you were in the BK does not count against that time. So based on what you told me, it looks like they are NOT too late.
As to what you should do, I’d need to know a lot more to give you advice, sorry.
Jennifer Allen
Do you consult on cases like this? Like, can I hire you for advice on this one case only?
Robert Weed
Jenn
When I get outside of my specialty, I make mistakes.
Don Lovak jr
Does a creditor extend the 5 year statute of limitation (on a credit card) to 10 years when they obtain a judgement in a warrant in debt.
Robert Weed
Don:
In Virginia, they have a NEW 10 years when they get a judgment on a warrant in debt, and can stretch it to 20 years. Once they have a judgment you won’t live long enough to outrun them,
Maggie Greer
The statute of Limitations is up 19 days after my trial date. Do you have any suggestions? Should I still bring that up to the judge?
Robert Weed
Then they beat the deadline. Based on what you say, the SOL is no help.