IMPORTANT INFORMATION ABOUT ILLINOIS COLLECTION CASES

IMPORTANT INFORMATION ABOUT ILLINOIS COLLECTION CASES

If you are sued by a debt buyer: If you never dealt with the entity that is suing you, it is probably a debt buyer rather than the original creditor. Over $100 billion in debts are sold to debt buyers each year, usually for 10 cents on the dollar or less. Often debts are sold multiple times.

Debt buyers that often sue in Illinois include Portfolio Recovery Associates, Midland Funding, Cavalry SPV, LVNV Funding, CACH, Jefferson Capital, JH Portfolio, Credit Corp Solutions, Absolute Resolutions, Bureaus, Crown Asset, Velocity Investments, Atlantic Credit, Unifund, Second Round, HBLC, JRS-I, and Resurgence Capital.

If you are sued by a debt buyer, the question is not whether you might owe money to someone, but whether you owe the amount claimed to the debt buyer suing you. Never assume that you owe them money just because they are demanding money from you. We have had cases where the same debt was supposedly sold to two different buyers, or where a debt was settled and the “balance” then sold. You are entitled to copies of assignments specifically referring to your debt and showing a “chain of title” beginning with the original creditor and ending with the debt buyer that is suing you. If you have not seen such assignments, or they are not attached to the complaint, the debt buyer that is suing you has not proven that you owe it anything.

Do not default: It is essential that you make all court appearances and comply with all deadlines. If you do not, the creditor or debt buyer wins, even if it cannot prove its case. If you cannot afford the appearance fee, there are provisions for waiver or deferral.

Do not assume debt buyers can prove anything: Most often, debt buyers cannot even prove that they own the debt. It is worth your while to show up and demand your day in court. If you get a trial date, answer “ready” and show up, on time, and demand that they prove that you owe them (not the original creditor) money, for what, and how much. It is also worth your while to pay an attorney to do this for you. We defend collection cases for modest fees.

Statute of limitations: Many creditors and debt buyers sue on debts that are barred by the statute of limitations. We believe that the following are the statutes of limitations applicable to common types of debts in Illinois:

Ordinary bank credit cards: 5 years

Retail installment contracts, auto leases, deficiencies after repossession, store charge cards, other contracts for sale or lease of goods, including natural gas, oil: 4 years

Contract wholly in writing, signed by both parties, and not subject to being changed by notice without signature: 10 years. The writing must be attached to the complaint or its absence explained to qualify for this long statute. Further, its absence cannot be the fault of the plaintiff or its predecessor. Note that many types of contracts which have writings associated with them do not qualify for the 10 year statute – credit cards, home equity lines of credit (HELOCs).

Penalties on bad checks: 2 years

Dishonored checks: 3 years

Any other contract: 5 years

The statutes run from default. They may be extended by a later payment or possibly agreement to pay.

If you defaulted while living in another state, Illinois has a “borrowing statute” which requires application of that state’s statute of limitation if it is shorter than the Illinois state.

Affidavits and evidence: Debt buyers often submit bogus and insufficient affidavits. Affidavits must be based on personal knowledge (what a person saw, heard or did) or attach and explain business records. An affidavit claiming that unspecified records show something is not legal. At trial, the debt buyer must have a witness, not an affidavit.

Credit cards: “Authorized users” of credit cards who do not agree to personal liability are not liable. It is the burden of the party suing you to show what capacity a person has if there is more than one name on the account.

Fair Debt Collection Practices Act: This is a federal law regulating debt buyers, collection agencies, and collection attorneys. It is often violated. For example, suing on time barred debts violates the FDCPA. Suing in the wrong county violates the FDCPA. Claims must be brought within one year of the violation.

Exemptions: The law exempts certain assets and income from being used to pay a judgment. For example, Social Security and pension benefits are exempt. Some debt collectors try to get people whose sole income is exempt to agree to pay. Don’t.

Settlements: If you do enter into a settlement agreement, make sure it is clear (a) whether a judgment will be entered on the agreement (harms your credit longer), (b) whether default in payments will result in a judgment and in what amount, and (c) whether interest will be added to the amount you agree to pay.

Default judgments: If a default judgment has been entered against you, it can be readily vacated for precisely 30 calendar days (not 31) after entry. The motion must be filed within that time, not heard. It can be vacated for 2 years after entry on a showing of a defense plus a good excuse for not showing up. If the defendant was not served it can be vacated at any time. There are corroboration requirements applicable to challenging a “return of service” to the extent it is based on the personal knowledge of the process server.

The above is general information, not legal advice. We do not charge for consultations about a case or reviewing collection documents, so please call or email with any questions.

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