If a debt collector called me and said if I don’t pay in full or make payments I will be served a summons, should I make payments or call his bluff?

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If a debt collector called me and said if I don’t pay in full or make payments I will be served a summons, should I make payments or call his bluff?

i have just been contacted by a debt collector for a unpaid credit card of $2,288 from 9 years ago. The collector said that if I don’t pay in full or make payments hes going to have a server give me a summons/complaint. Should I pay the debt or call his bluff and see if I get served? If I wait and do get served, do I lose the option of making payments? I can’t really afford big payments right now. Could I pay less buy explaining my situation to the judge or do they usually rule in favor of the debt collector?

Asked on June 13, 2012 under Bankruptcy Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Assuming the debt is valid (that is, you  legitimately owe the  money), there is nothing a judge could do for you--judges do not have the right to make creditors except less than payment in full. Similarly, once you are in default on a debt, you don't have any rights to pay over time; it is completely voluntary on the part of the creditor whether to allow you to pay over time, or to pay a portion of the debt in satisfaction of the full debt, etc.

The debt collector is not "bluffing" in the sense that he has the right to sue you for the full amount if you defaulted. Certainly, it's possible the debt collector will decide it's not worthwhile--but that's unlikely; for over $2,000, most creditors or debt collectors would take action.

HOWEVER, you have one huge factor in your favor--the age of the debt. If the debt is as old as  you describe, it would seem to be too old to be sued over: in Florida, the statute of limitations for contracts (which is the appropriate SOL for credit card debt) is only five years. If you fact defaulted on this debt almost 10 years ago, the debt collector would be bluffing--it can't legally enforce a debt that old.

So if you are confident of the dates--that you stopped paying the card and hence defaulted 9 years ago--then you shoujld be able to call his bluff; if the debt is that old, then he cannot sue you on it.


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