Challenging an Old Debt

Question: I have a credit card account that has not been paid on in 5 years. They wrote it off on my credit report and a debt collection agency is now trying to collect on it. According to Bankrate.com there is a 4 year statue of limitation in California for collecting this. Is this correct?

Answer: The information you received from Bankrate.com is essentially correct. The credit card account is based on a written credit agreement and the statute of limitation for breach of a written contract is 4 years. This 4 year period begins to run from the date that you first went into default, but this period can be extend if you make a voluntary payment.

The collection agency may not be knowingly be attempting to collect on an uncollectible debt. You should start by sending the collection agency a stern warning letter disputing the debt and instructing them to stop contacting you. Click here for a sample dispute letter. If the collection continues to harass you about this debt, contact us for further assistance.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

U.S. court tosses lawsuit over "In God We Trust"

SAN FRANCISCO (Reuters) - A U.S. district court judge on Monday dismissed a lawsuit brought by a California atheist against the U.S. government for its use of the phrase "In God We Trust" on its coins and currency.

Michael Newdow, the Sacramento, California lawyer and doctor who had previously launched a court challenge on behalf of his daughter over the phrase "under God" in the Pledge of Allegiance said in schools, had argued that "In God We Trust" on monetary instruments violates his rights.

Newdow claimed that by using coins and currency bearing the phrase, he is forced to carry religious dogma, proselytize and evangelize for monotheism.

Judge Frank Damrell of the U.S. District Court for the Eastern District of California held in his opinion that "In God We Trust" is secular in nature and use, and its appearance on coins and currency does not show government coercion on behalf of monotheism.

Newdow told Reuters he would appeal to the San Francisco-based U.S. 9th Circuit Court of Appeals, which ruled in his favor in his "under God" lawsuit, a decision later overruled by the

U.S. Supreme Court, which found Newdow could sue not on behalf of his daughter because he lacked custody.

"The case is really straightforward. The history is overwhelmingly on my side," Newdow said.

Using a Judgment Debtor Exam in California

Question: I have an unpaid judgment and I've heard about a procedure called a judgment debtor's exam. Is that an effective way to collect a judgment?

Answer: A judgment debtor's examination is one of many methods to help a judgment creditor in California to collect a judgment. If the judgment creditor cannot locate the assets of a business or an individual debtor, then the law provides for a procedure known as a judgment debtor examination. In this procedure, the court issues an order that requires the debtor to come back to court and answer questions under oath about the nature and location of the debtor's assets. With the information obtained, the judgment creditor can then obtain a writ of execution and direct the sheriff to seize the assets.

The judgment creditor must first apply to the court for a hearing date using the proper form. After obtaining a hearing date, the creditor must arrange for the debtor to be personally served with the Order to Appear by a sheriff or registered process server. Click here to see a list of sample questions to ask the judgment debtor. Rather than undergo the examination, debtors will often settle the judgment to avoid the hassle of coming to court. In most cases, you will obtain information about the debtor's ability to pay the judgment.

Sometimes the debtor will refuse to show up at the hearing. If this happens, ask the judge to issue a bench warrant or a warrant of attachment. For a fee, the local sheriff will contact the debtor and serve the warrant. In most cases, the court will schedule a second hearing and the sheriff will arrest the debtor for a second failure to appear.

The key to collecting any judgment is getting good information about the debtor's assets and conducting a debtor's examination can be very useful in obtaining this data. With persistence an tenacity, a good collection attorney can collect on most judgments using the debtor exanination procedure and other methods legally available to collect judgments.

The information provided in this article is general information only and is not intended as legal advice. DO NOT use this information as a substitute for obtaining qualified legal advice or other professional help.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.