Timothy G. Cook, Attorney At Law

Marietta Bankruptcy, Family Law and Contract Law Attorney

Credit Card Statement Sent Out For Old, Charged Off Debt

Several consumer advocates have noticed a new tactic recently from some of the credit card companies. This involves old debts that were charged off by the credit card company. If you have a debt to a credit card company that you have defaulted on and failed to make payment be aware of the following scenario. One credit card company Capital One has started sending out what looks like one of their typical monthly statements indicating that you owe a balance on the credit card account and that payment is overdue on the account. Most people look at this and think they just forgot to pay their credit card bill and send them a check.

The reality is these are old debts that were written off by the credit card company long ago. Many of them are accounts that were charged off more than six years ago. Many of them are beyond the statute of limitations for the debt to even be collected in the state of your residency. In Georgia the statute of limitations is six years for the creditor to institute a lawsuit on the debt. The start of the statute of limitations is measured from the last date of activity on the account for either purchases or payments. So if you haven’t made the payment in six years on this old account, the creditor cannot get a judgment against you in State Court as long as you defend against the action.

You can see the tactic that is being used with these fake monthly statements. If you receive one and send the credit card company a payment, you have restarted the statute of limitations from the date the credit card company posted the payment to your account. Also, it could be used as evidence in court. It could establish that you know that you recognize that you owe the debt and you have reaffirmed it by trying to make payment on this old account.

So be careful and check the account information out on the monthly statement you receive before you pay on a credit card statement. You may not owe to the credit card company. Look for more credit card companies to start using this tactic if it’s successful.

Mold in my apartment

Question: I didn’t pay rent for the month of June because there is mold in my home. My daughter is sick and she was tested positive for mold allergies. My landlord told me that it is my responsibility to get rid of the mold or move out. Now he is trying to evict me.

Answer: Mold is a tough issue for both landlords and tenants. In Georgia a residental landlord has an absolute duty to make repairs to the leased premises. They cannot hold you responsible for making repairs to the home. Your burden is to prove to the Court that the mold exists and that you notified the landlord to make repairs and they didn’t do so. Because so many tenants who can’t pay try to use the defense of mold problems, the Courts don’t know if it is true or not. To prove it, you must have a inspection performed on the property at your expense by an expert. The expert needs to furnish you with a report and a sworn affidavit that you can present in Court to show the Judge the conditions exist. A medical report of your daughter is not going to prove it because a good landlord attorney could show she could have gotten this anywhere. Next, always, always notify the landlord of repairs that need to be made in writing. If you wrote the landlord, you have a document you can present to the Court showing that on this date and this date I asked them to make repairs and they would not do it. From the landlord side if your tenant is claiming mold problems, you need to investigate and take pictures of the problems. If it is there, you must make repairs to the leased premises in a reasonable time. There are several mold remdiation firms that specialize in this. If you do ignore it, be aware that if the tenant did the above items, they can go beyond just lease damages, in proving possible personal injury.

Finally, tenants always make the mistake that if the landlord doesn’t fix something, I will just not pay the rent this month. You cannot do that. The duty to pay rent under the lease and the landlord’s duty to repair are seperate contractual duties. That is why you find yourself being evicted. In Georgia, if the landlord does not make the repairs, you can make the repairs yourself and present your paid receipts for repairs to the landlord in lieu of part or all of the monthly rent if the repairs are extensive. If the rent is $1,000 and you made $500 in repairs you can submit $500 and the repair receipt. Just make sure that if you do this you have asked the landlord at least twice in writing and the landlord didn’t take action before you repair and deduct in case the landlord tries to evict you based on failure to pay rent.