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Frederick William Schwinn
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Frederick Schwinn’s Answers

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  • Question regarding Statute of Limitations in California and Delaware for collection lawsuit.

    If I am located in California and the original creditor (bank) is a Delaware corporation and the debt was sold to collection company, does the statute of limitations apply to Delaware which is three years or California which is 4 years on the owe...

    Frederick’s Answer

    It will depend on the Cardholder Agreement. Because the collection company/debt buyer "stands in the shoes" of the original creditor, the choice of law provision in the Cardholder Agreement will remain unchanged by the transfer/sale/assignment. I have successfully litigated many of these Delaware choice of law cases. See, Resurgence Financial, LLC v. Chambers, 173 Cal.App.4th Supp. 1 (2009).

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  • California - credit card debt to surviving husband

    My mom had a credit card in her name only. My dad did not sign the application, and was not an authorized user. She let her son use the card, and he paid his own bills (and other stuff) on that card, and the balance at the time of mother's passi...

    Frederick’s Answer

    As an initial matter, I am sorry that the first three "answers" that you received contain no useful information. This is a direct result of the way in which Avvo incentives attorneys to answer questions with "contributor points." Many attorneys rush give lame answers just to get points for their profile. The first three responses are awarded points, regardless of the substance of the response, and any subsequent response is awarded no contributor points. Thus, the "Contributor level" shown on Avvo profiles is no indication of the quality of the answers provided, just the speed at which something (anything) is posted in response. Now for your question.

    The short answer is yes, your father is responsible for your mother's credit card debt, but only for one year from the date of your mother's death. This assumes that your parents did not have a prenuptial or post-nuptial agreement regarding California's community property laws. Two California statutes get you there.

    First, California Family Code § 910(a) provides that, "Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt." Thus, the "marital community" (i.e. any money or property acquired by your parents during their marriage) is liable for your mother's debts, even after her death.

    Secondly, California Code of Civil Procedure § 366.2(a) provides that, "If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply." Thus, the statute of limitations for filing a lawsuit against your father for your mother's credit card debts is one year from the date of her death, without regard to whether or not the creditors have knowledge of her death.

    Based on these statutes, I would recommend that your father does nothing and simply waits to see if one or more of your mother's creditors step up and file a lawsuit against him to collect. If that happens, your father should consult with an experienced collection defense attorney immediately. In the interim, your father should not pay any of your mother's debts, nor should he speak with any of her creditors on the telephone. There is simply no benefit for your father in paying or trying to "explain the situation" to your mother's creditors. If your father makes it a year without being sued, he could then start telling your mother's creditors that they are SOL (Sh*t Out of Luck) due to the SOL (Statute Of Limitations). See, Collection Bureau of San Jose v. Rumsey, 24 Cal. 4th 301 (Cal. 2000) ("because plaintiff collection agency had failed to file suit within one year of the death of the debtor spouse, its suit against the surviving spouse for recovery of the expenses of the debtor spouse's last illness was barred by the limitations period of Code of Civil Procedure former section 353 [now section 366.2].").

    Finally, opinions are like belly buttons, everyone has one, and attorneys on Avvo are no different. Therefore, you should not rely solely on the opinions of attorneys on Avvo or any other website. I have provided you with what I believe are the relevant California statutes and a citation to the leading California Supreme Court case on this subject. However, you should do your own research and ask other attorneys who have experience defending debt collection lawsuit until you feel comfortable with the responses you have received.

    I am sorry to hear of your family's loss and I hope that I have helped you in some small way.

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  • A collection agency levied my bank account and I was never notified of the court date...

    My bank account was levied by a collection agency. The total judgement was for $3017.30. I had a little over $700.00 in my account at the time and they took it all! First, I was not notified that there was a court date. When I called and asked the...

    Frederick’s Answer

    You should get a complete copy of the court file and take it to an experienced collection defense attorney. The judgment can be set aside for lack of service and your garnished money will be refunded. However, time is short, so you need to get on this ASAP.

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  • Can my attorney sign a fee waiver for me?

    I'm hundreds of miles away from my credit card debt attorney and he needs to file a fee waiver with my court docs. How can I sign this doc or can he sign for me?

    Frederick’s Answer

    No. The Application for Court Fee Waiver must be signed, under penalty of perjury, by the person requesting the fee waiver.

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  • Is medical debt still owed, or has statue of limitations passed?

    Medical bills are from 2004, the debt collector states I owe about $6k however when I pull my credit it doesn't reflect that. To get them off my back I've been paying $50 a month. Should I continue, some ppl say they aren't able to collect on th...

    Frederick’s Answer

    Every payment that you make restarts the statute of limitations. NEVER pay a debt collector.

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  • Interpretation on California Code of Civil Procedure Section 351

    The statue of limitations in California for my credit card debt expires after 4 years and section 351 is one that can extend it. So if my debt expired in November 2011 but i moved out of state In October 2011 does this section translate that my cr...

    Frederick’s Answer

    The debt is time barred. Section 351 is based on outdated notions of personal jurisdiction and service of process, and it is unconstitutional as applied to cases involving interstate commerce.

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  • My ex somehow got a car from a dealership using my name, I did not sign any thing or was even present. now I'm in debt.

    divorced in 07. judge ordered her responcible for the debt of that car. I re married and started a fam. but still being called by Nelson & Kennard. trying to build up my credit but cant because of this. fraud and forgery is jail time but I have tw...

    Frederick’s Answer

    This sounds like garden variety identity theft to me. You should consult an experienced collection defense attorney immediately to preserve your rights.

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  • When does the statute of limitations begin to run on the the enforcement of a debt?

    In California when does the statute of limitations begin to run on the the enforcement of a debt, from the date of the last payment made, the date of the first late payment when all other payments are late, the date the for the final payment, or, ...

    Frederick’s Answer

    It really depends on the type of debt. Garden variety credit card accounts are usually 4 years from the date of the last payment or charge (excluding interest, late fees, etc.), but may be 3 years depending on the choice of law provision in the Cardholder Agreement. On the other hand, promissory notes, like home mortgages, are generally subject to a 6 year statute of limitations under the UCC, and each payment has a separate SOL. Because you have noted a "balloon date" in your question, you may be asking about a promissory note, thus, you really should consult an experienced debt defense attorney as there may be several factors that have not been considered.

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  • Is statue of limitation on HOA default in california 4 years or 5 years?

    Is statue of limitation in california 4 years or 5 years?

    Frederick’s Answer

    I believe that the statute of limitations for unpaid HOA dues would be 4 years from the date of the last missed payment.

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  • Should I expect multiple rounds of counteroffer letters when negotiating a credit card settlement.

    I have requested to Portfolio Recovery Associates, the debt collector representing Household Bank, to correspond only in writing. Debt is $2200. I made an initial offer of $500 to settle and they came back to settle at a much higher amount that...

    Frederick’s Answer

    PRA is a debt scavenger that purchased your account for a few pennies on the dollar. PRA is not collecting for Household Bank. Any money that PRA collects, PRA keeps. Pay it nothing.

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