Fair debt collection practices act statute of limitations

What do you do if you get a call from a debt collector for a debt you don’t remember, still can’t pay, or one that you paid off long ago? Check the date on it. If the debt is over 4 years old, there is a good chance that the statute of limitations has expired, and a collector can’t continue to collect or attempt to sue after that point.

Despite the law, there are collection agencies that will try to continue collecting on a debt long after any expiration date has passed. They’ll file hoping that you won’t find out or show up in court. That’s where the Fair Debt Collection Practices Act (FDCPA) comes in.

The state of Florida allows a creditor or agency a four-year time period to sue for a debt. After the four-year period, the debt is considered “expired.” The collection actions after the four-year period is considered “abusive behavior” under the FDCPA.

For open-ended accounts (i.e., credit cards) and oral contracts, Florida’s statute of limitations is four years. The clock begins ticking on the date you made your last payment. However, if you make any payment after that, the four-year limit will start over. For instance, if you are close to the end of (or over) the four-year mark and make even a small, $5 payment in an attempt to settle the debt, the four-year period will start over, at day one, adding more years to the limitation period.

If the statute of limitations is over, and you still find yourself being sued, don’t ignore it. The court can issue a summary judgment, allowing the collector to issue wage garnishments and access your bank accounts to satisfy the expired debt. Collectors file these expired-debt suits hoping that you won’t show up in court to defend yourself.

The FDCPA prohibits collectors from attempting to collect a debt that they cannot legally have. If an agency has attempted to collect, you can pursue a claim under the FDCPA.

Stop Collection Abuse

Pursuing an expired debt is defined as abusive behavior under the Fair Debt Collections Practices Act (FDCPA). You have the right to file a legal claim of your own in addition to having the case against you dismissed. Be sure to have a qualified Florida FDCPA attorney on your side who can help you seek maximum compensation for your claim.

We have produced many successful outcomes for consumers just like you at The Law Offices of Jibrael S. Hindi. Millions of dollars have been recovered for FDCPA violations, and you can be the next to benefit from an experienced FDCPA attorney. Do not put up with the demands and harassment of debt collectors. Contact us today for a free case evaluation. Jibrael does not  collect a penny until you get paid!

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In May 2018, we wrote about an interesting Fair Debt Collections Practices Act (“FDCPA”) case in the Third Circuit. In that case, the en banc Third Circuit unanimously held that the FDCPA’s one-year statute of limitations begins to run on the date that the violation occurs, not on the date that the plaintiff discovers the violation. The plaintiff in that case first learned about the defendant’s alleged FDCPA violation approximately five years after it had occurred. The District Court dismissed the case on statute-of-limitations grounds, and the Third Circuit affirmed.

But the case didn’t end there. The plaintiff sought review in the United States Supreme Court. Because two other federal courts of appeal had faced the same question and reached the opposite conclusion as the Third Circuit, the Supreme Court agreed to hear the case. Earlier this month, the Court issued its opinion, agreeing with the Third Circuit.

The FDCPA’s statute-of-limitation language: claims may be brought “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). In the face of this clear language, the plaintiff argued that the “discovery rule” should apply. In rejecting this argument, the Court noted that if Congress wanted a discovery rule, it would have written the statute that way (as it did for several other statutes of limitations in the Federal Code). The power to rewrite the statute belongs to Congress, not to the Court.

The plaintiff also asserted a separate argument: the defendant’s fraud was the cause of the plaintiff’s delay in learning about the alleged violation. Under these circumstances, fairness dictates that the defendant shouldn’t be allowed to benefit from his or her fraudulent conduct. While the Court may have been more sympathetic to this argument, it held that the plaintiff failed to preserve this argument below and, as a result, waived it.

Thus, Rotkiske v. Klemm, — S. Ct. — (2019) left open the question of whether a plaintiff can avoid the one-year statute of limitations by establishing that the delay in bringing the claim was the caused by the defendant’s fraudulent conduct. The answer to that question will have to await a case where the plaintiff properly preserves the argument on appeal. On a related note, the case reminds attorneys to ensure that they preserve all of their clients’ arguments at all stages of a case.

FDCPA violations could expose debt collectors to considerable damages and penalties, as well as legal costs and fees. If you have any questions about the FDCPA in general, when it applies, what penalties might be involved, or how it may affect you or your business, we are here to assist you. Feel free to call Anthony M. Fassano at 856-616-2618 or email at or any member of Archer’s Commercial Collections & Consumer Litigation Practice in Haddonfield, N.J., at (856) 795-2121, in Princeton, N.J., at (609) 580-3700, in Hackensack, N.J., at (201) 342-6000, in Philadelphia, Pa., at (215) 963-3300, or in Wilmington, Del., at (302) 777-4350.

DISCLAIMER: This client advisory is for general information purposes only. It does not constitute legal or tax advice, and may not be used and relied upon as a substitute for legal or tax advice regarding a specific issue or problem. Advice should be obtained from a qualified attorney or tax practitioner licensed to practice in the jurisdiction where that advice is sought.

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