Statue of Limitations Question

Hi, and welcome to the board!

There's no language in the FDCPA that limits actions to a year after the breach. Just curious, where did you read this? I only ask because there is a TON of bad information floating around online, especially from some of the, uh, more militant "sue everybody all the time" credit forums out there.

If your state's SOL is four years, and your last payment was Feb 15 2008, then they can sue you right up to and including Feb 15, 2012. After that date they can still sue you, but you would appear in court and point out that the statute of limitations has expired. I've done some research and I've found that the courts in my state view the SOL as carved in stone; one day past SOL and it's game over, period, no exceptions, no way, no how, too bad so sad, end of discussion. Your state may or may not be the same.

Any CA can file a lawsuit in any state. They just have to use an attorney that's barred (licensed) in your particular state. So if XYZ Collections out of New York City is threatening to sue you, they can hire Attorney Joe Schmoe out of Philadelphia to represent them.

Have you heard from a debt collector about this alleged debt yet? How much is it for?

 

The time to file an action against a debt collector is within one year of the violation per:

The time a debt collector can file an action against a debtor is covered by some state-specific statute and NOT the FDCPA.

 

Whoops, you are correct. I thought she was referring to a one-year limit on when the CA could bring suit against an alleged debtor. OP, this means that if the CA violates the FDCPA, you have one year to bring a suit against the CA for that violation.

 

The sue everybody all the time credit forums have it right. Don't discourage people from isiting them. Some may have some bad information. Every board has some bad information and this one is no exception.

The reason that is true is because everybody including government and the courts make mistakes from time to time. Some are much worse than others. For instance, the Michigan debt collection attorney blog (which is one of the many blogs whose RSS feed I carry in my sig line) puts down creditinfocenter real bad because of bad information.

The point is that you should never trust anything anyone says on any web site,message board, blog or egroup. Don't believe anything anybody tells you no matter how much you might trust them. I don't want you to believe anything I say either. I want you to take what I say and then go check it out for yourself. The only final authority is what the last court of highest authority in the same jurisdiction has ruled on the matter. Their ruling stands until another court of higher jurisdiction in the same jurisdiction rules differently. That process can continue for years until the United States Supreme Court rules on the matter (if it ever does) and that ruling stands until it rules differently or until Congress passes a new law trumping the ruling of the United States Supreme Court. Then the process can start all over again. The battle between the two can go on for decades. Look at Rowe vs. Wade. I doubt that one will ever end. So if you can't even count on Congress and the Supremes to even agree on what is the right answer all you can do is believe what the latest ruling of the highest court of competent jurisdiction has ruled.

Certainly not on whatever I or anybody else might have to say. Use what you find on such resources as a starting point for your own investigations. The starting point is what the law itself has to say and even there you can't trust yourself to understand what the law has to say until you have read the definitions section first. Every law must have a definitions section and you can't know who the law applies to or what it's wording means until you have read the definitions section. I know of many people who are considered experts and brilliant researchers in their area of expertise but even they make mistakes from time to time. We are all human and that simply means that sooner or later we will make a mistake for as the Bible tells us, to err is human.

for instance, the following quote is in error. That makes two errors in 1 single post.

No, that is off by at least 30 days. Statute of limitations does not start until the creditor knows or should have known that the account was in default. That is the language most statutes use. Your state may have a different method of determining when the statute of limitations begins and how long it continues to run as well as under what conditions. Then FDCPA also has something to say on the matter. Then there are different statutes of limitations for different laws and even the Statute of Limitations in your state may or may not apply in some types of situations. Contract law may apply instead of state or federal statutes. So in the final analysis, you can argue what you want and use whatever court case(s) you want to bolster your arguments but in the final analysis the statute of limitations might be whatever a judge rules that it is in each individual case. Then that judge's ruling applies unless it is overturned by the next highest court of competent jurisdiction. It just might depend on how much money you have and how much fight you have in you to determine the final outcome. The final result might well only be had when someone gives up or dies and therefore cannot fight on.

That's also a bit misleading because simply pointing out that the SOL has expired may or may not be good enough. The court may require you to prove almost beyond a shadow of a doubt that what you say is in fact true and even then may rule against you using some other cute legal trick you never thought of or knew existed. And now you also should know why you need expert legal help and why they demand so much money to help you if they even have the expertise to do so and most don't. Nothing is free in the end. Even free advice can prove to be very costly if it is wrong.

That may very well be true until somebody takes it to the circuit courts of appeals at the federal level. Your state may or may not be the same.

Quite so. And that is when the fight should start all over again as far as I am concerned. The lawyer is a debt collector too by definition. That calls for a validation letter to be sent to the lawyer upon his initial contact with the debtor. If the attorney does not provide that validation and illegally continues his attempts to collect you have a cause of action against him in either federal or state courts. As far as I am concerned Federal should be the venue of first choice unless the debtor is being sued in small claims court in which case the debtor might want to consider using a district court case in order to escalate the case out of small claims. I believe that even then every effort should be made to find additional causes of action which can be used to escalate the fight to federal court. It is always better to be a plaintiff in federal court than it is to be a defendant in any court. If you doubt me on that point then simply ask any of the hundreds of people who have filed federal cases against debt collectors and their attorneys and won in federal court even though they lost in local courts.

How do you get more violations? Easy. Did the lawyer file any affidavits that contained false and misleading information? Did you prepare and file your sworn statement of graduated denial, your notice of appearance Pro Se, your comprehensive discovery plan and get that signed off by the judge before sending it to the plaintiff's attorney, your certificate of mailing and your demand for admissions and send all of that to the plaintiff's attorney by certified mail? If so, how did the plaintiff's attorney respond? Did he provide honest straightforward responses or did he use obfuscation and pettifoggery trying to evade those questions he didn't want to admit to?

When he replied or sent you his discovery demands did he include a miranda notice? If not then you have yet another cause of action against him in federal court. When you get the lawyer there is he defending himself? If so has he been accepted to practice law before the federal bar? If not then nail him again. Anything the lawyer sends you that is not a part of a legal document filed in a court of law must carry the miranda declaration and any telephonic or email or private conversation must have a miranda declaration. Even some court filed documents must also carry the notices. Federal rules of civil procedure cover that. You must know your rules of procedure, local, state and federal if you hope to win. If you don't know how to prepare all that paperwork then for Heavens sakes hire someone who does. A lawyer? Maybe so but before you do go to your local court house and check out his record. You can examine every case that lawyer has ever been involved in and you can see whether he wins or loses and in what kinds of cases.

Once you know that you will know whether you should hire him/her or not. I was once referred to an attorney by a man whom I consider to be a good friend. His daughter is an attorney and he spoke of her in glowing terms, telling how she had won hundreds of cases. I checked her out at the courthouse and found out that she had only been involved in 25 cases and had lost all but one and that one was still in progress at the time. Needless to say, I looked elsewhere.
The case was about an automobile accident and I hired another lawyer who did an excellent job of defending. So good in fact that the case never went to trial because the lawyer I hired found a witness who testified at a pretrial conference between the insurance companies and the attorneys that she saw the plaintiff using his cell phone at the time of the collision. That made it a case where both parties were equally at fault and neither side could have won in court so it never went to trial.

So don't put somebody down because they charge a lot of money. A human being is only worth what his time is worth. It is the only commodity he has to sell. He must charge enough to pay his bills and more and if he don't he won't be around to help the next person who might be you when you need help. It don't make any difference where or how you find him either. Don't put him down because he advertises. That is the only way he has to make others aware of his services and his abilities.

 

The first point of contact is when the whole validation timeframe begins. So from the very first phone call or letter from the CA, you have 30 days in which you can halt further collection efforts by sending them a DV letter. There is specific language that should be included on their first contact, telling you about your 30-day period and so on. Even if it isn't there, send the DV by certified mail.

You can DV outside of the 30-day window, but they're not obligated to do anything about it.

How much is the debt for? I only ask because you'll want to find out whether you may face suit in circuit / county court, or at your local district justice. There's usually a monetary point where cases under $xxxx may/must be brought in small claims / DJ, and cases over that amount may/must be brought at a higher court. In doing so, you're getting a little ahead of your game, but that's never a bad thing.

 

You're correct on the 30-day mark, but incorrect on the rest. The SOL in my state begins to tick on the first date on which payment was missed. So given a final payment on Feb 15 2008, and the next bill due by Mar 15 2008, the SOL would expire Mar 16 2012 here. That's why I followed that paragraph with "in my state / YMMV". Each state is different.

When I thought I would be staring down the barrel of a giant lawsuit, I read every relevant state statute, opinion, and case I could get my hands on at our local courthouse. I sat in on trials whenever I had the time. Learned a lot about the tone and attitude of a courtroom, how proceedings really work, and most importantly, how the courts in my state have viewed the SOL defense in relation to credit card debt. And in the dozen or so cases I filed away in my "lawsuit emergency" folder, the state has upheld that the SOL is based on the first day on which the bill is due.

I've never seen a CA or OC argue in my state that the SOL began to run when they became "aware" of the debt. If that were true, the OC would simply have to say "Whoops - we charged this card off in 1999, but we didn't realize it was overdue until 2009. Hence, the SOL begins right now. Bona fide error on our part!". I'm not saying it can't happen -- anyone can make any claim they want in a suit. On that same token, I can go to court and argue that my debts are invalid because the Magical Debt Fairy appeared in my dreams last night and set me free. I think either one has about the same chance of working.

I appreciate your very long post, but if the OP is being sued over a $3000 debt, it's very unlikely that most of that is going to matter. And if it does -- if she goes down the appeals road, runs into biased judges, and has a bad day in court -- that can be dealt with when the time comes.

Your advice is sound -- distrust everything you read online, including this site. But let's not get ahead of ourselves and send her chasing after the rules of civil procedure for her state's supreme court, when she may very well wind up before a district justice where motions and such don't matter anyway.

 

All of which is correct as well. I never recommend that anyone go to appeals or supreme courts. I also never recommend trying to get a judgment vacated. That is also an exercise in futility in most instances. As I have stated many times before, it is far better to be a plaintiff in federal court than it is to be a defendant in any court. Therefore, ideally speaking, I maintain that one should start with a simple validation letter at first contact no matter how that might occur and continue looking for and keeping careful records of any and all violations until such time as one is contacted by an attorney if not before. That is the time to start a federal lawsuit against the debt collector and immediately start the process all over again with the attorney ending in another federal lawsuit against both the attorney and the debt collector who hired the attorney once the local proceedings are over and done with.

I believe that one should go into the local courts expecting to lose and get a judgment no matter what s/he might do to prevent it from resulting in a judgment against the defendant. I believe that in the process of defending oneself the defendant should be looking forward to that eventual second federal case.

Just yesterday I received a nice letter from a debt collector claiming that I owe a $95 debt to AT&T. The letter meets all FDCPA requirements. I will wait until 25 days from the date on their letter rather than 25 days after I received it and mail them my demand for validation. I'll track the letter by email so I know exactly when they get it and 15 days later they will receive my estoppel letter which I will send with the sole purpose of letting them know that they are now on a strict time line which I will maintain all the way through federal court. Of course, I expect that they will ignore the estoppel so 15 days after they get the estoppel they will receive yet another letter which they will also probably ignore. Then I will just sit back and see what happens. Since it is highly unlikely that they will ever sue me for the $95 no matter how much they add to it I'll be watching my credit reports for violations there. Sooner or later they will make one or more mistakes and since I don't expect to get sued for such a small amount I'll let it ride until the statute of limitations is about to run out and file in federal court for any and all violations.

In the event they make any FDCPA violations the suit will be filed at the end of 10 month after the date of the violation. In the event they violate FCRA I will also file on those at the end of 22 months after the violations have first occurred.

I really like FCRA better than FDCPA because of the 2 year statute plus I can get much more money out of them under FCRA than I can under FDCPA. Each month a violation occurs is another #1,000 times the number of bureaus so that is potentially $3,000 per month times the number of months the violation continues to exist plus any damages generated from the violations plus my court costs plus attorney fees.

If they do file a lawsuit for the $95 plus whatever they can dream up to tack on then I will file immediately against the collection agency and start in on the lawyer. I'll respond to the summons and complaint and send demand for validation to the lawyer along with my notice of appearance pro se, and certificate of mailing. Since the suit is so small it will be filed in small claims court so I will also file a counter suit against the plaintiff in order to move the case to district where I can use discovery so I'll have to also prepare my counter suit, notice of hearing and file that in district court at the same time. So I'll include demand for admissions as well. That will make a nice fat brown envelope to send to the lawyer. By that time the lawyer should also know about the federal lawsuit against his client. That should make his day for him.

I'm also helping a friend of mine with his case. He already has a judgment against him. He didn't tell me about the problem until long after the judgment had been entered against him. He thought he had it all under control and they could do nothing to him because he is disabled but not on any pension. He had his home put into a trust a few years back so he was safe he thought until they forced his wife and the trustee's caretaker into court for an assets hearing. The caretaker couldn't tell them anything because he really didn't know anything to tell them but the wife had to give up her last year of bank statements. My friend came to me at that point. That's when I found out that the so called trust was nothing but a patriot's scam which they will pierce very easily. He really don't have too much to worry about over that because the IRS has a huge lien on the property so they would have to pay that off if they wanted his house. His wife was not a defendant in the case but they called her in under a subpoena. They grilled her at the courthouse yesterday and in the process made a couple of mistakes so now she can and will file a federal case against the lawyer. That ought to make the lawyer real happy. (not).

So why is it that I won't pay the $95? I would have been quite happy to pay them if they had told me that I owed them money but they didn't do that. They didn't even send me a final bill after I had been a good customer for so many years I can't even remember. I canceled my service and went to VOIP for all my phones. I'm using two Vonage lines and two magic jack lines. Saves me a great deal of money. But if they can't even show me the courtesy of sending me a final bill then they can shove it where the sun don't shine as far as I am concerned.

 

It's statute of limitations not statue. Reminds me of a Seinfeld episode in which Kramer insisted that it was statue like a sculpture.

 

Not appealing if you lose means that you are essentially done. If your goal is to go to the federal courts, you are going to have to find something other than the judgment to argument about, see Rooker-Feldman.

A default judgment that you knew about is one thing, but if you really didn't know about it, getting it vacated should be possible.

Except that the plaintiff can pay all the attorney's fees just like the defendant. And a counterclaim makes a defendant the plaintiff and the plaintiff the defendant, in the counterclaim.

I suppose you hope that they actually violated some federal law.

If you lose the original case, they hold all the cards. You come in with the federal case hoping to gain something, from your new deck, but they still have all the cards from the state judgment. Dumb Bob thinks it's far better to win the state case in the first place. Then if you go into federal court, or however you handle it, you hold all the cards. That puts you in a position of power in negotiating a settlement.

 

What would you appeal if the judge rules that you owe the money?

Of course! A federal judge has no power to overrule the decision of a state court judge.

Yes, quite true. But proving that you didn't know about it when an officer of the court has filed an affidavit with the court stating that the defendant was properly served and also states the time and place of service as well as who was served is not an easy task in most instances.

So? Many states make the defendants pay to file their response as well as pay for each motion filed. Justice costs money. Nothing is free and the costs are escalating all the time.

No, quite the opposite in fact. Today it is the debt collector and their attorneys who have to hope they didn't violate some federal law. Even worse, they also have to hope that the debtor don't catch them at it and sue the daylights out of them. This year alone, up to the 15th of June more than 3300 federal cases have been filed against debt collectors and their attorneys nationwide. Most were filed in New York and California. and Florida. Minnesota and Illinois came in 4th and 5th. I also have a list of the top 10 attorneys who did the filing but the vast majority were done Pro Se. FDCPA and FCRA were the top causes of action but there were others as well. In some cases the plaintiffs were people whose rights were violated even though they were not even the person the debt collector was trying to collect from.

Wrong again. In fact, more often than not the defendant in federal court will attempt to make the exact argument you have outlined above only to find out the hard way that the fact that the plaintiff owes the defendant money and the poor defendant was only trying to collect the lower court judgment cuts no ice with the federal court. They get told real quick that the state court judgment or how much money the plaintiff owes has nothing to do with the present case before the court.

Dumb Bob can think whatever s/he chooses to think but in order to show that the thinking is based on something other than legal quicksand s/he must be able to show that the majority of defendants who go to court and fight win their cases. Bob's problem there is that statistics prove otherwise. Bob should remember that in the vast majority of cases the only question before the court is whether or not the defendant owes the money and if not then why not. Most defendants base their thinking on the concept that the burden of proof lies with the plaintiff but in real courtroom life nothing could be further from the truth.

Then has nothing to do with it. In state courts the only question before the court is whether or not the defendant owes the money and if not then why not. When the former plaintiff becomes the defendant in federal court the only question before the court is whether or not the defendant violated a federal law and if not then why not. If the plaintiff has the proof that the defendant broke the law then s/he wins.

Now then, back to your original suppositions. If you owe the debt how are you going to argue that you don't? Yes, in some instances defendants might be able to prove that the debt is outside the statute of limitations. In others they may be able to prove that they never owed the debt because they are not the proper defendant. In others they may be able to prove they already paid the debt. Those are rare situations comparatively speaking. Arguments that the judge can't hear the case because he has no proper oath of office on file or that the court has no jurisdiction because the plaintiff has no standing to sue or that unilateral contracts cannot be enforced or the gold fringe around the flag means that the court is a military court while the defendant is not in the military are all irrelevant and go nowhere. Equally silly is the argument that the plaintiff loaned the defendant funny money and that can be proved using the Creature from Jekyl Island or Modern Money Mechanics or that the plaintiff lost nothing because he risked no money in the process simply don't cut it. Neither does the Magistrate's decision in the Credit River case.

I wish I had a dime for every time somebody tried to feed me some loony legal theory that they heard or saw on some message board, web site or heard on some conference call.

Ok. since there is virtually no way to defeat a plaintiff with a legitimate complaint in a local court how else would you suggest that a debtor can win other than finding a cause of action in federal court? What argument do you propose that will defeat a plaintiff in a local court with a legitimate complaint most of the time? What can you propose that has a winning track record in local courts? I'd surely like to hear it if you have one and so would most other people here and elsewhere. If you have one please provide us with the name of the courts and case numbers where the argument(s) you propose have resulted in judgment for the defendant. I'd like to pull the cases and see the results right from the court records.

 

Any number of things are theoretically possible, but would depend on what happened to get you to that point. Was this a trial or summary judgment? If the defendant didn't defend herself, a lot of what she could have argued on appeal is rendered moot.

So ignoring the state proceedings means that you end up with a judgment against you in state court.

If you were sued in Virginia and you've never been to Virginia, that might be something to point out.

There are costs at the federal level too. Which states charge the defendant for appearing and answering without a counterclaim?

Dumb Bob thinks that some courts have been finding some of the more questionable written examples of alleged FDCPA violations not to be violations. When it comes to the violations over the phone, the case law is more sparse.

Of course Dumb Bob said that attacking the state judgment at the federal level is what is barred by Rooker-Feldman. He didn't claim that you couldn't sue for other things, of course you can.

Almost all pro se defendants in these sorts of debt collection cases lose, probably most via default judgments.

The question of whether or not the defendant owes money to the plaintiff is in order.just as it would be if Dumb Bob attempted to sue "cap1sucks" for an alleged debt to Capital One..

This doesn't take away the state court judgment, however.

While you have provided some silly examples, the idea that the plaintiff must have standing is not silly.

But this is the key, "legitimate complaint". Any attempt to defeat an original creditor is likely to end in tears because the original creditor can most likely provide the required proof. But isn't that as it should be? If someone legitimately owes someone money, then the courts should side with the one who is owed the money, right?

Consider 2007 NY Slip Op 51200U; 15 Misc. 3d 1148A; 841 N.Y.S.2d 826; 2007 N.Y. Misc. LEXIS 4317; 237 N.Y.L.J. 120

 

Quite so. Federal courts have no power to overturn a state court judgment in most situations. However getting the lower court judgment vacated is done during the course of Rule(26)(f) meetings. If I owe ABC Corp. $1,000 (for instance) and I have violations for #2,000 (for instance) I'll gladly pay the $1,000 after they pay me the $2,000. Wouldn't you? But that is a greatly oversimplification o what actually happens in the discovery process.

Those are all New York City cases. They are of little or no value in any other venue. A court in Maine or California or North Dakota or Texas might take them into consideration but they are not binding on any court of law anywhere else but in New York City. On the other hand, if I am a debt collector plaintiff and I attempt to use a 9th Circuit Ct. of Appeals case to argue against your local court rulings the New York judge might take the 9th circuit decision into consideration but is not obligated to rule in the same way the 9th ruled.

The only rulings that are binding upon a lower court judge are the latest ruling by the highest court in the same jurisdiction that has ruled on that matter. A ruling by the 7th Circuit would not be binding upon a New York City judge because the New York court is not in the 7th Circuit. So if you argued Fields vs. Wilburlawfirm in a New York court and the judge ruled against you even though your argument was exactly in line with Fields you would have to appeal to the next highest court all the way to the New York State Supreme Court and if you lost there then you could take it to the 2nd Circuit Ct of Appeals. If they ruled in the same way that Judge Kenneth Minh ruled in Fields then it would be binding upon the New York City courts and all courts throughout the state of New York.