Expert: Regan Shinski - 11/8/2009

Question
Dear Regan,

I ignored a number of collection letters from an agency.  They filed a lawsuit against me.  The day I received the summons, I called and agreed to make payments. Ignorant of the legal process, I thought there was nothing more I needed to do and they would drop the lawsuit. They obtained a judgment against me because I didn't answer the lawsuit.

I found out later the statute of limitations had run out on the debt.

I filed a notice to vacate the judgment and have a hearing next week.  I realize I might have reset the clock,  but am i protected at all by the fact that they filed the lawsuit after the statute of limitations?

Is this a violation of the FDCRA?

Thank you.

Answer
Hi Jacqueline:

Resetting the clock depends on the state you are in.  In these states the statute of limitations (SOL) is only extended by a new WRITTEN agreement: Arizona, California, Florida, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New York, Texas, Virginia, West Virginia, Wisconsin.

Other states the SOL can be extended or tolled (paused) by partial payments.

In your case, you want to get this dismissed with prejudice (allowed in certain courts and jurisdictions) although it will likely just be vacated.  I think you will win.  If you reset the clock and it is now still within the SOL, I think they may try and refile.

Filing the lawsuit beyond the SOL is not a violation of the FDCPA in itself.  Using unfair or deceptive means to collect the debt is.  These violations usually occur through verbal statements or incorrect written documents sent by the creditor.  If the only thing you have is them filing the case beyond the SOL, you would not win a FDCPA case.

Good luck.  Glad you seem to be on the right track with this :)

Regan
mbscompany@aim.com