Chancy949 Posted November 27, 2004 Report Share Posted November 27, 2004 Collection of an old debt violates FDCPA. A debtor had a $1,200 outstanding balance on a credit card account that she had not used in 13 years. The collection agency bought the debt and sent her a letter stating: "This is an opportunity to resolve your account with no further collection action be taken against you". The debtor sued under the Fair Debt Collection Practices Act (FDCPA) claiming that the debt was time-barred because the statute of limitations is only ten years. The debtor claimed deceptive practices in violation of the FDCPA, premised on the debt collector's knowing attempts to collect time-barred debts. The dispositive fact is that a debt collector could not legally prevail on such a lawsuit and for the debt collector to represent otherwise is fraudulent. The collection agency attempted to distinguish its letter--which did not mention a lawsuit--from the letters at issue in earlier cases where collection agencies had either threatened to sue or actually sued on a time-barred debt. But the court refused to draw that distinction. (U.S. District Court for the Northern District of Illinois) Link to comment Share on other sites More sharing options...
Rich Posted November 27, 2004 Report Share Posted November 27, 2004 This may apply to me also. Sherman Aquistions sued me and got a default judgement on an SOL debt, which they just withdrew this week, after pressure from my Atty. But they also sent a collection letter in the mail to me just a few days ago, from another old time-barred credit card debt, offering a "generous" 50% settlement offer. This is apparently different account as the acct number is different from the first one. I don't have the letter with me, but I don't recall them threatening to sue, only trying to collect. After reading your post I may forward this letter to my attorney, because since they've already sued me for one time-barred debt, I could assume they would try to do so again. Hmmm......... I have to give some serious thought, and maybe add it to my present complaint against them.Man, this stuff just keeps getting more and more wierd. Link to comment Share on other sites More sharing options...
luckyduck Posted November 28, 2004 Report Share Posted November 28, 2004 HOLY crappola!! Is that what I think it is? A debt collector cannot even attempt to collect a debt in any way shape or form, if the debt is out of SOL?? Please tell me I'm reading that right!!Just where can we read this case??[edited - added] I'm in Indiana and Illinois cases are considered strong persuasion to our courts. So, this would be great. Link to comment Share on other sites More sharing options...
KentWA Posted December 17, 2004 Report Share Posted December 17, 2004 Chancy949, where did you find the info on this? Any information on the parties in this case I can use to find the decision? If you have info I will pay to get the Pacer info and get a copy to post here in the forums for others to use, since I need this for 3 items I am fighting. Link to comment Share on other sites More sharing options...
KentWA Posted December 17, 2004 Report Share Posted December 17, 2004 OK, Here is what I found so far using Google:"In Kimber v. Federal Financial Corp., the debt collector threatened to file a collection action when they knew or reasonably should have known that such an action was time-barred. At first glance, this would seem like an obvious violation. However, as the collector correctly pointed out, the filing of such an action was not time barred nor was there impossibility of prevailing because the onus would be on the debtor to assert the affirmative defense of statute of limitation. In ruling for the debtor, the court observed that such a tactic would have the tendency or capacity to deceive the least sophisticated consumer. "It is that "least sophisticated consumer" bit again. I just love that. BTW, Sykes relies on this in its ruling and Sykes is one of our most powerful tools. Still looking for the original decision via Google before I pay pacer for it. Link to comment Share on other sites More sharing options...
Chancy949 Posted December 17, 2004 Author Report Share Posted December 17, 2004 Here is the link I used to find this informationhttp://www.legalsurvival.com/Debtor_and_Creditor/I justed GoogledAdvance SearchWith all of the words FDCPAwith the exact phrase case lawthat's how I found it. 8) Link to comment Share on other sites More sharing options...
calawyer Posted December 17, 2004 Report Share Posted December 17, 2004 Search on this board for "Kimber". You will find a lot of discussion about this topic a while back. Link to comment Share on other sites More sharing options...
KentWA Posted December 17, 2004 Report Share Posted December 17, 2004 Now the rest of the story -- Although some sites cite Kimber as barring "collection" of time barred debts, this is a very loose use of the term. Kimber specificly addresses "Collection Suits"."the court held that it is "unfair " within the meaning of the federal statute to file a time-barred collection suit against a consumer,and that it is a deceptive act to even threaten to file such a suit."It does not speak to attempting continued collection process of bugging you continuosly.BTW, I found the info on a site for the Collection industry first (of course verified elsewhere) and read a very interesting post concerning the bottom feeders that are JDB in response to someone asking about suing on these debts. He said "any good collector is not going to worry about suing and the waste of time, if you run into the knowledgable debtor, just move on, to many stupid ones that you can get to pay out there." Link to comment Share on other sites More sharing options...
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