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can creditors sue you?

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Yes, they can still sue, and if you don't show up and raise the SOL as an affirmative defense, they can still win.

The last collector that sued me did not show up in court, so I made a motion to the judge to dismiss the case with prejudice; siting the legal reasons, and he hit the gavel and did so. One reason was it was time-bared, he other the CA failed to show as ordered.

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The last collector that sued me did not show up in court, so I made a motion to the judge to dismiss the case with prejudice; siting the legal reasons, and he hit the gavel and did so. One reason was it was time-bared, he other the CA failed to show as ordered.
This is how it is supposed to work, so you did the right thing. There is still an open question as to whether you had a valid FDCPA counterclaim against the CA for collection activity on a time-barred debt. Most say no, but the door remains open.

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I'm of the opinion that when a CA/JDB attempts to collect a debt which is time barred by SOL there is no excuse for not being aware of that, and one might be able to press this matter under the following statutes:

(1) US CODE TITLE 18 CHAPTER 63 MAIL FRAUD( FRAUD AND SWINDLES)

..ASSUMING THAT THEY DID SEND YOU A DUNNING LETTER ON A TIME BARRED DEBT.

(2) SECTION 5 OF THE FTC ACT...DECEPTIVE BUSINESS PRACTICE

....for the same reasons as stated above.

(3) COMMITTING FRAUD UPON THE COURT...by filing suit on a debt which has gone past the SOL as well as

Issuing and serving a summons and complaint on a time barred debt

NOTE: the above are my personal opinions...but might be worth considering.

Your input appreciated.

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There are many factors that go into making a debt time-barred, including facts that the CA would have no way of knowing. That's why SoL is a fact based affirmative defense and not a barrier to filing.

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There are many factors that go into making a debt time-barred, including facts that the CA would have no way of knowing. That's why SoL is a fact based affirmative defense and not a barrier to filing.

Why would a CA not have that info ? Do not the CA"S pull a credit report which usually indicates that "this is scheduled to be removed on a certain date "

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Choice of law provisions, date of first delinquency, or one the many reasons why SoL could be tolled even if they have a delinquency date certain. Even the state you are sued in plays a factor. Some states say SoL is procedural, some say substantive. There are many factors that go into time-barring a debt. IMO, that's why courts don't set the barrier at the point of filing. They set the barrier as an affirmtaive defense so that the court can sift through these factors and make a determination based on the facts alleged by both parties.

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Very well said JQ. I have been an advocate of a debt being extinguised if the SOL expires. However, after reading your posts and doing my own research on the topic I've found that it would be next to impossible.

There may be a triable issue of fact as to when an SOL begins and ends, if an SOL was tolled at any point (in NY leaving the State tolls an SOL), and the problem is all States do not have the same SOL.

Also say for example a defendant lives in Virginia where the SOL is 3 years, if you have the debt be automatically extinguised after 3 years, what happens if the defendant subsequently moves to NY where the SOL is 6 years? It gets too messy.

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You are all misunderstanding why suing over a time-barred debt is actionable under FDCPA. It has nothing to do with the underlying debt. Rather, it has to do with the misrepresentation that the debt is still enforceable. Therefore (and the FTC and Courts have agreed with this) if the simple act of even threatening to sue on a time-barred debt is a misrepresentation of the legal nature of the debt then the act of DOING it must also be a misrepresentation. To hold otherwise would make a mockery of the entire legal system. Imagine a person being convicted of a crime for threatening to murder someone else, but the law being without grounds to try him if he were to actually DO it.

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This was addressed because whether it is enforceable or not is not always straightforward. So the FDCPA misrepresentation claim is contingent on whether or not the underlying debt is time-barred or enforceable. The crucial element is whether the affirmative defense would have been successful had there been a lawsuit and it was properly raised.

This debate has been going on for a few years now in consumer legal circles. There is no right answer to this question.

Edited by jq26

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I believe suing for out of SOL IS actionable under FDCPA due to the "taking or threatening to take actions that legally cannot be taken"

I do not buy the argument "but there are so many SOL they may not know"

They "should KNOW" the SOL in the state they're suing in, and all the applicable laws before dragging someone into court on a SOL barred "alleged debt" after all they do this for a living, it's their job for crying out loud!

Even Mid (something LOL) LLC has stated they won't sue on > 4 yr old debts so as to not make an honest mistake, proving that the bottom feeders know what they've been doing....

IF they really do not know, it's their task to find the right answers prior to filing a suit, they are aware of the FDCPA and know they can be held liable under it and a whole host of other state and Federal laws....NO one is forcing them to file suits, robo sign Affidavits or any of the things going on illegally......it's all about easy $$ and the risk/reward has been "worth it" , that seems to be somewhat changing, for the better as it should.

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And I think they should be held accountable for the action they knowingly take.

There should be no. I am sorry your honor we did not know.

When they sue for these SOL debts knowingly, all they are hoping for is a no show on the defendants part so they get the quick default judgment.

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I believe suing for out of SOL IS actionable under FDCPA due to the "taking or threatening to take actions that legally cannot be taken"

I do not buy the argument "but there are so many SOL they may not know"

They "should KNOW" the SOL in the state they're suing in, and all the applicable laws before dragging someone into court on a SOL barred "alleged debt" after all they do this for a living, it's their job for crying out loud!

In the first statement, not correct. Since time barring is an affirmative defense, there is no violation for taking an action that cannot be legally taken if the CA sues (or threatens to) on time barred debt. They are allowed to sue. It is up to the consumer to raise the defense. Therefor no violation occurs.

The argument that a CA does not know, however, is a valid one. The FDCPA, being a strict liability law, requires the CA to do their homework so they are not going after the wrong people or for things they are legally unable to collect. This is equally important in the case of debt discharged in bankruptcy. The FDCPA gives a bonafide defense ONLY if the CA has procedures in place to prevent the violation and those violations failed due to no fault of the CA. As such any CA that claims not to know the SoL on a debt is statutorily in violation of the FDCPA for not having procedures in place to prevent the violation.

There may be something to counterclaims regarding misrepresenting the legal status of a debt if the CA files a lawsuit claiming a debt is collectable when it is past SoL. So collectors should be very careful how they word their complaint to the court.

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