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qbert

FDCPA violation if JDB sends collection letter without acknowledging debt is time-barred?

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I have a few debts that have recently passed SOL. got a 'statement' the other day from a JDB that contained the boilerplate 'we cannot sue you on a time-barred debt'. got another one today dated past SOL that contained no such verbage.

 

is that a violation worth going after them for? would a consumer protection attorney pick that up?

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I have a few debts that have recently passed SOL. got a 'statement' the other day from a JDB that contained the boilerplate 'we cannot sue you on a time-barred debt'. got another one today dated past SOL that contained no such verbage.

 

is that a violation worth going after them for? would a consumer protection attorney pick that up?

 

No.  Only one JDB is required by a settlement of a lawsuit with the courts to provide that statement in their dunning letters.  It is not required by the FCDPA to state it is beyond the SOL though some do add it even though not required.

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@qbert

 

@Clydesmom

 

It could depend upon what was stated in the letter.   The 3rd and 8th Circuit Courts of Appeals have ruled that collection on time-barred debt is not a violation as long as there's no threat of litigation.   But, in March of this year, the 7th Circuit ruled in McMahon v. LVNV Funding that a dunning containing an offer of a settlement on a time-barred debt, it could confuse the least sophisticated consumer.

 

I don't know if the 9th Circuit has ruled on the issue. 

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@qbert

 

@Clydesmom

 

It could depend upon what was stated in the letter.   The 3rd and 8th Circuit Courts of Appeals have ruled that collection on time-barred debt is not a violation as long as there's no threat of litigation.   But, in March of this year, the 7th Circuit ruled in McMahon v. LVNV Funding that a dunning containing an offer of a settlement on a time-barred debt, it could confuse the least sophisticated consumer.

 

I don't know if the 9th Circuit has ruled on the issue. 

@BV80

 

The 9th circuit has not addressed this yet that I can find.  Until SCOTUS does it is a crap shoot.  I think it is ASSET that is required by their settlement to have that statement in there.  Given the rulings conflicting at some point SCOTUS will render an opinion but that could be years away.

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funny, it is asset......

 

I think it is them but am not certain.  A quick google search reveals it may be the Northland Group that has to include that statement not Asset.  

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@qbert

 

@Clydesmom is correct.  It was Asset that was sued by the FTC and must include that notice in their letters.  But they only have to include it for a certain period of time. They don't have to do it forever.  And a violation of the FTC requirement wouldn't be a violation of the FDCPA.

 

Make sure it's not in there.  Just recently, I got one from Asset on a time-barred debt, and the notice was in small, italic print under another notice that began "Federal law prohibits...". Several sentences later, it says "the law limits how long you can be sued on a debt.  Because of the age of your debt, we will not sue you for it."

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Hey I got one right!  LOL  The CFPB and FTC are working to make that disclosure mandatory on all dunning letters that are out of SOL but it has not happened yet. The latest Amicus brief was filed in March of this year.

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I take back what I said about a time limit to include that warning.  It's under a section of the Consent Decree that states "It is further ordered that Defendant, and it's officers, etc...are hereby permanently restrained and enjoined from failing to take the following actions."

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@qbert

Recent American Bar Assn. article, "Collecting Time-Barred Debt: Is It Worth The Risk?" As always, the devil is in the details.

http://www.americanbar.org/publications/blt/2014/04/04_dominczyk.html

 

"Things were bad enough for debt collectors when it was just the FTC inspiring plaintiffs, but now the CFPB has entered the fray and has been much more active in investigating debt collectors and filing amicus briefs. (For a current list of amicus briefs filed by the CFPB, seewww.consumerfinance.gov/amicus.) In addition, the CFPB has identified the collection of time-barred debt as one of the areas it will explore in its Supervision and Examination Manual (seehttp://files.consumerfinance.gov/f/201210_cfpb_debt-collection-examination-procedures.pdf), and devoted an entire section to time-barred debts in its Advanced Notice of Proposed Rule Making for debt collection (see http://files.consumerfinance.gov/f/201311_cfpb_anpr_debtcollection.pdf). Recently, the CFPB joined the FTC in amicus briefs filed with the Seventh Circuit in Delgado v. Capital Management Services, LP, and the Sixth Circuit in Buchanan v. Northland Group, Inc." 

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New Mexico is one of the few states that require that disclosure of a time barred debt is required...

 

 

As far the courts, their rulings are all over the place

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@qbert

 

SB 233 was passed enacting the Fair Debt Buying Practices Act. The FDBPA requires bottom feeders to  state that the debt is time barred and that they will not sue on it. 233 provides for damages including attorney fees.

You could get creative and squeeze an FDCPA violation out of it as well since they violated the law. Maybe 807 for false representation, since they failed to include the mandated language of the FDBPA. There may not be any case law regarding 233 yet (I don't know), however you do not have to wait for someone else to benefit from 233 (and become case law) before you can file, but there is an SOL on it.

 

EDIT: I noticed It pertains to debts sold or resold on or after Jan 1, 21014 and not just to any case filed on or after 1/1/2014, so it may not apply to yours.

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