Yesterday, the U.S. Supreme Court heard arguments in a Fair Debt Collection Practices Act case involving an old debt that was past the statute of limitations. It’s not often that the Supreme Court hears a FDCPA case, so I thought it would be worth digging into a bit. Plus, the issue involved in the case is one that affects consumers everywhere.
The consumer, Aleida Johnson, filed a Chapter 13 bankruptcy. In a Chapter 13, the person typically pays a portion of each of her debts and the remaining amount of the debts is wiped out. The amount of each debt that gets paid depends on the person’s income and assets. For a creditor to qualify to have some of its debt paid back, it has to file a “proof of claim” with the bankruptcy court. The proof of claim is just the basic information about the account, such as the amount, the date the account was opened, and so forth.
In Ms. Johnsons’s case, a debt buyer named Midland Funding filed a proof of claim with the bankruptcy court for a debt that was over ten years old. The debt was so old that it was past the statute of limitations, which is the amount of time, by law, that a creditor has to start a lawsuit to collect an unpaid debt. In Ms. Johnson’s case, which arose in Alabama, the statute of limitations for suing on unpaid debts is six years. So there was no dispute that Midland could no longer bring a lawsuit to collect the old debt.
Many courts have ruled it is a violation of the FDCPA for a debt collector to file a lawsuit on an old debt that is past the statute of limitations. The related issue that the Supreme Court has to decide is whether it is a FDCPA violation for a debt collector to file a proof of claim in bankruptcy court on a debt that is past the statute of limitations. A decision in the case isn’t expected until June of 2017, but some of the Justices’ comments were revealing:
JUSTICE SOTOMAYOR: I’m having a great deal of difficulty with this business model…You buy old, old debts that you know for certainty are not within any statute of limitations…And apparently, you collect on millions of dollars of these debts.
JUSTICE ALITO: If your description of Midland’s business model is correct, it doesn’t seem to me that it has much, if any, social utility.
The case, of course, will ultimately turn on the legal question involved, but these comments show that some of the Justices are skeptical of Midland’s business model.
What you need to know about the collection of old debt
If you’re facing debt collection on a debt that is more than a couple of years old, the first thing you should do is figure out how long the statute of limitations is. Remember, the statute of limitations is the amount of time set by law for a creditor to start a lawsuit against you. In Minnesota, for example, the statute of limitations for most debt collection lawsuits is six years. This means that the lawsuit only has to be started within six years. It doesn’t mean that the lawsuit has to be finished within six years.
Once you know what the statute of limitations is, you need to determine when it starts to run in your case. Generally, the statute of limitations begins to run on the first day that you are in default on your account. A quick way to figure out when your account went into default is to determine the date that you made your last regular payment. Although this won’t always be a precise date that the statute of limitations began to run, it’s a good estimate.
When you know the applicable statute of limitations and the date it started in your case, the rest is just simple math. Using Minnesota’s six-year statute of limitations as an example again, if you defaulted on your account on December 15, 2011, the creditor must start the lawsuit against you no later than December 15, 2017.
If the creditor doesn’t start the collection lawsuit within the statute of limitations, it loses its ability to use the judicial process to collect the debt. This doesn’t necessarily mean that the creditor can’t call or write you to collect the debt. In Minnesota, a debt collector may collect a debt that is past the statute of limitations. But it can’t threaten to sue you or sue you for an old debt that is past the statute of limitations. And if the debt is more than seven years old, it can’t be reported to the credit bureaus.
If the debt collector brings a lawsuit on a debt that is past the statute of limitations (or time-barred as some courts say), you have an absolute defense to the collection lawsuit. You need to raise this defense in your answer or it may be waived. Also, it’s your burden to prove that the statute of limitations is up and you may need to gather some evidence first. But this is a powerful defense that, if proven, will result in the debt collector’s case being thrown out.
In addition, many courts have held that a debt collector violates the FDCPA when it threatens to bring or brings a lawsuit for an old debt that is past the statute of limitations. When a debt collector violates the FDCPA, you have the right to sue them and the law provides that the collector has to pay you up to $1,000, plus any provable actual damages–such as emotional distress. Further, the debt collector has to pay your attorney fees and costs. So if everything goes your way, you could get the debt wiped out and get some money back from the debt collector.
A quick summary of the law on the collection of old debt
(1) In Minnesota, a debt collector can attempt to collect a debt past the statute of limitations through phone calls, letters, or similar methods. This rule may be different in other states.
(2) A debt collector in Minnesota cannot, however, threaten to sue you or sue you for a debt that is past the statute of limitations. This is also true in most other states.
(3) A debt collector cannot put a debt that is more than seven years old on your credit report. This is true everywhere. I would also take the position that a debt collector cannot even threaten to report a debt that is past the statute of limitations.
(4) Until the Supreme Court decides the Midland Funding case, it is unclear whether a debt collector can file a proof of claim in a Chapter 13 bankruptcy and receive payment through the bankruptcy process. But we should definitively know the answer to this question in the next six months or so.