@ABattle wrote:
I have an CA that is due to fall of my credit in 10/2010. Can they still try to collect once the SOL expires?
You state your are in California, so there is something I dug up from the archive:
Remember, your SOL (time barred) is you affirmation defense that MUST be initially stated in your response to a summons (I highlighted the appropriate passage):
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Unlike some other states, California adheres to the rule that the lapse of the statutory period within which an action can be commenced does not extinguish the obligation sued upon. Mitchell v. County Sanitation Dist., 150 Cal.App.2d 366, 370-372 (1957). This is because, the statute of limitations arises under the California law of procedure, and, thus, a statute of limitation "affects only the remedy sought, but "not the substantive right or obligation" sued upon. Adams v. Paul, 11 Cal.4th 583, 597 (1995) (Kennard, J. concurring) (emphasis added); Western Coal & Mining v. Jones, 27 Cal.2d 819, 828 (1946); Flowers v. Torrance Memorial Hospital Medical Center, 8 Cal.4th 992, 999 (1994); Nelson v. Flintkote, 172 Cal.App.3d 727, 733-734 (1985).
As recently as 1995, Justice Joyce Kennard of the California Supreme Court wrote on this subject: "In other words, a cause of action is not extinguished or impaired by the mere passage of time, and the maintenance of the claim is not precluded simply by the running of the statutory period". Adams v. Paul, supra, 11 Cal.4th at 597 (emphasis added). As noted, because the statute of limitations affects the remedy only, "it gives the debtor a personal privilege that he may or may not choose to exercise." 3 Witkin, California Procedure § 413, p. 521 (4th ed. 1996). And, since the statute of limitations is a personal privilege, it may be waived at the option of the one entitled to assert it; if the statute is not affirmatively pled or asserted by a defendant, its benefits are waived. Adams v. Paul, supra, 11 Cal.4th at 597; Bliss v. Sneath, 119 Cal. 526, 528 (1898); Mysel v. Gross, 70 Cal.App.3d Supp. 10, 15 (1977); Mitchell, supra, 150 Cal.App.2d at pp. 370-372.
Put another way, if the defendant does not affirmatively invoke the procedural defense of the statute of limitations, the defense is waived or forfeited. Minton v. Cavaney, 56 Cal.2d 576, 581 (1961). Under such circumstances, a plaintiff has every right to pursue the claim on the merits, regardless of whether the action is otherwise untimely. Adams, supra, 11 Cal.4th at 597. "Thus, unless the defendant properly invokes the statute of limitations as a defense, the expiration of the statute of limitations does not affect even the remedy". Ibid.
Clearly, given the foregoing authority, in California, a party may legally file and prosecute on a claim or debt that may otherwise be time barred under the applicable statute of limitations. See, e.g., Nelson v. Flinkote Co., supra, 172 Cal.App.3d at 731-733. While the "remedy" (i.e. right to collect damages) may be impaired procedurally, the right to sue, in and of itself, is not affected. Furthermore, unless the procedural defense of the statute of limitations is properly invoked, it is "forfeited" and the statutory period does “not affect even the remedy”. Adams, supra, 11 Cal.4th at 597.
To my knowledge, no exception to these rules exist as to lawsuits filed by collection agencies against consumers/debtors under California law.
Federal District Courts Outside Of California Have Ruled The FDCPA is Violated When A Debt Collector Knowingly Sues A Consumer On An Obviously Time-Barred Claim
Even though controlling California law appears clear, Federal Courts outside of California have ruled to the contrary. In these decisions, the courts have agreed that attempting to collect on a debt as to which the statute has run is a misrepresentation of the legal status of the debt, in violation of the FDCPA. These decisions are not controlling on California state courts, or even other Federal district courts located in California. However, California courts could conceivably find the decisions persuasive in some sense, and they have, of course, the ability to follow their reasoning. Thus, a brief examination of those cases is warranted here.
The leading case is Kimber v. Federal Financial Corp., 668 F.Supp. 1480 (M.D Ala. 1987). In Kimber, the debtor incurred a debt to a retail store that became overdue in September of 1975. In 1976, the debt was purchased by the Federal Financial Corporation ("FFC"). In 1984, FFC assigned the account to an attorney for collection. In 1985, during a telephone call with the attorney's office, the debtor was informed the now 10-year-old debt needed to be paid or she would be sued. She refused to pay, and suit was actually filed by FFC in Alabama state court.
The debtor answered the complaint and actually raised the statute of limitations as a defense. The state court dismissed the case as untimely because the longest possible limitations period (6 years) had long expired by the time the action was filed in 1985. Subsequently, the debtor filed an action under the FDCPA claiming that FFC's filing of a clearly time-barred lawsuit violated § 1692e and § 1692f as an unfair, unconscionable, and deceptive means of collecting the debt. The court agreed. Kimber, supra, 668 F.Supp. at 1487. The court wrote, in pertinent part:
The court agrees with Kimber that a debt collector's filing of a lawsuit on a debt that appears time barred without the debt collector having first determined after reasonable inquiry that the limitations period has been or should be tolled, is an unfair and unconscionable means of collecting the debt . . ." (Kimber, supra, 668 F.Supp. at 1487).
The court explained its reasoning as follows:
[T]ime barred lawsuits are, absent tolling, unjust and unfair as a matter of public policy, and this is no less true in the consumer context.As with any defendant sued on a stale claim, the passage of time, not only dulls the consumers memory of the circumstances and validity of the debt, but heightens the probability that she will no longer have personal records detailing the status of the debt. Ibid.
Significantly, the Kimber court rejected the argument I made above that "the statute of limitations is an affirmative defense which is waived if not raised [and] a plaintiff may not be penalized for knowingly filing a time barred suit". Id. at 1488. The court's wholly unconvincing rationale for rejecting this argument was that Rule 11 of the Federal Rules of Civil Procedure permitted the imposition of sanctions against an attorney who knowingly filed a time barred suit in federal court. Ibid.
The court's conclusion, based on this reasoning, is, in my judgment, a non sequitur. After all, the original action had been filed in state court, pursuant to state procedural rules. Any analysis concluding that liability under the FDCPA could be premised on Rule 11 sanctions under Federal procedural rules is legally incoherent and unconvincing. Such rules simply were inapplicable in the context of the state court collection suit filed against the debtor, Ms. Kimber.
Justification, if any, for finding a violation of the FDCPA in this context appears to require state law authority prohibiting the filing of a time barred account. In California, as noted above, no such authority appears to exist. Such a filing cannot be deemed malicious prosecution under California law or even an abuse of process. Warren, supra, 220 Cal.App.2d at 1301-1303. And, while California public policy does indeed discourage the filing of so-called "stale" claims , public policy, as articulated by the California Supreme Court, also recognizes that statutes of limitations are:
. . .technical defenses which should be strictly construed to avoid the forfeiture of a plaintiff's rights. . .Such limitations are obstacles to just claims and the courts should not indulge in a strained construction to apply these statutes to the facts of a particular case. . .[T]here is a 'strong public policy' that litigation be disposed of on the merits whenever possible. (Steketee v. Lintz, Williams & Rothberg, 38 Cal.3d 46, 56 (1985).)
Effective January 1, 2001, a violation of the FDCPA (with certain exceptions) is ipso facto also a violation of California's Rosenthal Fair Debt Collection Practices Act. See, e.g., Cal. Civil Code § 1788.17. Hence, a violation of the FDCPA may likewise lead to liability under California's Rosenthal Act.
Starting Score: EQ 583 TU04 619 EX 592 (lender pull) 2010
