Debt collectors are well known for the way they do business. They’re much more concerned with getting paid than with how they go about collecting the debt.
As long as they can get a consumer to pay the debt that is owed they care little about consumer’s rights or even whether they are hounding the right person. It is up to consumers themselves to be informed on state law that deals with collection practices.
The statute of limitations on debt plays a big role when it comes to collection agencies and whether they’re in a gray area in terms of collecting debts from consumers. The purpose behind statutes of limitations is to give consumers protection from debts that are very old.
Only in the most extreme cases can consumers be collected upon, even decades after the original debt was incurred. In some cases, like credit card debt and other unsecured debt, the statute of limitations is up to seven years since there was activity on the account.
Be Careful When Dealing with Debt Collectors
Some debt collectors try to cheat the system, which is why you should be on your toes as a consumer, even if the debt is actually yours. When it comes to your own personal finances, no one else is going to have your best interest at heart.
You should be informed of the laws and rules that govern debt collection. Debt collectors are notorious for their unscrupulous tactics when it comes to trying to get consumers to pay up on past-due debt.
In many cases, consumers pay off these debts because they continue to appear on their credit reports. Just because the debt appears on your credit report doesn’t necessarily mean you have to pay it.
The only time I would pay a debt beyond the statue of limitations was if I knew that I could get them to remove a negative item from my credit report. The statute of limitations on debt is an entirely separate issue from the reporting limits on debt on your credit report.
Statute of Limitations May Vary By Contract Type
The time limit on debt is going to be determined by the type of debt it is. Generally speaking, there are four types of debt that you should know about. Each is treated differently in terms of how long you’re still obligated to pay them.
1. Oral Contracts
The first type of debt contract is an oral contract. You’re obligated to pay on an oral agreement, even if you don’t have a signed piece of paper showing you owe the money, but it is a lot harder to enforce in court.
2. Written Contracts
A written contract is the next type of contract that can obligate a person to pay back a debt. A written contract is exactly what it sounds like; there is a contract that states in writing the amount of money borrowed.
The debtor and the creditor have a written agreement that is signed by both parties. This type of contract is binding in court and is easier to enforce because all the terms and conditions of the agreement are in writing.
3. Promissory Notes
A promissory note is very similar to a contract. It briefly states the terms and agreements of the payment. It is considered a “negotiable instrument”. Promissory notes are written with a “Promise to Pay” statement which includes an outline of how the note will be paid.
A good example of a promissory note would be a mortgage. A mortgage not only outlines who owes the money and who is lending the money but also tells when and how the debt will be repaid.
4. Revolving Line of Credit
A revolving line of credit is a credit line opened for the consumer to use at their discretion. The amount borrowed and the terms of repayment can fluctuate based on creditworthiness, market conditions, and a person’s history with the creditor.
Two common examples of a revolving line of credit that you might be familiar with are a credit card and a home equity line of credit (HELOC). A revolving line of credit can either be an unsecured or secured debt.
Statute of Limitations By State
|State||Open-ended Accounts (credit cards)||Oral||Written||Promissory|
|Dist. of Columbia||3||3||3||3|
Which jurisdiction is my credit card debt subject to?
While you should speak with a paralegal or lawyer about specific questions, the jurisdiction determines the statute of limitations.
In most cases, it will fall under the jurisdiction where you signed the credit application or credit card agreement. However, in some cases, it could be in the state where you live now. Each of the 50 states and the District of Colombia have their own laws.
Debt collectors will typically try to move the venue to the place where they have more time to collect the money they say you owe. However, that doesn’t mean they will be allowed to do so. It’s up to you to make a compelling argument as to why a different state’s statute should be used.
Is My Debt Past the Statute of Limitations?
A simple way to figure out whether the debt that’s being collected is past the statue limitations:
Find out the date of last activity. This would be the date you last paid on the account or when you first got a letter in the mail demanding payment for any debt because of your delinquency.
Look at the table above and find for your state. Subtract the current year from the year of the last activity on the credit account and compare the result to the time period your state allows a creditor to collect a debt.
If the number of years on the statute of limitations is smaller than the current year minus the year of last activity, you should be in the clear.
Let’s work through an example. Jim ordered some stuff on his credit card in 2011 and stopped making payments later that year. The bank sold this credit card debt to a third party collection agency who is now trying to collect in 2016.
So you take 2011, which is the date of last activity on the account, and subtract it from 2016 and get five years. Now you look at the state where you made the transaction or where you currently live, whichever one is greater, then you compare that time period to five years.
If the number is greater than five, they a legal right to pursue the debt. However, if the statute of limitations is less than five years, you don’t legally have to pay the debt.
You are “safe” from being sued over the debt because you have what is known as an absolute defense. You will not automatically win the lawsuit if you do not present this defense, however. You still have to go to court and raise the defense in order to prevent a judgment against you.
Should I make a partial payment?
You may think to yourself that legally the time to collect on your debt has expired so I don’t have to pay but since I did technically borrow the money maybe I should make some kind of partial payment. While that is a very noble sentiment, you should realize the implications of what you’re doing.
In our example above, the day of last activity was in 2011, but now that you’ve made a payment in 2016 that starts the clock all over again.
By making a payment, you are admitting that indeed it is your debt. This not only means they can try to collect the debt but it also means they can take you to court and sue you for the money you have not paid.
What do you do if you are close to the expiration date? You may have a debt in collections that is close to expiring and you don’t know it.
Debt collectors are very aware of the statute of limitations. The fact is if they don’t get their money in time, they have no legal recourse to collect on the debt they have paid to acquire.
In fact, debt collectors may increase the pressure because they know that in a month or two they’ll have no recourse to collect on a debt.
It is your obligation and your right as a consumer to be well informed about the statute of limitations in your jurisdiction and what it means to have the debt fall outside that range of collection action.
What can you do if you have a debt that has expired and you have some shady debt collector still trying to collect on that debt? Simply send a certified cease and desist letter requesting they no longer contact you about the debt because, legally, you don’t have to repay it.
Can a debt collector try to collect money from you after the debt has expired?
The answer really depends on the state in which you live. In some places, the debt collector can still attempt to collect any amounts owed.
You do have the option to formally request that they stop contacting you, which at least gives you some relief from being badgered with phone calls all the time.
It’s best to do this in writing so there is a record of the request. After that, the collection agency may only contact you one more time to let you know they received your request. At that time, they can also tell you if they plan to take any legal action.
However, in other states, it’s actually illegal to attempt any kind of debt collection once the debt has expired. Look up your individual state laws to know which type of state you live in.
Can you be sued after a debt has expired?
Yes, you can still be sued, but you can use the expired statute of limitations as part of your defense.
Debt collectors have the most success when you don’t show up for the court proceedings; in fact, that’s when you’re most likely to receive a judgment. If you receive any kind of legal notice regarding your debt, respond to it right away. If you’re not sure what to do, contact an experienced attorney for help.
Does debt stay on your credit report after it has expired?
Yes, because credit reporting requirements as outlined in the Fair Credit Reporting Act differ from state laws on statute of limitations.
Most are somewhere between four and six years. However, delinquent debts and collections typically stay on your credit report for seven years from when you first became behind on the account.
So, for example, if the statute of limitations in your state is five years, that debt will still stay on your credit report for another two years, unless you can get it removed.
Which state’s statute of limitations applies to your debt if you’ve moved to a different state?
Legal intricacies get complicated when there’s more than one state involved. If you have an account that went into collections in one state, then you moved to another, first check your contract with the original creditor.
Sometimes, especially with credit cards, the terms of your contract have already established which state’s laws will be used. In most cases, this is the state in which you lived when the contract started.
If the contract doesn’t define which state’s rules apply, then the court may decide if the collection agency decides to sue you. Oftentimes the court will rule in favor of the shortest statute of limitations, but that hasn’t always been the case. Your best bet in this situation is to get an attorney to help.
Is there a statute of limitations for court judgments?
Yes, court judgments in most states are 10 years and it can be even more in some. Plus, statutes of limitations on court judgments can usually be renewed.
Know Your Rights and Avoid Unnecessary Payments
Here is what you should take away from this article at the end of the day:
If you are in debt to a collection agency or to a creditor and you signed a legal document promising to repay, and the nonpayment or delinquency of that agreement has shown up on your credit report, it does not mean you still have a legal obligation to repay that debt.
If a debt has expired, repaying the debt will actually hurt you in terms of your vulnerability to lawsuits.
Creditors cannot garnish wages, freeze bank accounts, or successfully file a lawsuit for payment of a debt once the debt has expired.
Even if the debt is still listed on your credit report, make sure you confirm the statute of limitations before agreeing to make any payment or admitting to owing the debt.