Debt Collectors Who Threaten To Sue On A Time Barred Debt Violate The FDCPA

Debt Collectors Who Threaten To Sue You On A Time-Barred Debt Violate The Fair Debt Collection Practices Act

This is a common problem - debt collectors in general (and debt buyers in particular) - will get debts that are clearly outside the statute of limitations in Alabama (either 3 or 6 years) and they will threaten to sue you.  This is a violation of the FDCPA (click here if you would like to read our FAQ on stopping abusive debt collectors).

Here's how this normally works:

• You either owe a debt or allegedly owe a debt;
• It goes into default in, for example, 2001;
• A debt collector or debt buyer such as Portfolio Recovery starts collecting against you;
• Portfolio Recovery starts blasting your cell phone with auto dialed calls [Portfolio denies that it does this but we have sued them on this and we are confident in our opinion that Portfolio uses auto dialed calls]; and
• Portfolio Recovery will then tell you over the phone that unless you pay this you will "be taken to court" or maybe the debt buyer is more direct and just says "We will sue you to get this money."

So, what does all of this mean?

First, if you did not give your cell phone number out or if you revoked permission to call your cell phone then Portfolio Recovery (or whoever the collection company is) likely violated the Telephone Consumer Protection Act (TCPA) and may be liable for either $500 or $1500 per call.

But back to our main topic - the threat to sue you would likely violate the FDCPA. . . . even if Portfolio Recovery never sued you.

Why?

Because a debt collector cannot . . . ever . . . under any circumstance . . . threaten you with something that:

• It never intends on doing; OR
• It cannot legally do.

So this means if a collector never intends to sue you . . . it can't threaten you.  Even if it has the right to sue you it . . . to threaten is a violation of the FDCPA.

It is even more of a violation when the collector cannot do what it threatens.  So no threats of arrest or garnishment (without having a judgment unless certain types of student loans) or deportation, etc.

One thing that a debt collector cannot do is sue you after the statute of limitations has expired.

So . . . if Portfolio Recovery can't sue you after the statute of limitations has expired (either three or six years depending on various factors) then it cannot threaten to sue you.

So if Portfolio Recovery or some other debt collector does threaten you with suit (or even sues you) after the statute of limations has expired - what should you do?

Sue under the FDCPA.  Get damages.  Make Portfolio Recovery pay attorney's fees.  You may be able to sue under the Alabama state law of Malicious Prosecution or Abuse of Process.  Both of these allow for punitive damages.

Bottom line is if any debt collector - Portfolio Recovery, LVNV, NCO, IC Systems, etc - threatens you with suing you after the statute of limitations has expired or threatens you with any other action it won't or can't do - then you need to meet with a consumer lawyer to understand your rights.

And not only understand your rights but also understand what is the best course of action.

If you would like more information about your rights, you are welcome to have our book "STOPPING ABUSIVE DEBT COLLECTORS" as well as other similar materials.  Simply call us at 205-879-2447 or fill out our contact form.

For more information you are also welcome to look through our numerous videos on YouTube.

Let us know how we can help you.