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Dealing with Creditors or Debt Collectors

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Do you get letters from creditors or debt collectors trying to collect old credit card, retail, or medical debts, and wonder “how long do these people have to collect this stuff?” The debts may seem so old you don’t remember even incurring them, and maybe you even thought the debts had disappeared or been forgotten.

The Statute of Limitations

The time that someone has to sue someone else (including the time a creditor has to sue someone who owes them money) is called the statute of limitations (SOL). There are SOLs in criminal law as well, but we’ll just talk about civil cases. The SOL to sue varies, depending on what kind of case it is.

How long a creditor has to sue a debtor is a surprisingly complex question. Your credit obligation is, at its heart, a contract. In Florida, there is a five-year SOL to sue for any breach of written contract action (it’s four years for oral contracts).

So that would make it appear to be easy; start from the date that you first defaulted on the credit agreement and after five years, you’re free–the creditor can no longer collect.

Choice of Law Problems

Not so fast. Many credit agreements have what is known as a “choice of law” provision in them. You may have seen these paragraphs that will say “in any dispute, the laws of the state of (state name) will apply.” Almost every credit agreement has this provision, and for good reason. By contract, the creditor has selected to use the laws of a different state to apply to your contract, and has likely chosen a state with a longer SOL than Florida has.

Many states have SOLs to collect debts that go up to ten years. Some don’t have any SOL at all. So even though you’re in Florida and the debt was incurred here, the SOL may be from the laws of a state where the SOL is much longer than Florida’s.

So the only way you’d know for certain whether time has expired is by getting a copy of your original credit agreement(s) and looking up the SOL laws of the state the agreement uses.

After the SOL Expires

It can get even more complex than that. Let’s assume that you know for certain that Florida’s SOL applies (again, 5 years). It’s been six years, yet you’re getting letters to collect a debt. Is this legal?

It may be. That’s because the SOL only says how long a creditor has to sue you. That’s not a limitation on how long the creditor can write you letters, call to collect, and do everything other than actually sue you for the debt.

While the debt collector could legally say the debt was valid and try to collect, it could not legally threaten to sue you after the SOL expires. If it does, that would be a violation of the Fair Debt Collection Practices Act (FDCPA).

Be aware that all of this doesn’t apply to mortgages, which have different SOL rules. This also does not apply to collecting on judgments–that is, where a lawsuit has already been filed, and a judgment entered against you.

Let an Attorney Help You

Contact Jacobs Legal in Miami today to discuss whether you have a claim or defense against a creditor who is threatening you with old debt, or debt you don’t recognize as yours at all.

Resources:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0095/Sections/0095.11.html

stetson.edu/law/lawreview/media/choice-of-law-problems-in-florida-courts-a-retrospective-on-the-restatement-second-24-3.pdf

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