ARE YOU RECEIVING ROBO CALLS ON YOUR CELL PHONE ABOUT AN ACCOUNT THAT MAY BE TIME BARRED BY THE STATUTE OF LIMITATIONS?
If a company is robo calling you about a debt that you allegedly stopped paying many years ago and you believe the account may be time barred by the statute of limitations, you may have valuable rights under the Telephone Consumer Protection Act (“TCPA”) in addition to your potential under the Fair Debt Collection Practices Act (“FDCPA”) and state collection practices acts including the Florida Consumer Collection Practices Act (“FCCPA”).
CONSULT WITH AN EXPERIENCED TCPA – FDCPA LAWYER BEFORE YOU SEND A “CEASE AND DESIST” OR “CEASE COMMUNICATION” LETTER
Please do not rely on the internet for legal advice — including lawyer’s websites and not debtors’ discussion forums. There are far too many mistakes. Even correct information about a specific issue must be pieced together into the consumer’s overall puzzle.
Many people (even attorneys) do not even know about the Telephone Consumer Protection Act (“TCPA”). Many consumers have a basic understanding of the Fair Debt Collections Practices Act (“FDCPA”) and make decisions using the FDCPA to take actions that they would not have taken if they had consulted with a consumer lawyer who understands the TCPA, FDCPA, and collection defense.
The interwebz are loaded with “cease communication” letters and those websites and forums almost always fail to advise the consumers who visit their website to explore their potential rights under the TCPA before sending an FDCPA cease communication letter. The wrong choice can consumers a lot of money by leaving the consumer with an insufficient number of calls to merit pursuing a TCPA case. Many cease communication letters have lead to a call history that is insufficient to provide a basis for a FDCPA lawsuit that is likely to be a winner.
It is very important to make the correct decisions — the TCPA provides that called parties shall receive $ 500 per call made in violation of the TCPA and, if the violation was willful, up to an additional $ 1,000 per call. That’s up to $ 1,500 per call, prerecorded message, or text message!
Even if caller complies with the FDCPA (or the FDCPA does not apply to them because they are an original creditor, or any other reason), the caller must still comply with the TCPA or risk substantial liability.
Mr. Petersen urges you to consult with a lawyer who is licensed to practice law in your state before you promise to pay any of the debt or pay even a penny. You may have a complete defense to the debt (i.e., the statute of limitations) but loose it by promising to pay or paying any money towards the debt.
Unless the debt involves a debt to pay the United States government or its agencies, the applicable statute of limitations depends upon state law. That means the type of limitations statute to apply (e.g., written vs. oral contract, store account, U.C.C. goods, mortgage obligations, etc.) is determined by state law. When the statute of limitations commences (starts the “clock” running) depends upon state law and sometimes even the language of the contract upon which the obligation arose. Tolling — when the shot clock is not running — depends upon state law and the bases for tolling vary widely depending upon which state.
If a debt collector (including an original creditor’s attorney) sues or threatens to sue to collect a time barred debt — that would violate the Fair Debt Collection Practices Act. In Florida, it would also violate the Florida Consumer Collection Practices Act (the “FCCPA”) and, unlike the FDCPA, the FCCPA also governs collection practices by original creditors as well as debt collectors. Both the FDCPA and FCCPA provide that prevailing consumers are entitled to reasonable attorneys’ fees and costs. The bottom line is that consumers can find an experienced FDCPA attorney no matter which state they reside in. Mr. Petersen will confer with Florida residents about the statute of limitations.
PUBLIC SERVICE ANNOUNCEMENT : CONSULT WITH AN ATTORNEY IF YOU BELIEVE THE DEBT IS TIME BARRED
Do NOT rely on the charts on the internet, all of the charts contain some errors and/or require the reader to guess which statutes of limitations may apply in to a claim in their state. Nor do these “resources” provide the applicable case law and the case law is critical in many of the “fine line” tests that the courts have established in drawing the limits of various statutes of limitations. Many (if not most) FDCPA attorneys would gladly provide a brief consultation — probably for free — if anyone is threatening to sue on an old debt.
ARE YOU RECEIVING CALLS ON YOUR CELL PHONE ABOUT TIME BARRED DEBTS?
Some consumer receive calls from debt collectors attempting to collect debts that are “junk debts” — the debt is not only time barred by the statute of limitations — it’s so old that the debt is obsolete for credit reporting purposes. (The Fair Credit Reporting Act (“FCRA”) provides that debts which are over seven years past the charge off date are “obsolete” and should not appear on the consumers credit report subject to several exceptions.)
When accounts are so old that they are obsolete, some people can remember that they did not provide the creditor their cell phone number because the consumer did not even have a cell phone when they applied for credit. These people do not need to revoke any consent to call a cell phone if they are certain that they never provided any consent.
Where the called party may have provided the original creditor their cell phone number they would have provided “prior express consent” for the creditor and any assigns of the account (e.g., a debt collector) to call you on their cell phone using an Automated Telephone Dialing System (“ATDS”) or pre-recorded or artificial voices to introduce their call or in your voicemail. In other words, the caller would be able to raise a complete defense to a TCPA case. Fortunately, most courts allow people to revoke consent to be robo-called.
In Florida (as in many other but not all states), a cell phone user can revoke their prior express consent. In Florida (and in many other but not all states), a cell phone user can revoke their consent verbally. (In a few states, such revocation must be in writing.)
Other (usually young people) never had a landline so they assume they probably provided their cell phone number when the applied for credit. People who provided their cell phone number to the original creditor must revoke their consent to call their cell phone or the caller is not violating the TCPA. If a borrower provided their cell phone number to the bank when they applied for the credit card, auto loan, mortgage, etc. — the creditor or debt collector will have a complete defense in the TCPA case although they have the burden of proving that the borrower provided their cell phone number.
People who had both a cell phone and a landline often can not remember whether they provided their cell phone number to the original creditor. The “best practice” is for people who can not remember to revoke any consent they may have given.
A cell phone user who no longer wishes to receive telephone calls about their should keep their revocation unconditional and unequivocal :
“You’re calling my cell phone. Stop calling”
Document the telephone conversations and calls If you are a Florida resident and are receiving cell phone calls, take thorough notes of the conversations especially the exact words you used to tell the caller that they called your cell phone and to “Stop Calling”
If the caller stops calling you on your cell phone, then you the peace and quiet that the TCPA provides. If the calls continue and the caller is using an ATDS or prerecorded voice, then the caller is probably violating your rights under the TCPA. Plaintiffs who win in their TCPA cases are entitled to an amount of at least $ 500 per call and, if the violation is willful, up to $ 1,500 per call.
START PROTECTING YOUR PRIVACY TODAY
Hopefully, the information in this site assures you that you do NOT have to continue to tolerate unwelcome telephone calls which you are receiving. Mr. Petersen looks forward to learning more about your potential case and discussing how he can help you enforce your rights.
To get started towards enjoying your privacy again, call or contact Don Petersen today.
CALL DONALD E. PETERSEN AT 407 – 648 – 9050
Or, provide a brief description of you potential case and along with your contact information for a free case evaluation.
(c) 2017 Donald E. Petersen