Friday, April 14, 2017

FYI: 7th Cir Rules Stating Intent Not to Sue in Letter Collecting "Time-Barred" Debt Violates FDCPA Without Proper Disclosures

The U.S. Court of Appeals for the Seventh Circuit recently held that a debt buying company's letter to collect a debt subject to the defense of an expired limitations period violated the federal Fair Debt Collection Practices Act because it failed to disclose that 1) a payment or promise can revive the limitations period; and, 2) the law limits or prohibits the debt collector from suing to collect the debt.


The Court  reached this decision even though the letter stated: "Because of the age of your debt, we will not sue you for it and we will not report it to any credit reporting agency."


A copy of the opinion is available at:  Link to Opinion


Affirming the trial court's ruling in favor of the plaintiff consumer, the Seventh Circuit found the letter to be deceptive because it did not inform the consumer that a payment (or promise to pay) may restart the limitations period.


As a result, the Court reasoned, had the letter's recipient made a payment or promise to pay, he could have been sued to collect the debt, putting the debtor "in a much worse legal position than he would have been in before taking the step."


Because the letter did not disclose the "significant risk of losing the protection of the statute of limitations," the letter was "deceptive as a matter of law."


The Court also found that the letter's statement, "we will not sue you," was deceptive because it gave "the impression" that the debt collector chose not to sue, and not that it is prohibited by law from doing so.


The Seventh Circuit pointed out that the debt collector's verbiage was taken from a "2012 consent decree." Although the decision does not cite to the consent decree, it is believed the court was referring to the 2012 consent decree made between the Federal Trade Commission and Asset Acceptance, LLC.


Under that consent decree, letters sent by Asset Acceptance to collect debt subject to an expired limitations period were required to state: "The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it."


But the letter at issue in this case omitted the first sentence of the disclosure. The Court determined that the omission created a "deliberate ambiguity," concealing from the debtor that law prohibited the collector "from suing to collect this debt or even from threatening to do so."




Ralph T. Wutscher
Maurice Wutscher LLP
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