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Barred Debt

If I speak on the phone to a collection agent about a debt, have I waived my state's statute of limitations on the debt?

I stopped making payments on my credit cards in late 2006. It is now early 2011, so the 4 year SOL has passed. Today, I received a call from a local phone number. It was a collection agency. I confirmed my name, mailing address, phone number, and debt. Did I screw myself over for the SOL rule? Or would I have had to acknowledge my debt in writing. If yes, I assume acknowledging debt on one account would not have any effect on my other 10 accounts, correct? I reside in California.

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Highlights

  • Statute of limitations rules for credit card debt are tricky.
  • Under common law, an acknowledgment must be in writing.
  • Consult with your state's statutes to learn your acknowledgment laws.

A statute of limitations, also called a limitation of action, periods of prescription, and prescriptive periods, is the maximum time after an event or occurrence that legal proceedings based on that event or occurrence may begin. States and the federal government set statutes of limitations for civil and criminal actions. Each state legislature wrote dozens of statutes of limitation.

Statute of Limitations on Credit Card Debt

Your question concerns the statute of limitation on debt, which is found a branch of law called civil procedure. You mentioned credit card debt. The statute of limitations one on credit card debt is tricky for three reasons:

  1. States wrote statutes of limitations laws before the invention of credit cards. Some state courts throw credit card debt in the written contracts bin. Others consider credit cards open accounts, which were written with bar tabs and feed store accounts in mind that are customarily settled at the end of the month. Other state courts lump credit cards with spoken/verbal contracts. Each of these often have different statutes of limitation.
  2. The statute of limitations for a debt can be set in the credit card contract with a choice of laws clause. A credit card issuer can write a clause that says something to the effect of, "Our headquarters may be in New York, and you may reside in Ohio, but if a dispute arises from this contract, we agree to use the laws of Delaware." Most judges despise choice of laws clauses, and will make efforts to find reasons to ignore them in favor of their own state laws.
  3. Tolling can also affect a debt’s statute of limitations. Tolling refers to a time-out on the running clock of the SOL. In some jurisdictions, a debtor can take an action that is viewed as preventing reasonable efforts by the creditor to collect on the debt. For example, if a debtor leaves the country for a few years, the court may decide that because the creditor did not have a fair chance to collect, the SOL was not running during the time the debtor was abroad. Rules on tolling vary from state to state, so meet with an experienced attorney to see if it will affect you.

These three reasons make answering the question, “What is the statute of limitations for my credit card debt?” difficult to answer.

Resetting a Statute of Limitations

For debt, the statute of limitations starts either when the debtor last made a payment, or when the payment was due. Once the statute of limitations on a debt is reached, the creditor may use the court system to collect the debt. However, if the debtor/defendant raises the affirmative defense of statute of limitations in a timely manner, the court must dismiss the case. A court will not raise the statute of limitations defense on its own — the court is a neutral referee — the defendant must raise this defense.

A defendant can reset the clock on a statute of limitations back to zero in two ways:

  1. Make a payment
  2. Acknowledge the debt

Under common law, the acknowledgment must be in writing and convey the idea the debtor promises to pay the debt. Not surprisingly, many state legislatures wrote their own version of this rule. Arizona, Florida, New York, and Oregon are four such states I found with acknowledgment of barred action rules in a minute or two using Google’s search engine.

Your Question About Barred Debt

You mentioned California. Under California Code of Civil Procedure § 360.5, "No waiver shall bar a defense to any action that the action was not commenced within the time limited by this title unless the waiver is in writing and signed by the person obligated." This law was enacted in the 1800s, and is well-tested by California courts. In a nutshell, a statute of limitations waiver in California must be in writing and signed by the debtor.

You asked if speaking about the debt to a collection agent acknowledged the debt or waived your right of California’s statute of limitations. California’s law is clear on this matter: Talking to someone about your debt does not create a waiver of your statute of limitations rights.

You asked about your other debt. Assuming for a moment that your waiver was effective, I do not see how acknowledging or waiving your rights on Debt A has any impact on Debt B, Debt C, and so on.

This answer, obviously, applies California law. If you reside in a different state, review your state's statutes and consult with a lawyer who has civil litigation experience to learn how your state legislature and courts answer this question.

I hope this information helps you Find. Learn & Save.

Best,

Bill

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8 Comments

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  • 35x35
    Nov, 2011
    Elk Grove, CA
    Ok so regarding this SOL issue (funny how SOL means such a different thing when I think of it). I have received a notice that a JDB is going to pursue legal action against me for a debit from 2005. SOL for CA is 4 years on a promissory note. (Usually) However they sent me a copy (which I didn't request) of the Esignature version of the note. It has a small clause in it that says "The Holder of this Note may delay or forgo enforcing any of its rights or remedies under this Note without losing them. I hereby, to the extent allowed by law, waive any applicable statute of limitations, presentment, demand for payment, or protest and notice of dishonor." This JDB claims that this waives the SOL. My understanding is that is waives THEIR SOL on filing anything. What's the real deal here? And even if it does waive my SOL is that legal? Also noticed that the annual % of interest as listed on the front of the note is different than what is listed in the body of the note. Ideas?
    0 Votes

    • BA
      Nov, 2011
      Bill
      The legality of the issue can only be determined if you are sued and you choose to use the affirmative defense of statute of limitations. Consult with a local attorney regarding your rights and course of action.
      0 Votes

  • SO
    Jun, 2011
    S.
    Burbank, CA
    I have a law firm collection agency trying to collect money and I have spoken with them. I have told them that I don't currently have a job or any means of income. That being said, I asked them what possible ways of payment can be made, but did not do so in writing. I asked my parents if they could help me out and the only way to do so was if I faxed a letter to the collection attorney noting that I gave permission to my parents to talk to them about "my account." Question is, was that written proof acknowledging that I acknowledge my debt or promised to pay it? They called me today and said they will stop talking to my parents because my parents weren't willing to pay the $5000 debt. I want to use the SOL defense since it's been over 4 years and I understand that I need to send them a debt validation letter. Thanks in advance.
    0 Votes

    • BA
      Jun, 2011
      Bill
      Without seeing the letter you sent the lawyer, it is impossible for me to say with any certainty that you acknowledged responsibility for the debt, and in so doing reset the statute of limitations. Take all of the documents you have regarding this debt to a lawyer in your state who has consumer law or civil litigation experience. He or she will help you devise a strategy to resolve the debt, or use the statute of limitations affirmative defense should the creditor file a lawsuit against you.
      0 Votes

    • SO
      Jun, 2011
      S.
      Burbank, CA
      Thanks for the quick answer, Bill. Here's what I wrote them: "To Whom It May Concern: As requested, I am writing you to authorize my parents, S*** and E*** O, to be able to discuss and work with you on any matters concerning my account. If you have any further questions, please feel free to contact me at the number provided above. Thank you and have a great day." Thoughts?
      0 Votes

    • BA
      Jun, 2011
      Bill
      I do not see an acknowledgment implied or stated in your message. Were this to get in front of a judge, I think he or she would have to bend over backwards to consider this an acknowledgment.
      0 Votes

    • SO
      Jun, 2011
      S.
      Burbank, CA
      Thanks so much Bill! I will send them a debt validation letter ASAP. Have a great day!
      0 Votes

  • AT
    Feb, 2011
    Andrew
    Los Angeles, CA
    Thank you so much, Bill. Your responses answered all my questions. Your site was very helpful and I am so glad I found it. Like many others, I got into debt at a young age, and had no means of paying it back. I wish I had been smarter, but I can't change the past. Obviously, it has hurt many things including my Credit Report/Score. And the debt has been in the back of my mind for 4.5 years now. It's like a huge weight lifted off of my shoulders knowing that even if I get sued, I will likely win by claiming Statute of Limitations. I feel sorry for the people that don't know about this, and just pay these credit collector's. But at least I can now move on with my life :) Thank you, again.
    0 Votes

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