Debtor Bites Collector Over Stale Debt

The collection law firm had to pay, not the debtor, when they sued a disabled man on a stale debt without facts to validate the claim.

The consumer got an award of actual and punitive damages totaling $311,ooo  from the debt collector under the Fair Debt Collection Practices Act .

The case, McColllough v. Johnson, Rodenburg & Lauinger, held that the law firm proceeded with suit, ignoring evidence that the statute of limitations had passed.

Debt no longer dies a decent death when it gets old.  It gets sold, often again and again, to the financial equivalent of scavengers, and it lives on as zombie debt.

Legally, it should be uncollectible;  but the statute of limitations is an affirmative defense.  That means it isn’t raised in a lawsuit until the defendant files an answer.  The plaintiff doesn’t have to claim that the debt is still collectible.

The debt buyer in the original collection action had purchased the debt from Chase.  It engaged a collection firm to sue on a debt on which there had not been payment since 1999.

When the defendant answered, asserting the statute of limitations, and the debt buyer told its attorney it had no documents to the contrary, the law firm persisted for several months before dismissing the collection action.  The FDCPA suit followed against the law firm, not the debt buyer.

Points worth noting:

  • If the debtor had not filed an answer, the debt buyer would have won.  So, the statute of limitations is not self enforcing.
  • The debt buyer had no documents to support its claim and when pressed, dismissed the collection suit.
  • The law firm was not entitled to rely on its client’s assertions, when information in its own file was to the contrary.

It’s my hope that courts will follow in the footsteps of the McCoullough trial court and award meaningful damages in these cases;  the statutory $1000 is hardly just compensation to the debtor.

But without attorneys who are facile in FDCPA law, the rights of the public fall to the debt buyers.

There’s more

No victory in court without a written answer in the file

The oh-so-cheap weapons of a debt collector

What to do when you’re sued

Image courtesy of TheAlieness GiselaGiardino²³

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