New California law prohibits a debt buyer from bringing suit on a claim that is barred by the statute of limitations, effective January 1, 2014. Civil Code § 1788.56.
Up until now, a creditor was free to sue on a debt that was older than the statute of limitations. The burden was on the person sued to claim the protection of the statute.
Too often, the debtor didn’t know that and the collector got a judgment on debt that should have been unenforceable.
No longer, as to purchased, charged-off debt.
Wait, wait, there’s more.
Required information about debt
A debt buyer may not even contact a person about a consumer debt unless the debt buyer has in its possession
- Proof that it is the sole owner of the debt
- Balance of the debt at charge off and a breakdown of charges added since charge off
- Date of default or last payment
- Name, address and account number used by the original creditor
- Name and address of the account debtor from the original creditor’s records
- Name and address of all entities that purchased the debt after charge off
Scope of consumer protection
These new provisions became part of California’s Rosenthal Fair Debt Collection Act. These additions are to be called the Fair Debt Buying Practices Act.
Effective January 1, 2014, they apply to debt bought or sold after that date. At first, you may be left to guess whether a debt buyer calling about old debt is subject to these restrictions.
To be covered by the FDBPA, the debt must be part of a package of charged-off debt. Old debt that slips into a portfolio of largely claims that have not been charged off is not subject to this act.
That mystery term, charged-off, gets a statutory definition:
"Charged-off consumer debt" means a consumer debt that has been removed from a creditor's books as an asset and treated as a loss or expense.
A debt may be charged off of the original creditor’s books and still be legally enforceable, if the statute of limitations hasn’t run.
Courts must demand proof
Another ground breaking provision requires that no judgment be entered, even if the debtor didn’t answer the complaint, unless the collector has supplied a sworn statement as to compliance with the elements of the FDBPA. Civ. Code 1788.60.
The collector must also provide a copy of the contract sued on, authenticated by a sworn statement.
This will be interesting to watch as, often, even the original creditor can’t produce a copy of the contract. Who will be available to the debt buyer to vouch for the contract? And will the courts monitor robo signed affidavits? And impose consequences for lying?
Damages for violation of FDBPA
A debt buyer who violates the statute is liable for actual damages caused by the violation, including the amount of any judgment obtained against the individual; statutory damages of no less than $100 and no more than $1000; and reasonable attorneys fees and the costs of the suit to enforce these rights.
The debt buying trade press forecasts that the California standards will be applied to all portfolios of old debt sold by businesses. No more, they say, of getting just the account debtor’s name, address, Social Security number, balance and account number on a computer disk.
Brave new world
The Fair Debt Buying Practices Act is a worthy step forward in preventing abuse by purchasers of zombie debt.
I’m particularly encouraged by the provision outlawing filing suit on debt that is time barred. I hope to see a like provision applied to debts still in the hands of the original creditor. Otherwise, the application of the statute of limitations are restricted to those individuals savvy enough to file an answer to the suit.