MCM tried to sue me for a very old debt.. Once they found my correct address and served me the debt was 2 years outside statute of limitations. They dropped the case, i'm assuming for lack of actual proof. They have begun to contact me again , but I asked them to send all communication via mail ( not phone).
Can MCM still take me to court again event though now it is almost 3 years outside the FL. SOL statute of limitations?
SOL is a affirmative defense that must be asserted in the law suit. If you fail to assert the affirmative defense it is waived. The Courts do not review a lawsuit to determine if it may or may not be filed, it is the responsibility of the Defendant to challenge the case. Be sure not to pay them anything toward the debt, a payment could revive the debt and erase the statue of limitations. If the creditor get aggressive, or your served with a lawsuit I suggest you seek the help of an attorney right away.
The comments of the other attorneys are all correct and contain good advice. The SOL is only an issue if you are sued. However, the Fair Debt Collection Practices Act requires the creditors to act in good faith. You should tell them that you believe they are outside the SOL and therefor not acting in good faith. As others have said, you can revive the debt if you acknowledge owing the money, under certain circumstances. Your instinct to require them to put everything in writing is also good. Finally, consult a consumer protection lawyer - use find a lawyer feature to locate one.
I would need more information to finalize a legal opinion. Based upon the wording of your question, it appears that you may be beyond the statute of limitations, but there's such thing as "tolling" which basically means that the clock may have stopped running (for Statute of Limitations purposes) if there's an active lawsuit. From a practical standpoint, I would stop speaking with the creditor at all (of course, not make any payments as suggested by other responses), and wait to see they take any action (in court). If so, I sugguest you consult with an attorney at that time.
You are wise to require all communications to be in writing. I suspect that the reason they are contacting you is that they know they will not be suing. If they were going to sue they would.
One of my colleagues specifically referred to "tolling". Certain circumstances stop the SOL clock from ticking--your being out of state, for example, or your concealing yourself. It is unlikely you were out of state for 3 years, but I could see that it is possible.
Is MCM the creditor or an assignee of the original creditor? Or a collection agency? I suspect you are referring to Midland Credit Management which is a buyer of bad debt accounts, in which event, it would violate the Fair Debt Collection Practices Act. There are cases which specifically construe the FDCPA to make it a violation to sue on a time-barred account. The leading case is Kimber v. Federal Financial Corp., 668 F.Supp. 1480 (M.D Ala. 1987).
There is a way to stop the communications--by certified mail send a letter to MCM telling it that you refuse to make payment. Once a consumer makes such a statement, the collector, or creditor which took the debt on assignment when it was in default, has just 3 options, which are shown below, it is 15 USC 1692(c) (c) Ceasing communication
If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except—
(1) to advise the consumer that the debt collector’s further efforts are being terminated;
(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or
(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.
If such notice from the consumer is made by mail, notification shall be complete upon receipt.
PS The first law suit being filed does not "toll" the statute of limitations.
In the State of Florida a debt collector can attempt to sue you on a time barred debt however, that may subject them to being sued under the Fair Debt Collection Practices Act and related statutes. A case brought outside of the statute of limitations ("SOL") will raise an affirmative defense which must be stated in any answer (a legal response to a lawsuit complaint), otherwise it is waived. Remember though, just because the SOL: has passed does not mean that the debt is extinct, it is not. Also, remember that the running of the SOL varies upon numerous factors which are unique to your factual situation. You also have the right to tell MCM to stop communicating with you entirely under the Fair Debt Collection Practices Act ("FDCPA"). My suggestion would be to find a sample cease and desist letter on the web (try the National Association of Consumer Advocate or the National Consumer Law Center for finding possible letter templates to use), send your cease and desist letter certified mail return receipt requested and keep copies of all documentation, including certified mail receipts, etc., for your records. Under law, with minor exceptions, they must cease communicating with you. If they contact you otherwise, you have a lawsuit which you can bring against them.
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