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Who has the burden to prove statute of limitations in a debt collection case.

West Palm Beach, FL |

I have been sued for a credit card debt which is 5 years old. Last payment I made was 5 years ago. The claims in the lawsuit are Breach of contract and account stated. First, what is the statute of limitations in florida for breach of contract and account stated. Second, who has to burden to prove the statute of limitations has expired. Third, if the burden is on me, how do I prove the burden has expired, if both myself or the Plaintiff cannot produce and account statements from that time.

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Attorney answers 3


Statute of limitations is an affirmative defense. If the plaintiff proves the existence of a debt and that you are the obligor, then you would have to present evidence that proves that the suit was not filed within the applicable statute of limitations.

By responding to your question I do not intend to create, nor does it create an ongoing duty to respond to questions or an attorney-client relationship. My response is intended to be only my educated opinion and it should not be relied upon as legal advice. My response is based upon the facts provided and to the extent additional or different facts exist, my response might be different. I am an attorney is licensed to practice law only in Florida. To the extent that I am responding to a question posed by an individual in a different state, my response is being given to generally respond and the questioner is ALWAYS advised to consult a local attorney for a more specific and definitive answer to the question posed.


If the statute of limitations has run and you are being sued, you should look into hiring an attorney to pursue an FDCPA lawsuit against the law firm that is handling the Plaintiff's case for violating the debt collection laws.

Jeffrey B. Lampert

Jeffrey B. Lampert


Mr. Tejes' response makes an important distinction--a violation of the Fair Debt Collection Practices Act gives rise to a claim against the law firm which filed the law suit, not a counter-claim against the creditor itself. The FDCPA applies to collectors, not creditors. There is an exception to the above--if the creditor bought the account after the account went into default status, then the creditor can be treated as though it were a collector. Also, be aware that leaving the State of Florida stops the clock from ticking. If you incurred the debt here, but then moved to another State to live, or even go on an extended vacation, the time that you were not in Florida is carved out of the Statute period.


I advise you to retain a lawyer who does FDCPA cases. They are free. However, if you want to do it yourself, first ask for a Bill of particulars. Ask it in writing and ask to prove their debt and send their evidence. If you hear from them, examine your receipts statements that they provide and make sure they are yours. If they are not, tell them so in writing ans ask them to dismiss your case. If they blew the Statute of limitations, get yourself a lawyer, you might be able to sue them back for violating the FDCPA, you might be able to recover statutory damages..

This answer is provided by Manuel A. Juarez, Esq., 'El Abogado Hispano de California, and it is of a general context and is not intended to form an attorney client relationship. I am licensed only in California. This information is good only in California and it is not to be taken as legal advice on divorce, family matters, bankruptcy or in any other type of situation. Esta respuesta es del Abogado Hispano Manuel A. Juárez, 510-206-4492. Abogado Hispano de Divorcios, Accidentes, y Bancarrotas de Oakland, Hayward, San Francisco, y California. Estas respuesta son solo para información general y no consisten en consejo legal sobre divorcios, mantención de esposas, mantención de hijos o bancarrotas. Las respuestas son comentarios legales que no forman una relación de abogado y cliente. Soy licenciado solo en el Estado de California.

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