If suit has not been filed and you believe the debt is past the statute of Limitations (SOL) I would do one of 2 things.
First, you could choose to have no contact with them and (if) they ever file suit, be sure to plead SOL as an affirmative defense. Simply because the SOL has expired does not mean you cannot still be sued. You must respond if suit is filed. But if suit has not been filed, you are under no obligation to speak or communicate with the creditor.
In the alternative, you could write to them and tell them that their actions violate the FDCPA by threatening to sue on a debt they know is time barred. I trust this may scare them.
Hope this helps
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Many consumer rights attorneys offer free consultations, you might take advantage of that opportunity. If your validation letter did not already have cease and desist language, send another letter (via certified mail) disputing the debt and instructing them to not engage in any debt collection communications. Keep a journal of each time they contact you after that letter. If they take any measures toward impairing your credit rating, you should notify the major reporting services that the debt is disputed and not validated despite a request to do so.
You have a few enforcement options if they debt collector persists, you can try filing a civil suit or you can contact the Federal Trade Commission and file a complaint alleging a violation of the FDCPA and contacting the attorney general’s office alleging a violation of Pennsylvania’s Fair Credit Extension uniformity Act.
If you get sued on this deb, then definitely consult with an attorney. You will likely have a number of defenses including the lack of a validation. With respect to the statute of limitations, keep in mind that most consumer debt has a 4 years statute of limitations and the statute can run from the date of last payment.
Below are some links to AVVO legal guides that might be helpful. Please feel free to contact us with any questions.
Understand the Debt Relief Tools Available To You: http://www.avvo.com/legal-guides/ugc/understand-the-deb-relief-tools-available-to-you
Still More Debt Relief Tools To Know: http://www.avvo.com/legal-guides/ugc/still-more-debt-relief-tools-to-know
Stew Crawford, Jr., Esq.
Crawford Law Firm
A Full Service Law Firm Serving Pennsylvania & New Jersey
Philadelphia Area Office
223 North Monroe Street
Media, Pennsylvania 19063
All information provided in this comment is intended for informational purposes only and does not, by itself, create an attorney client relationship. Without the benefit a personal consultation to exploe all of the facts of your legal problem, the information in this posting may be inaccurate and for that reason it should not be relied upon. If you wish to consult with an attorney, or have any questions concerning this comment, please feel free to contact our offices through any of the above contact sources.
First, the FDCPA does not require a lawyer to write a validation letter. Any consumer debtor can write one. There are no "magic words" required. The debt collector is required to validate on your letter, the same as they are on a lawyer's letter. The failure to validate does not necessarily mean they cannot validate; it only means that they have not yet. The failure to validate means that collection efforts must stop. The law states:
"If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector." 15 USC 1692g
Since collection efforts must stop, you need do nothing. Do not call the collector. DO NOT make a partial payment; this will renew the statute. If the statute is run, the collector may stil sue, but:
1. There is an absolute defense to this debt.
2. There is a viable counterclaim for FDCPA violation, which can get you attorney's fees and damages (nominal $1000 plus special damages).
It is a good idea to retain counsel, but if you don't have money now, you can wait until there is an effort to collect, if it occurs-it may not.
Lawrence S Rubin, Atty.