Judge Grants MTD in FDCPA Class Action Over SOL Disclosure in Letter

A District Court judge in New Jersey has granted a defendant’s motion to dismiss a Fair Debt Collection Practices Act class-action related to the statute of limitations disclosure in a collection letter, affirming that the disclosure made by the defendant is one that has already been ruled on by other judges in and out of The Garden State to not violate the FDCPA. Full credit to the plaintiff, though, for pointing out that there is nothing to stop a creditor from filing a lawsuit to collect a debt for which the statute of limitations has expired and that it must be used as an affirmative defense by the party being sued. The ruling is helpful because it reinforces that the specific disclosure used in this case has now been ruled yet again to not violate the FDCPA.

A copy of the ruling in the case of Morales v. Commonwealth Financial Systems can be accessed by clicking here.

The plaintiff received a collection letter from the defendant that included the following disclosure:

The law limits how long you can be sued on a debt. Because of the age of your debt, the creditor cannot sue you for it. In many circumstances, you can renew the debt and start the time period for the filing of a lawsuit against you if you take specific actions such as making certain payments on the debt or making a written promise to pay. You should determine the effect of any actions you take with respect to this debt.

The plaintiff filed suit, alleging the disclosure violated Sections 1692e, 1692e(2)(A), 1692e(5), and 1692e(10) of the FDCPA and sought to include anyone else who received a letter from the defendant with a similar disclosure. The plaintiff claimed the disclosure was illegal because she could, in fact, be sued for her debt — the statute of limitations is an affirmative defense — and that the disclosure was misleading because in New Jersey, partial payment alone is not enough to restart the statute of limitations. But Judge Evelyn Padin of the District Court for the District of New Jersey did not have to look far to find other cases that have ruled on the exact same language used by the defendant.

A case in New Jersey against a different defendant, but one in which the exact same disclosure was used, was found to not violate the FDCPA because any misstatement in state law did not rise “to the level of an actionable FDCPA violation.” As well, the use of generic language, such as “specific actions such as making certain payment” and “can renew the debt and restart the time period for the filing of a lawsuit against you,” especially when followed by the statement “[y]ou should determine the effect of any actions you take with respect to this debt,” would “not possibly have affected the least sophisticated debtor’s ability to make intelligent decisions.”

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