Small Claims Court

Debt Statute of Limitations in Utah

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Breach of contract statute of limitations

By law, a statute of limitations prohibits collection agencies from suing you for old debts. The limitation period varies for different kinds of debt and can be re-started under certain circumstances so never assume a debt collector is barred from collecting a debt under the statute of limitations simply because the applicable time period has expired. Gather your paperwork, review your payment history, review the contract, and contact an attorney before you make any payments or promises to pay if you think the debt might be too old to enforce in court.

Does a debt statute of limitations prevent debt collectors from suing?

The statute of limitations is an affirmative defense so it does not automatically apply or prevent debt collectors from seeking to collect past due debts. It is raised in court proceedings which will stop the debt collection lawsuit if the court determines that the time frame when the debt collector is allowed to file a lawsuit against you has passed. Then, the court will dismiss the case against you. If you are sued for a delinquent debt, and believe the statute of limitations might prevent the collection agency from suing to collect that debt, you must raise the statute of limitations defense when you file your answer. Because it is an affirmative defense, failing to raise it properly could cause you to lose its protections.

Can debt collectors attempt to collect a time-barred debt?

If the collection agency is not suing you but is merely attempting to collect a debt barred by the statute of limitations, things get more cloudy. Generally, the collectors may attempt to collect time-barred debts. But they can’t threaten to sue or make any deceptive representations in doing so. Threatening to sue you when the debt is time-barred or attempting to deceive you into thinking they can sue you when they can’t are violations of the Fair Debt Collection Practices Act which would enable you to sue them for damages.

For example, in a recent case Seventh Circuit Court of Appeals held that Portfolio Recovery Associates, a debt collection agency, violated the Fair Debt Collection Practices Act for using carefully crafted language in a collection dunning letter that attempted to obscure from the debtor that the statute of limitations prohibited the collector from suing or threatening to sue to collect the debt.

It is also a violation of the Fair Debt Collection Practices Act if the debt collector does anything to try to trick you into renewing the statute of limitations. As discussed below, certain acts on your part can reset the time period but debt collectors may not deceive you into taking any of those actions. Most often this occurs when debt collectors attempt to collect zombie debts that are long past the limitations period that were purchased by the collection agencies for pennies on the dollar.

What is the statute of limitations for debt?

In Utah, there are different limitation periods applicable to debt. Which particular statute of limitations applies depends on the type of debt. Generally, the statute of limitations for debt based on a written agreement is six years. Oral contracts and debts incurred for open store accounts for any goods, wares, or merchandise are enforceable in court for only four years. The longest statute of limitations in Utah for debt is an eight year statute of limitations to enforce a judgment.

There are other statutes of limitations in Utah that may apply in less common situations so please don’t consider this list to be exhaustive. And be careful with judgments because judgments can be renewed every eight years which will restart the eight year limitations period.

Is the account open ended or closed ended?

Whether the account is open ended or closed ended is a critical inquiry to determine which statute of limitations applies. Closed ended debt generally refers to single isolated transactions and will generally be subject to the six year statute of limitations for debts based on written agreements. Open ended debts may fall under the four year period for open store accounts but in many cases may fall under the six year written contracts period of time.

For example, a typical car purchase agreement would fall under the six year statute of limitations because the transaction is based on a written agreement. Conversely, a credit card issued by a retail store that may only be used to make purchases from that store will normally fall under the four year period.

The issue is more confusing when a credit card company issues a credit card based only on an application but never obtains a written agreement. Lower courts generally consider the six year period to apply. That outcome appears to be a fairly obvious misreading of the statute but unfortunately the Utah Supreme Court has never clarified this issue. Until it does, the safe assumption if you are being sued for debt is that the six year statute of limitations will be held to apply in individual cases of credit card debt. If there is any doubt at all and the debt is older than four years, contact an attorney to see if there is any way to argue the four year period applies. This is an issue that needs to be tested in court.

When does the statute of limitations begin to run?

Generally, the statute of limitations for debts based on written contracts begins to run when the first payment was due but not paid. In other words, the period starts when the contract is breached. That date could arguably be extended by applicable grace periods so be careful here if the dates are close. Also keep in mind that circumstances other than failing to make a payment can result in a breach of contract so be aware of whether any other breaches of the contract might have occurred.

For debts that fall under the four year period, the statute of limitations starts running when either the last charge is made or the last payment is received, whichever comes last.

For judgments, the eight year period begins running from the date of the judgment. If the judgment is renewed, the eight year period is also renewed.

Reviving, Waiving, or Extending the Statute of Limitations

There are several ways you can revive, waive, or extend the statute of limitations. Debt collectors violate the Fair Debt Collection Practices Act if they attempt to trick you into doing so but aggressive and abusive collectors and even collection attorneys often do anyway.

Reviving the Statute of Limitations

Making a payment on a time-barred debt will revive, or restart, the statute of limitations. Even a tiny payment will revive the debt. This is why debt collectors often ask for a token payment on old debts. And whether the debt is only a year or two old or way outside the statute of limitations does not matter. Making that token payment restarts the clock.

Making a written promise to pay the debt will also restart the statute of limitations. Again, this is why collectors will ask you for an email or letter confirming your intent to pay a debt even when they don’t demand payment. They know that written promise to pay will revive even the oldest debt.

Acknowledging the debt in writing is yet another way you can revive the statute of limitations on a time-barred debt. This is why you must avoid mainstream credit repair companies because most have no clue that a poorly written credit dispute letter can result in an acknowledgment of the debt and restart the clock.

Waiving the Statue of Limitations

As discussed previously, the statute of limitations is an affirmative defense that is waived if you fail to raise it when you are sued for the debt. This is a good reason to seek legal counsel in debt collection lawsuits. A good attorney will properly preserve and argue this, and other, applicable affirmative defenses.

Extending the Statute of Limitations

Extending the statute of limitations, also referred to as tolling, occurs when a person is no longer subject to the jurisdiction of the Utah courts. Most frequently, this occurs when a person moves out of state for a period of time and then returns. When that occurs, the time when the person was absent and not subject to personal jurisdiction is not included as part of the time limited for the commencement of the action under the statute of limitations.

As discussed above, making a payment on the debt also extends the statutory time period for collections. Because of this, some more aggressive collectors will actually make phantom payments on debt they own in the hopes of extending the statute of limitations. Yes, doing so is a violation of the Fair Debt Collection Practices Act but many don’t get caught as it is sometimes difficult to detect and prove who made the phantom payment.

What should you do if a debt collector attempts to collect a time-barred debt?

If a debt collector is attempting to collect a time-barred debt or a debt you think might be too old to collect, don’t make any payments on the debt and don’t make any promises to pay the debt. Find out if the debt is too old first. Otherwise you will reset the statute of limitations and even the oldest zombie debt will be revived. Check the paperwork and your payment history to see if the debt is too old and don’t be afraid to ask the collector for proof of the debt, the contract, and a payment history if you need copies.

If the collector has sent you letters that seem unclear whether or not they can sue you for the debt or they have threatened to sue on a time-barred debt over the phone, contact a consumer protection attorney right away. You could have a claim against the collector for violating the Fair Debt Collection Practices Act which would entitle you to make the collector pay you damages.

You should also contact an attorney if you are being sued for a time-barred or zombie debt. That way you can be sure your affirmative defenses are preserved and properly asserted and you may be able to seek damages from the debt collector.

No matter what you do, act quickly. The statute of limitations will not automatically stop debt collection for an old debt nor will it protect you in court unless you properly raise the defense. In many of these cases attempting to collect the time-barred debt may violate the Fair Debt Collection Practices Act as well which could allow you to turn the tables and obtain payment from the debt collector.

Suing a Debt Collector for $7500

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When is suing a debt collector for $7500 a bad idea? When you have substantially higher damages of course. Unfortunately, the Consumerist website has posted an article congratulating a consumer for suing a debt collector in small claims court and winning $7500. Keep reading to find out why that $7500 award for suing a debt collector is actually a bad result.

Actual Damages are Available Under the FDCPA

The consumer in this article had actual damages. Under the Fair Debt Collection Practices Act (FDCPA) awards for actual damages are not capped. By suing a debt collector in small claims court she put an artificial limit on her damages of $7500 which was extremely unreasonable under the circumstances. Indeed, the abusive nature of the unfair debt collections suffered by the consumer in the article would have easily exceeded $7500 if she would have filed her case in federal court. By suing a debt collector in small claims court this consumer basically allowed the debt collector to keep a lot of money to which the consumer should have been entitled.

Attorneys Fees Under the FDCPA are Mandatory

Also of concern for this consumer is that under the FDCPA attorneys fees are mandatory if your prove an FDCPA violation occurred. If the consumer in the article had taken her case to federal court the debt collector would have paid her attorneys’ fees. Those fees would have easily exceeded $7500. Essentially, the debt collector would have been forced to pay for the consumer’s attorney; something they did not have to do in small claims court. That factor alone should tip the scales in favor of federal court over small claims court.

Discovery Limits

Another limitation of small claims court is that small claims courts do not allow discovery. Discovery is the process of obtaining information from the other side that helps prove your case. In most, if not all FDCPA cases you will want to conduct discovery. Debt collectors always have telephone records, call recordings, call notes, and other internal documents that support your claims of abusive debt collection conduct. In federal court you can get these documents whereas in small claims courts you can’t.

Appeals

Small claims courts also have a very simple appeals process. That is great news if you lose but terrible if you win. Because debt collectors have a right to appeal they will often use the threat of appealing your victory to negotiate a smaller damage award. You can always refuse but then you have to conduct the trial a second time and risk losing your case. In contrast, suing a debt collector in federal court is highly unlikely to ever be appealed.

Conclusion

There are numerous reasons why a $7500 judgment for the FDCPA case in the article is too low. The consumer should be congratulated for suing a debt collector and holding it accountable for its Fair Debt Collection Practices Act violations but the consumer could have, and should have, received more.

Business Consumer Complaints

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Every year consumers file business consumer complaints in droves. The FTC receives millions of consumer affairs complaints every year. In Utah, the attorney general also receives thousands of similar consumer affairs complaints. Other consumer bureaus receive complaints each year in similar numbers.

The shocking part of this story is not how many consumer complaints are filed each year. No, the shocking part is that almost all of these millions of consumers who file consumer affairs complaints do nothing to actually resolve their complaint. Sure, they asked for a refund from the company who scammed them but filing an FTC complaint, attorney general complaint, or other business consumer complaint is simply a waste of time. These agencies will rarely, if ever, help individual consumers. Consumers should stop wasting time with these business complaints and start helping themselves.

Small Claims Courts

Small claims courts are one excellent way consumers can help themselves to resolve a business consumer complaint. Small claims court is easy and affordable. Most consumers can even represent themselves in a small claim without hiring an attorney. Excellent information on filing a small claim is also readily available online to help. Even the FTC and Utah’s Attorney General would agree that small claims court is an excellent venue for pursuing a consumer affairs complaint.

Consumer Protection Attorneys

For consumers who are uncomfortable filing a small claim court case on their own, consulting with a consumer protection attorney is a good choice. Most will consult for free and handle cases on a contingency basis so consumers pay nothing out of their own pocket. Instead, the company who scammed the consumer pays the bill. A good consumer protection attorney can also generally get a consumer more money to compensate them than a consumer can get on by filing his own consumer complaint. Consumer laws and common-law legal theories exist that attorneys can use to increase awards beyond merely getting a refund. Savvy consumers will at least consult an attorney to discover whether or not they have a legitimate consumer complaint to pursue.

Class Actions

In some consumer complaints a class action lawsuit is the best way to solve the problem. For the individual consumer these cases often yield lower results than individual lawsuits but for consumers as a group and for the class representatives these lawsuits can be very fruitful. In the never-ending pursuit of maximizing profits businesses frequently abuse consumers in small dollar amounts making it impossible or difficult for one consumer to pursue a consumer complaint on his own. As a class representative, however, the consumer serves everyone harmed the deceptive practice and literally changes the world by protecting consumers everywhere from the same abuse.

Conclusion

A savvy consumer will carefully weigh his options before filing any consumer complaint. Whether it is with the FTC, an attorney general, some other consumer bureau or agency, or in court, consumers can get refunds and additional compensation for being a victim of an unfair or deceptive sales practice. Don’t give up. Do it right. Talk to an attorney or research your consumer complaint online but don’t let a company get away with a consumer scam against you.

Keep Debt Collection Lawsuits Out of Small Claims Court

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Debt collection lawsuits can be filed against abusive debt collectors in small claims court in many cases but I recommend against it. You will almost certainly get a lower damages award or settlement by handling your case alone and by filing in small claims court. Instead, hire an attorney who will properly advocate your debt collection lawsuit in federal court where it belongs.

Now I don’t want to discourage you from taking your debt collection lawsuit to small claims court. I really don’t. Indeed I have previously discussed the issue in other consumer blog posts and even explained to you how to do it. The reason for that is simple; many people want to pursue their consumer complaints on their own. They don’t want to hire an attorney and often falsely believe they have to pay for an attorney in debt collection lawsuit cases. The problem is that there are just too many reasons why you should not sue a debt collector in small claims court. My simple advice is to keep debt collection lawsuits out of small claims court. Other authors agree that there are pitfalls in taking debt collection cases to small claims court.

Attorneys’ Fees in Debt Collection Lawsuits

You can get a free lawyer when you sue a debt collection company. That sounds incredible but its true. When you successfully sue a debt collector you are entitled to an award of your attorney’s fees and court costs so good credit attorneys take FDCPA abuse cases on a contingency basis. That means your attorney pays all your courts costs up front for you and takes no fees at all if you lose. If you settle the case or win at trial the attorney will then take a percentage or hourly rate out of your award or settlement for his fees. Essentially, that means the debt collector pays your attorney’s fees and you pay nothing out of your own pocket.

In contrast, when you sue a debt collector in small claims court you generally represent yourself. Obviously, in that case there won’t be any attorney’s fees to award you. Even if you are an attorney you cannot generally get an award of attorney’s fees for work you performed in your own case. In many states you can hire an attorney to represent you in small claims court and in those cases you can get an award of attorney’s fees. Sadly, however, the attorney’s fees will be capped at the statutory maximum; a decidedly bad idea.

Capping attorney’s fees would very harmful to your case because it limits your potential award and your ability to negotiate a higher settlement. It also creates an incentive for the debt collection attorneys to make the case as difficult and time consuming as possible because they know their liability will be limited to the statutory maximum amount no matter how much it actually costs you. Indeed, for this and many other reasons, no credible credit litigation attorney would ever file an FDCPA abuse case in small claims court.

Damages in Debt Collection Lawsuits

Another reason to never sue a collection agency in small claims court is that damages are too low. Considering that the statutory limit in Utah small claims courts is $10,000 that sounds wrong, but hear me out. When you sue a debt collection agency you sue under the Fair Debt Collection Practices Act (FDCPA). It is a federal law meant to allow consumers to hold abusive and deceptive debt collectors accountable for their illegal actions. Under the FDCPA the maximum statutory damages award allowed is only $1,000. That’s it. Unless you have some verifiable actual damages you won’t get more than $1,000.

In many cases, however, consumers have actual damages in addition to statutory damages and those actual damages can easily exceed the limits allowed in small claims courts. It is not uncommon for actual damage awards to be well-above the $10,000.00 mark and many even exceed $100,000.00. The reason actual damage awards can climb fairly high in FDCPA abuse cases is because actual damages often include financial injury that resulted from unfair, abusive, or harassing collection conduct such as wage garnishments, lost wages, or lost credit opportunities and can also include damages for physical and emotional distress arising as a result of the abusive collection.

In small claims court it may be more difficult to prove your actual damages and they will be limited to the maximum statutory cap no matter how much you actually suffered. To maximize your damages and assure that you are seeking damages that are appropriate to your situation you will need an experienced attorney. That is good. An experienced consumer rights litigation attorney can find additional damages where the average consumer, suing in small claims court alone, cannot. For example, actual damages such as anger, headaches, chest pain, panic attacks, feelings of helplessness, and other similar physical and emotional distress caused as a result of the unfair debt collection can be awarded. Lawyers are trained to find areas where consumers have actual damages but do not know they are attributable to the unfair debt collection.

The same is true for punitive damages. Attorneys can often assert additional causes of action in your consumer complaint that raise the possibility of an award of punitive damages against the debt collection agency. Punitive damages are meant to punish the collection agency but are not available in all cases. You will need an attorney to know if they are available in your case. Punitive damages in FDCPA abuse cases can be extremely high in some cases too. In 2015 for example, one jury hit Portfolio Recovery with an $83 million award for harming a consumer. Another court in New Mexico hit The Law Offices of Farrell & Sandlin and Target National Bank with a verdict of $1.26 million for their abuse of a consumer. Obviously those amounts are not typical by any means, but damages in FDCPA lawsuits are frequently higher than the small claims court maximum award amounts.

Settlements in Debt Collection Lawsuits

Most FDCPA cases handled by attorneys settle for more than the statutory maximum amount available in Utah small claims courts. The reason is that experienced attorneys who know the tricks, traps, and value of FDCPA cases. It is highly unlikely that you could get as much on your own as you could hiring an experienced credit attorney.

Discovery in Small Claims Court Debt Collection Lawsuits

Discovery is the process of obtaining information from the opposing side of the case prior to trial so you know what they will rely on to prove their case. In Utah small claims courts some limited exchange of discovery is encouraged but is not mandatory. In other words, it won’t happen in most cases. That can be devastating to your case because most debt collectors will argue that even though they violated the FDCPA and harmed you in their conduct, it doesn’t matter because they only did so as a result of a bona fide error.

The bona fide error defense is commonly used by debt collectors but usually fails when consumers hired experienced attorneys who can conduct discovery properly. Discovery in debt collection lawsuits is a complicated process and it takes time but is almost always better than going to small claims court without knowing anything the debt collector will present to prove their case. The bona fide error defense is, like the debt collectors themselves, a snake in the grass hiding and waiting to attack when the consumer is at his weakest moment.

Time Required to Litigate Small Claim Debt Collection Lawsuits

I don’t mean to discourage you with this discussion. If you plan to sue a debt collector and you want to handle it on your own then by all means consider filing in small claims court. Your case will almost certainly be resolved faster in small claims court even if your award or settlement is lower. Small claims cases usually take only four to six months to resolve but many federal FDCPA cases take longer. It is not unusual for an FDCPA case to take two years or more to fully litigate. The reason is defense attorneys. They are often very stubborn and want to push you to see how far you are willing to take your case regardless of how much more it costs their client to delay. They are usually paid hourly after all.

The good news is that the longer your FDCPA litigation takes the more it should be worth if you have an attorney. Your case value probably won’t increase if you are unrepresented though. The reason for the increase in represented cases is that attorney’s fees increase as time goes by. Trust me, your attorney is working hard in the background even if it feels like nothing is happening.

Conclusion

You really ought to sue in federal court for most FDCPA lawsuits. You will need an attorney in federal court and you will get higher awards for damages as a result. Your attorney will also take the brunt of the stress of litigation. Lawsuits are stressful and virtually guaranteed to result in a few sleepless nights. Let your attorney lay awake planning and strategizing the case. He will and you shouldn’t.

There are also procedural reasons to file your debt collection lawsuit in federal court but that discussion is best held for another day. For now, trust me. Hire a consumer protection attorney with experience in FDCPA litigation and be patient if you want to get a reasonable settlement or award.

How to Sue in Small Claims Court

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Small claims court is often the best option available to enforce your rights against a deceptive or abusive company. Filing fees are much lower than in higher courts and the procedural and evidentiary rules are relatively relaxed and simple. Indeed, the small claims court judges themselves will typically apply the rules appropriately and fairly and will interpret the legal issues necessary to rule in your case. In most cases you will simply tell the judge your side of the story and he will do the rest. The process is designed to be as simple and consumer-friendly as possible.

To start your small claim court case, your first step is to determine which small claim court is most appropriate to hear it. In a contract dispute the appropriate court will be located in the county in which the contract was entered or the work was to be performed. In injury cases, the small claim court used will normally be where the injury occurred. If the case involves a real property dispute the proper court will typically be the county in which the property is located. If you are unsure, consult your state’s rules governing small claims procedure to determine the appropriate venue for your case.

Your next step is to download and complete the following forms from the court’s website:

  • Small Claims Court Complaint (sometimes entitled Affidavit)
  • Summons
  • Military Affidavit

Once the forms are completed, file the Small Claims Complaint or Affidavit and Military Affidavit with the court. You will pay a filing fee at that time and the court will issue the Summons and return it to you.

Your next step is to serve a copy of the Complaint and Summons on the Defendant. Some small claims courts will have a box or shelf where you can place a copy of the Complaint and Summons to be served but, if not, process servers are easy to find online. Once the process server delivers the documents to the Defendant he will notify the court that the Defendant has been served and send you a bill. Pay it quickly, it is money well spent. You cannot serve the Defendant so do not try. A disinterested person of suitable age must serve process and certify under oath and penalty of perjury it has properly served the Defendant. Your case dies if this doesn’t occur properly. In limited circumstances you can serve the Defendant by mail but check your local rules for the exact requirements. Again your small claims court case dies if this is not done correctly.

Your next step is to prepare for trial. Make three copies of all documents on which you plan to rely; one for you, one for the Defendant, and one for the court. Make a checklist of your talking points and important facts but do not waste any time or effort preparing a detailed script. You will not need it.  If you have witnesses make sure they are coming to the trial. If needed, you can have the small claims court issue a subpoena to make them appear but only do so if the witness is openly hostile and you think they probably won’t show up. Seriously, you will almost certainly be sleeping on the couch if you subpoena your spouse.

At trial, simply tell the small claims court judge your story.  Use your checklist to be sure you don’t forget any important facts. The judge will ask you and your witnesses questions and he expects very concise and specific answers. He does not want a long monolog detailing every nuance of your feelings about the situation. The judge only wants the facts important in deciding how to apply the law to your case.  He will know what questions are important and what issues on which to focus. If you think he is missing an important fact or issue tell him what you think he needs to know, but again, keep it brief.

Once he has heard from the parties and witnesses the judge will then make his ruling from the bench.  On rare occasions he will take your case under advisement and issue a ruling in a couple of weeks but doing so is extremely unusual so don’t expect it. If you win your case, the court will provide you with a judgment form. Send a copy to the Defendant by certified mail even if he appeared in court. You want proof he received it. The Defendant will typically have up to 30 days to appeal the small claims court judgment but you can begin collecting on the judgment immediately if you wish.

Now that you know how to take a case to small claims court you can be your own advocate. In many cases where deceptive and fraudulent sales practices are involved, however, you may want to consult with a consumer law attorney to determine whether or not a particular statute can help to maximize your damage award. In consumer law cases statutory damages are frequently higher than your actual damages. It is an important detail you do not want to miss.


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