Statute of Limitations (SOL) is a time period after which a debt collector loses the right to sue the debtor or take any legal action against him. Statute of limitations laws vary from state to state, for example in California it is about 4 years while in Rhode Island it is 10 years. In most states it’s between 3 to 6 years. Debts that have passed the statute of limitations are known as “time barred debts”.
Q1. If the statutes of limitations have passed, is the debtor free from debt?
No, the debtor still has the moral obligation to pay. The debt has not disappeared just that the debt collector can no longer force a debtor to pay or sue him in the court.
Q2. If a debt collector contacts a debtor after the Statute of limitations has passed, has he broken a law?
Not necessarily. Let us look at these scenarios.
– A debt collector may have a wrong “Date of Debt” in his system. It is also possible that the debtor has wrongly calculated it and Statute of Limitations have not yet expired. Both parties should clarify this amicably so that there is no confusion. Present the proof if necessary.
– A Debt collector can still try to collect by sending a letter and calling over the phone. The debtor can tell the collector that he has no intention to pay and he cannot be forced to pay since the SOL has passed. The guidelines on statute of limitations varies by each state (and sometimes cities too), a collection agency must be very careful while trying to collect on these time barred debts.
Q3. What are the consequences of not paying the debt after Statute of limitations have passed?
The debt collector can report the bad debt to the credit bureau reporting agencies like Experian, Transunion and Equifax. That unpaid debt will appear on the debtor’s credit history for many years (typically 7 years). This will greatly lower chances of a debtor from taking more loans and sometimes even making it harder for him to get a good job for many years to come.
But wait, debtor may be on the hook for paying taxes on forgiven debt.
There is another consequence of not paying the debt. If the financial institution forgives or writes off a debt which is more than $600, they may send a Form 1099-C to the IRS and a copy to the debtor as well. This is applicable to the principal amount only and interests and other fees cannot be added. IRS will make sure that this amount is added to the debtor’s income. There are some exceptions when this is not applicable like, discharge of debt due to bankruptcy or debtor’s insolvency etc. Since debtor took money and did not pay it back, IRS treats this as an income and demands tax on it. If the debtor claims insolvency then IRS form 982 may apply. Debtor should consult a tax professional to handle this scenario.
Q4. How is the Statute of Limitations date calculated?
First of all let’s understand the “Date of Debt” concept. It is the date when the debtor made some activity on that account. It could be the date when the item was purchased, or when the payment was due, or when the last payment was made or even when the debtor re-agreed to pay the debt ( means the debtor has agreed again to the ownership of the debt). The most recent date is called the “Date of debt” and the SOL is calculated from that date.
A debtor may have agreed to pay in 4 different ways
a) Oral Contract – Debtor agreed to pay orally (ex: an orally recorded phone message)
b) Written Contract – This could be a signed contract or an invoice.
c) Promissory Note – In this the details of repayments are spelled out – Example mortgages or car loans.
d) Open-ended– Here the balance and repayment terms can change- Ex: Credit cards, line of credit etc.
Following are some examples of Statute of Limitations by each state (in number of years).
|State||Written Contract||Oral||Promissory||Open Ended|
A state may alter the Statute of Limitations period, therefore do not rely on the table above. Your collection agency should have the most up to date information on this. A proof of last activity may be a copy of check, credit card statement and other forms of communication that may have happened with the debtor.
Q5. What can Restart the Statute of Limitations?
If a debtor makes even a small payment ( say even $10) after the Statute of Limitations has passed or agrees to make payment under a new arrangement, it can potentially reset the “Date of Debt” again. In other words the Statute of Limitations will reset and the debt collector can sue debtor in the near future.
Q6. Can the old debts be removed from the debtor’s credit report once the Statute of Limitations have passed?
It can be removed only if the debt is inaccurate or legally disputable or has been resolved. Statute of Limitations has nothing to do with credit bureau reporting and affects the credit score for 7 years.
Q7. Why is there a concept of Statute of Limitations after all?
It’s kind of a fairness doctrine. A debtor cannot be harassed all his life for a debt he could not pay. After all even a creditor takes a risk if he does not take the full payment right away. As the debt gets older, circumstances change, documents are lost and important evidence can be misinterpreted. The objective is to encourage diligent collections while evidence is available and fresh. Considering all these factors, the Statute of Limitations came into existence.
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