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“Old debts” and the Statute of Limitations in Florida on consumer debt collections

Posted by Alex McClure | Apr 08, 2018 | 0 Comments

“Old debts” and the Statute of Limitations in Florida on consumer debt collections

When I litigated cases for creditors, it was a rare day when a debtor wouldn't attempt to make some sort of point about the age of the account. They would sometimes claim that they “looked up the law” and found out that a creditor couldn't sue them on a debt that was over 5 years old. They would reckon that they opened the card years ago and hadn't heard from anybody in a while. They would demand that the case be dismissed and that they be compensated for the huge waste of their time.

They were almost always wrong.

While there are several potential applications of the concept of a statute of limitations, this article focuses specifically on the concept as applied to the filing of a lawsuit in Florida over a past due debt.

Understand that the statute of limitations is NOT applicable to non-judicial collection efforts on consumer debts in Florida. A creditor may attempt to collect for many, many years after any applicable statute of limitations has run.

In the context of this article, the statute of limitations is the maximum time limit within which a particular claim may be filed as a lawsuit or other legal action can be taken.

After the time period runs, generally, there is nothing that can be done to enforce the claim through an action in a court of law. Although there are still some nonjudicial remedies potentially available to creditors, almost all of them lack any real “teeth” like a lawsuit would have.

The reasons for statutes of limitations are numerous. Documents, evidence, and witness recollection generally don't age well. As more and more time passes the likelihood that a case will be able to be prosecuted on reliable, fresh evidence diminishes. As a general concept, the law does not favor a party who chooses to simply sit on its rights when it could in fact be prosecuting.

A concept that is closely related to statutes of limitations is the doctrine of laches. It is a common belief that the two terms are synonymous, however, there are significant differences in the application and interpretation of each concept.

Laches is a concept in equity where an amount of time has passed (yet is still within the statute of limitations, generally) that somehow impairs the fair defense of the case. There are numerous theories of defense in mortgage foreclosure cases utilizing laches, however, I have never personally seen a successful laches defense maintained in my ten years of practice.

Section 95.11 Florida Statutes is where the statute of limitations applicable to almost all consumer debts can be found.

  • It provides for a 5 year limitations period on debts founded on a written instrument and for a 4 year period on debts founded otherwise.
  • Mortgage foreclosure deficiencies which are pursued as a separate action fall under a different provision of Florida law. See my blog post on Deficiency Balances, Deficiency Lawsuits, and Deficiency Judgments for some good information on the topic.
  • Regarding civil final judgments in Florida, most remedies available to a judgment creditor are actionable within 20 years. Yes, you read that correctly. 20 years from the date of entry of the judgment.  (Visit my Judgment Defense practice page for more information on Florida civil judgments as the topic can become somewhat complicated depending on the circumstances) MANY consumers incorrectly try to claim a statute of limitations defense to judgment proceedings, believing that after 5 years they are "safe."
For the majority of cases, it is simply a matter of determining the date of the last activity on the account (payment, charge, or credit) and then calculating forward for the applicable time period.

If the lawsuit was filed within this period, then there is not an issue with the statute of limitations. If the lawsuit was filed outside of the applicable time period, a motion to dismiss the claim may be appropriate and can potentially dispose of the entire lawsuit as a statute of limitations defense generally operates as a complete defense to an action. It is also worth noting that there may be an underlying consumer protection law violation if a consumer debt is sued outside of the statute of limitations.

It is important to note that this is an oversimplification of the actual rule. In practice, there are numerous considerations to be taken into account when calculating the statute of limitations time period. There are events and circumstances which toll (suspend) the running of time and there are other practical considerations about pursuing and defending “old” claims anyway.

It is important to note that presenting a statute of limitations defense requires more than just blurting the words out at a hearing or writing it down on a letter you send to the court. Like other defenses and exemptions under Florida law, it must be crafted and presented in a specific manner.

To be effective, a statute of limitations defense must be affirmatively and properly plead in Florida.

Properly plead, to the surprise of most pro-se litigants (And some attorneys) means something VERY specific. This may involve the need to request leave of court (permission) to amend pleadings to conform to the rules. For this and many other reasons, it is advisable that you seek out experienced counsel when you are faced with a lawsuit over an old debt.

Contact us to let me put my years of litigation experience to work defending your rights.  

At the Law Office of Alex McClure, I pride myself on working closely with my clients to provide practical solutions to their consumer debt problems.

I do everything in my power to provide options that my clients didn't even know existed before consulting with me.

The Law Office of Alex McClure provides services in Lake Mary, Sanford, Longwood, Deltona, Deland and all of Seminole, Volusia, Orange, Brevard and Lake Counties. 

About the Author

Alex McClure

I spent nearly 10 years litigating for some of the largest creditors and debt buyers in the consumer credit and finance industry. I now put those skills to use representing the interests of my fellow community members facing the most challenging financial problems of their lives. I exclusively practice consumer credit and finance law which includes bankruptcy, consumer protection law, wage and bank garnishment defense and debt defense litigation.


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Solutions For a Sustainable Future

I make every effort to tailor my services to the individual needs of my clients by approaching their issues with an eye towards both their short and long-term goals. I strive to provide solutions which address their immediate concerns and helps them create a realistic and meaningful path towards long term financial sustainability. I look forward to working with you to develop those solutions and help you successfully navigate your consumer legal issues.