If you have a lawsuit from an old credit card debt, or if you are worried that you might get a lawsuit from an old credit card debt, then you might have questions about the statute of limitations.
What exactly is a statute of limitations? How long is the statute of limitations for a credit card debt? Can I still get sued after the statute of limitations has expired? And what should I do if that happens?
This article will explain what the statute of limitations is, what it means, and what you should do if you get sued by a creditor after the statute of limitations has expired.
The statute of limitations imposes a deadline for a creditor to sue you.
In Texas, the statute of limitations for a creditor to sue you is 4 years from the time you defaulted on the debt.
For example: let’s say you made your last payment on the account on June 15th, 2008, and your account went into default in July, 2008. The creditor would have a deadline of July, 2012 (4 years from the time of the default) to sue you.
You might still get sued even after the statute of limitations has expired.
The statute of limitations operates as a defense to a lawsuit, not as a bar to filing the lawsuit in the first place.
When a creditor goes to file a lawsuit, nobody at the courthouse checks to see if the statute of limitations has expired before accepting the lawsuit. In fact, the court personnel have no way to know whether or not the statute of limitations has expired at the time they accept the lawsuit for filing.
It is the plaintiff’s obligation to know whether or not the statute of limitations has expired and to voluntarily refrain from suing you after that deadline has passed.
If you get sued after the statute of limitations has expired, you need to respond to the lawsuit and properly assert and prove your statute of limitations defense.
This means that you need to file an answer and claim in your answer that the statute of limitations has expired, and then you have to go to court and prove—by testimony and documentation—that you defaulted on the account more than 4 years before the lawsuit was filed.
If you don’t properly claim your defense, you waive it. If you claim your defense and don’t prove it, then you “lose on the merits.”
If they sue you after the statute of limitations has expired and get a judgment against you, the judgment is perfectly valid and enforceable.
If you fail to assert or prove up your statute of limitations defense, the creditor can and likely will get a judgment against you. And the judgment will be valid and enforceable just like any other judgment.
But…
You can sue a creditor under the FDCPA if they file a lawsuit against you after the statute of limitations has expired.
I know what you’re thinking: “This doesn’t make any sense. If it is legal for them to sue me after the statute of limitations has expired and get a judgment against me, then how can I sue them for doing it?”
Well, there are 2 different sets of laws involved.
Texas state law governs the lawsuit. Under Texas state law, the statute of limitations operates as a defense, just like any other defense, and you, the defendant, have to claim it and prove it. If you don’t claim and prove your defense, you either waive it or lose on the merits.
The federal Fair Debt Collection Practices Act (FDCPA) governs all facets of debt collection, including the filing of lawsuits. Under the FDCPA, it is illegal for a debt collector to undertake some legal action that is it not allowed to undertake. FDCPA case law has made it clear that you can sue them for filing a lawsuit against you after the statute of limitations has expired, and you can recover your “actual damages,” which would be any money you actually paid on the judgment, plus any legal fees you had to pay to related to the FDCPA lawsuit.
As always, it is better to err on the side of caution.
If you get a lawsuit, see a debt defense attorney immediately. The fees for credit card lawsuits are very reasonable and are always less than you owe on the debt. Many lawsuits, especially those filed after the statute of limitations has expired can be defeated entirely. If your lawsuit is defeated, you don’t have to pay anything on the debt. And you may even be able to put some money back in your pocket as well.
