Consumers generally have one year in which to sue a debt collector for violating the Fair Debt Collection Practices Act (FDCPA). Courts are generally strict in enforcing the one-year time limitation known as the "statute of limitations." But alive and kicking to possibly extend that deadline is the doctrine of "equitable tolling" and possibly even the "discovery rule."
Equitable tolling may extend the deadline to when the violation is discovered if the debt collector conceals facts or makes a misrepresentation that would conceal or hinder a consumer's ability to discover the wrong. To benefit from this privilege, the consumer must exercise a minimal degree of diligence in discovering and enforcing her rights.
For example, we saw in Coble v. Cohen & Slamowitz a group of class-action plaintiffs successfully argue an equitable tolling of the statute of limitations during the time period when the law firm was enforcing judgments it had reason to believe were premised on fraudulent affidavits of service.
Along the same lines, we saw the court in Sykes v. Mel Harris also apply the doctrine of equitable tolling to FDCPA claims relating to allegations of "sewer service," a process of falsifying affidavits of service.
But what about the situation where the debt collector files the case in the wrong county (itself a violation of FDCPA § 1692i known as a "venue violation") without such an affirmative act of concealment or implication of fraud? Is the consumer permitted to extend the one-year limitation from when she merely discovered the venue violation?
In other words is there a less-burdensome "discovery rule" in FDCPA actions that would trigger the one-year deadline from when a consumer discovered—or should have discovered using due diligence—the venue violation? Courts seem to be unsettled on this issue. But relying on a 5th Circuit case,
Sema v. Law Office of Joseph Onwuteaka, P.C., a federal court in the 2nd Circuit (where we practice law),
Sam v. Cohen & Slamowitz, LLP, seems to rule that the more relaxed discovery rule should apply in cases where consumers learn they were sued in the wrong county. This rule makes sense. It just wouldn't seem fair to make the unwitting consumer absorb the loss of an improper case filing in a distant forum. The
Sema court opined that the broader phraseology of "bringing an action" versus "filing an action" is broad enough to conclude that Congress did not intend to confine the violative act to the date of filing the complaint alone. This interpretation seems to comport with the rationale of preventing consumers from having to appear in distant courts at any stage.
Sema v. Law Office of Joseph Onwuteaka, P.C., 732 F.3d 440 (5th Cir. 2013).
Sam v. Cohen & Slamowitz, LLP, 2015 WL 114076 at *1 (WDNY, Jan. 8, 2015).