Congress; consumer protection; Fair Debt Collection Practices Act; violation
In 1977, Congress enacted the Fair Debt Collection Practices Act (FDCPA) in an effort to provide injured consumers with uniform protection against the systematically abusive practices of the debt collection industry. The FDCPA created a private right of action for victims to sue; however, an individual who wishes to bring a private suit under the FDCPA must do so “within one year from the date on which the violation occurs.” The effectiveness of this private right of action has been unsettled due to the circuit split over the meaning of this provision. For many FDCPA violations, the debt collector might engage in the violative conduct several days, weeks, months, or even years before that conduct actually harms the consumer. Thus, the principal disagreement focuses on when the “violation occurs”: Does it occur when the debt collector engages in the proscribed conduct, or does it occur when that conduct actually harms the consumer? Moreover, if the violation occurs when the debt collector engages in the proscribed act, can a “discovery rule” apply to delay the running of the statute of limitations until the consumer finds out about the violation? This Note explores the various analyses circuit courts apply to determine the date on which an FDCPA violation occurs. Unless federal courts adopt a uniform analysis to determine when an FDCPA violation occurs for the purpose of triggering the running of the statute of limitations, injured consumers will continue to receive inconsistent protection under the statute. This Note argues that in order to promote the FDCPA’s remedial nature, federal courts should adopt the following guidelines to determine the date on which an FDCPA violation occurs: (1) a violation occurs, and a cause of action accrues, when a consumer suffers the kind of harm for which Congress intended to provide a private damages remedy; and (2) where a debt collector fraudulently conceals his or her violative conduct from an injured consumer, the equitable tolling doctrine should apply to toll the running of the FDCPA’s statute of limitations for the duration of the concealment.
One Time to Sue: The Case for a Uniform Statute of Limitations for Consumers to Sue Under the Fair Debt Collection Practices Act,
84 Fordham L. Rev. 1653
Available at: https://ir.lawnet.fordham.edu/flr/vol84/iss4/14