+ Reply to Thread
Page 1 of 2 12 LastLast
Results 1 to 15 of 18
  1. #1
    RW1953 is offline Junior Member
    Join Date
    May 2007
    Location
    Virginia
    Posts
    19

    Arrow Cell Phone Statute Limitation

    What is the name of your state (only U.S. law)? Virginia- Ntelos has contracted a third party debt collector to wipe out old debts, mine being from 2004. The woman from a "law firm" said that there is NO SOL for cell phone bills, and that even though I remember nothing about the phone number or have retained any notes, I can only go by what she tells me. The company was supposed to have transferred my son's phone over to a military plan and keep it on hold until he finished serving in Afghanistan, however they charged me an early term fee PLUS charged $.65 a minute for overages, even though I don't remember getting a bill after speaking with a supervisor who said he would delete the charges. She did send me copies of the bills, they look vaguely familiar but still, how can they come after you SIX YEARS LATER???? Is that even legal?What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?
  2. #2
    justalayman is offline Senior Member
    Join Date
    Nov 2005
    Location
    in the ether
    Posts
    33,923
    they can come after you until the end of time. If sued, and you believe the statute of limitations is a valid defense to the claim, you must present it in a response to the complaint.

    so, you can do any of several things;

    If you do not believe the bill is yours, tell them you aren't paying it. They MUST stop contacting you (until such time they notify you you are being sued)

    send a cease and desist letter, does pretty much the same thing as the first action



    ignore them

    pay them

    attempt to negotiate with them
  3. #3
    RW1953 is offline Junior Member
    Join Date
    May 2007
    Location
    Virginia
    Posts
    19
    So you are saying there is no statute of limitation on cell phone bills? I was under the impression that there was a federal law and that states can add or modify their own law.

    If this is true, it's very disturbing. Thank you for your prompt reply.
  4. #4
    justalayman is offline Senior Member
    Join Date
    Nov 2005
    Location
    in the ether
    Posts
    33,923
    there is no statute of limitation preventing them from attempting to collect the bill outside of court. Yes, there is an SoL, that if properly presented, would prevent them from obtaining a judgment should they sue you.

    I have not researched it well but it would either be 3 to 6 years depending on how Virginia classifies such a contract. I am not sure how this would be classified.

    You also need to refer to the contract as some will insert some other state as their laws being applicable.

    If they have not sued you, then the SoL is irrelevant other than if you should make a promise to pay in writing, the new date for the SoL starts upon your signing of such a promise.


    If it has exceeded 6 years, it would appear to be beyond any statute of limitations and as such, if sued, you would respond with a defense the creditor is barred from obtaining a judgement due to the statute of limitations having expired.
  5. #5
    davew128 is offline Senior Member
    Join Date
    Nov 2007
    Posts
    4,897
    Quote Originally Posted by justalayman View Post
    there is no statute of limitation preventing them from attempting to collect the bill outside of court. Yes, there is an SoL, that if properly presented, would prevent them from obtaining a judgment should they sue you.

    I have not researched it well but it would either be 3 to 6 years depending on how Virginia classifies such a contract. I am not sure how this would be classified.
    I don't have the citation in front of me but I know for a fact that FEDERAL law limits actions on telephone accounts to 2 years. I see no reason why a cellular telephone would not fall under that.
  6. #6
    Zigner is offline Senior Member
    Join Date
    Jan 2005
    Location
    California
    Posts
    53,243
    Quote Originally Posted by davew128 View Post
    I don't have the citation in front of me but I know for a fact that FEDERAL law limits actions on telephone accounts to 2 years. I see no reason why a cellular telephone would not fall under that.


    Because, the SoL does NOT prevent somebody from attempting to collect on a debt. SoL is a DEFENSE that must be raised in COURT (or, used in the pre-court "negotiations")
  7. #7
    justalayman is offline Senior Member
    Join Date
    Nov 2005
    Location
    in the ether
    Posts
    33,923
    Quote Originally Posted by davew128 View Post
    I don't have the citation in front of me but I know for a fact that FEDERAL law limits actions on telephone accounts to 2 years. I see no reason why a cellular telephone would not fall under that.
    and please find that for us, would you? I am quite curious and have had no luck finding it myself.
  8. #8
    davew128 is offline Senior Member
    Join Date
    Nov 2007
    Posts
    4,897
    Quote Originally Posted by Zigner View Post


    Because, the SoL does NOT prevent somebody from attempting to collect on a debt. SoL is a DEFENSE that must be raised in COURT (or, used in the pre-court "negotiations")
    Nobody had said otherwise but thanks for the reminder.
  9. #9
    davew128 is offline Senior Member
    Join Date
    Nov 2007
    Posts
    4,897
    Quote Originally Posted by justalayman View Post
    and please find that for us, would you? I am quite curious and have had no luck finding it myself.
    US Code Title 47 Telegraphs, Telephones & Radiotelegraphs, Chapter 5 Wire or Radio Communication, Subchapter IV Procedural and Administrative Provisions, Subsection 415 Limitationss of Actions.

    (a) Recovery of charges by carrier
    All actions at law by carriers for recovery of their lawful charges, or any part thereof, shall be begun within two years from the time the cause of action accrues, and not after.

    [url=http://www.law.cornell.edu/uscode/47/usc_sec_47_00000415----000-.html]United States Code: Title 47,415. Limitations of actions | LII / Legal Information Institute[/url]
  10. #10
    justalayman is offline Senior Member
    Join Date
    Nov 2005
    Location
    in the ether
    Posts
    33,923
    please read this dave and then tell me if your claim is still true (1 of several posts):

    ----------------------------------------------------------------------------------
    NEMESIO CASTRO, on behalf of himself and all others similarly situated, Plaintiff, v. COLLECTO, INC. dba COLLECTION COMPANY OF AMERICA, and U.S. ASSET MANAGEMENT INC., Defendants.

    EP-08-CA-215-FM

    UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, EL PASO DIVISION

    2009 U.S. Dist. LEXIS 99703


    October 27, 2009, Decided
    October 27, 2009, Filed

    COUNSEL: [*1] For Nemesio Castro, on behalf of himself and all others similarly situated, Plaintiff: Cathleen M. Combs, LEAD ATTORNEY, Edelman Combs Latturner & Goodwin, Chicago, IL; James O. Latturner, LEAD ATTORNEY, Edelman, Combs, Latturner & Goodwin, LLC., Chicago, IL; Scott Alan Vogelmeier, LEAD ATTORNEY, Law Office of Scott A. Vogelmeier, El Paso, TX.

    For Collecto, Inc., doing business as Collection Company of America, US Asset Management Inc., Defendants: Keith Wier, LEAD ATTORNEY, Bush & Ramirez, LLC, Houston, TX.

    JUDGES: FRANK MONTALVO, UNITED STATES DISTRICT JUDGE.

    OPINION BY: FRANK MONTALVO

    OPINION

    MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS THE COMPLAINT OR, ALTERNATIVELY, FOR JUDGMENT ON THE PLEADINGS AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

    On this date, the Court considered Collecto, Inc. dba Collection Company of America ("Collecto"), and U.S. Asset Management Inc.'s ("U.S. Asset") (collectively, "Defendants") "Defendants' Motion to Dismiss the Complaint or, Alternatively, for Judgment on the Pleadings" ("Motion to Dismiss") [Rec. No. 61], filed June 18, 2009; Defendants' "Memorandum in Support of Defendants' Motion to Dismiss the Complaint or, Alternatively, for Judgment [*2] on the Pleadings" ("Memorandum in Support of Motion to Dismiss") [Rec. No. 61-4], filed June 18, 2009; Nemesio Castro's ("Plaintiff") "Plaintiff's Response in Opposition to Defendants' Motion to Dismiss the Complaint or, Alternatively for Judgment on the Pleadings" ("Response Opposing Motion to Dismiss") [Rec. No. 65], filed June 29, 2009; Defendants' "Reply Memorandum in Support of Defendants' Motion to Dismiss the Complaint, or Alternatively for Judgment on the Pleadings" ("Reply in Support of Motion to Dismiss") [Rec. No. 73], filed July 10, 2009; "Plaintiff's Motion for Partial Summary Judgment as to Liability" ("Motion for Partial Summary Judgment") [Rec. No. 57], filed June 16, 2009; Plaintiff's "Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment as to Liability" [Rec. No. 57-2], filed June 16, 2009; "Defendants' Response in Opposition to Plaintiff's Motion for Partial Summary Judgment" ("Response Opposing Partial Summary Judgment") [Rec. No. 66], filed June 29, 2009; and "Plaintiff's Reply in Support of Partial Summary Judgment as to Liability" ("Reply in Support of Partial Summary Judgment") [Rec. No. 69], filed July 10, 2009. Based upon the parties' briefs, [*3] arguments, and the law, the Court will grant Defendants' Motion to Dismiss and deny Plaintiff's Motion for Partial Summary Judgment.

    I. BACKGROUND

    A. Procedural History
    On June 18, 2008, Plaintiff filed a class action lawsuit against Defendants, alleging violations of the Federal Debt Collection Practices Act ("FDPCA"), 15 U.S.C. 1692 et seq., and the Texas Finance Code 392.304. In answer, Defendants denied any liability and asserted numerous defenses, including good faith. On March 4, 2009, the Court certified the class, defining it as

    (a) all individuals with Texas addresses (b) who were sent a letter in the form represented by Exhibit A to Plaintiff's Complaint, (c) seeking to collect a cellular telephone debt (d) which became delinquent more than 2 years prior to the sending of the letter in the form represented by Exhibit A to Plaintiff's Complaint, (e) which letter was sent between June 16, 2007, and July 6, 2008.

    On June 19, 2009, the Court approved the form of Notice to be sent to putative class members [Rec. No. 63]. The Court continued the trial setting and stayed ruling on any dispositive motions until after July 27, 2009, the date on which putative class members were required [*4] to give notice as to whether they wished to be excluded from the certified class. The Court now addresses Defendants' Motion to Dismiss and Plaintiff's Motion for Summary Judgment.
  11. #11
    justalayman is offline Senior Member
    Join Date
    Nov 2005
    Location
    in the ether
    Posts
    33,923
    ah, forget it. Here is the case:

    Castro v. Collecto, et. al., U.S. Dist. Ct., W. D. TX, El Paso Div., 2009

    here is the important part:

    A. Defendants' Motion to Dismiss

    Section 415 states: "All actions at law by carriers for recovery of their lawful charges, or any part thereof, shall be be-gun within two years from the time the cause of action accrues, and not after." 66 Plaintiff contends the section 415 limitations period applies to his Sprint debt because it preempts any state statute of limitations period. Plaintiff explains any attempt to collect the Sprint debt is time-barred because more than two years had passed since the debt was charged off, and hence, Defendants committed an FDPCA violation. Defendants, on the other hand, argue section 415 does not apply because section 415 does not preempt its state action to collect the debt, and thus, Texas's four-year statute of limitations applies.
    ----------------------------------------------------------------------------------
    66 Communications Act of 1934, Pub. L. 73-416, 415(a), 48 Stat. 1064, 1099,, amended by Act of Nov. 30, 1974, Pub. L. 93-507, 88 Stat. 1577, 1577-78 (codified as amended at 47 U.S.C. 415(a)).
    ----------------------------------------------------------------------------------
    Necessarily, determining any potential preemptive effect of section 415 [*30] begins with an inquiry into congressional intent, to include a review of the statutory structure of the FCA and the correlative legislative history. The statutory language and scheme of the FCA, as well as its legislative history demonstrate an evolution in communications regulation from a uniformly regulated industry to a deregulated, free market industry. That is, in 1934, when Congress enacted the FCA, Congress primarily intended to universalize access to communication services through a uniform rate regulation process overseen by the FCC. As communications services grew increasingly complex, congressional intent shifted to incentivizing the creation of new communications technologies through a free market regime of rate setting, while still maintaining universal access to communications services as a goal. Such a shift evinces that Congress did not intend section 415 to continue to apply to CMRS providers after Congress amended the FCA in the 1990s. This interpretation of the statutory language, scheme, and the corresponding legislative history is bolstered by case law, which indicates the subsequent amendments of the FCA were meant to deregulate CMRS providers and preserve state [*31] law remedies. It is further supported by the FCC's interpretation of the FCA, which is entitled to respect, if not deference. 67 Accordingly, as the following historical analysis reveals, section 415 no longer applies to CMRS providers.
    So, tell me, what would Denny Crane do?
    Last edited by justalayman; 09-20-2010 at 07:09 PM.
  12. #12
    davew128 is offline Senior Member
    Join Date
    Nov 2007
    Posts
    4,897
    Quote Originally Posted by justalayman View Post
    So, tell me, what would Denny Crane do?
    Buy a few congressman and have them update the law and then shout at them about mad cow.

    At face value, off the cuff I don't like this decision and I should note its not precedential and in fact it would only be of value in having another court establish judicial notice of the decision. I will look at the entire case later tonight and the relevant FCC opinion and let you know MY opinion. Off the cuff though without reading all the background, I find it difficult to reconcile how this section can not be applicable to CMRS when the entire title in the USC is devoted to telephone AND wireless communication. CMRS not so coincidentally happens to be both.

    Was this by chance appealed?
  13. #13
    justalayman is offline Senior Member
    Join Date
    Nov 2005
    Location
    in the ether
    Posts
    33,923
    Quote Originally Posted by davew128 View Post
    Buy a few congressman and have them update the law and then shout at them about mad cow.

    At face value, off the cuff I don't like this decision and I should note its not precedential and in fact it would only be of value in having another court establish judicial notice of the decision. I will look at the entire case later tonight and the relevant FCC opinion and let you know MY opinion. Off the cuff though without reading all the background, I find it difficult to reconcile how this section can not be applicable to CMRS when the entire title in the USC is devoted to telephone AND wireless communication. CMRS not so coincidentally happens to be both.

    Was this by chance appealed?
    that was the appeal I believe.

    just keep "tariffs" in mind. and "lawful charges"

    that appears to be the operative terms.

    from what I have been reading, the application of the federal SoL is accepted in some areas and not so in others (as seen). It appears to currently be a hot topic and apparently there is no definitive law yet that would be acceptable nationwide.

    ignore the comment about the appeal. I will have to look. If I remember correctly, this came about because the actual case was appealed but not sure.
    Last edited by justalayman; 09-20-2010 at 08:00 PM.
  14. #14
    davew128 is offline Senior Member
    Join Date
    Nov 2007
    Posts
    4,897
    Well the case was the Western District of Texas. Noteworthy but not controlling. My biggest problem with the abstract of the opinion is the reading into congressional intent. Congressional intent should only be considered when there is ambiguity or vagueness in the law.

    A similar analogy would be the cases in 2006 all decided against the IRS by several different circuit courts of appeal. The issue was the telephone excise tax being collected from carriers for bundled telephone service. Every single appeals court looked at black letter law and said the tax was only applicable to long distance service and that bundled service wasn't long distance service.

    Obviously the issue here is different, but if congress wants this law to not apply to cell carriers, it can change the law to say so. Otherwise a black letter reading of the statute should hold.
  15. #15
    RW1953 is offline Junior Member
    Join Date
    May 2007
    Location
    Virginia
    Posts
    19
    Very nicely done, folks.

    RE: Contract signed....they would not provide me with one, and I do remember that I never signed one to begin with.

    From [url=http://tinyurl.com/23yvefs]Old cell phone bill - Credit and Debt Problems Forums[/url] Old cell phone bill - Credit and Debt Problems Forums

    SOL on any phone bill is 2 years by Federal Law

    47 U.S.C. Section 415
    415. Limitations of actions
    (a) Recovery of charges by carrier
    All actions at law by carriers for recovery of their lawful charges, or any part thereof, shall be begun within two years from the time the cause of action accrues, and not after.


    The reason this debt collector is pursuing this is because in her words, Ntelos made poor choices in previous debt collectors, they did not do their appointed jobs and were let go by the company. This new collector, Federal Credit Corp has been very professional, although I feel they are incorrect in stating they have no SoL in this matter, and frankly it isn't MY problem Ntelos made bad collection decisions.

    .

Similar Threads

  1. Replies: 1
    Last Post: 11-13-2011, 11:50 AM
  2. cell phones and cell phone bill reimbursement questions
    By rkr_girl98 in forum Other Government & Administrative Law Matters
    Replies: 5
    Last Post: 05-09-2011, 09:17 AM
  3. Co-signed for cell phone,owner didnt pay phone bill....
    By RW2 in forum Small Claims Courts
    Replies: 1
    Last Post: 01-31-2006, 06:03 PM
  4. Replies: 1
    Last Post: 06-10-2005, 12:27 PM
  5. Replies: 6
    Last Post: 02-17-2004, 09:44 AM

Tags for this Thread

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  

© 1995-2012 Advice Company, All Rights Reserved

FreeAdvice® has been providing millions of consumers with outstanding advice, free, since 1995. While not a substitute for personal advice from a licensed professional, it is available AS IS, subject to our Disclaimer and Terms & Conditions Of Use.