May a judge raise on the court’s own initiative whether a debt collection claim covered by the FDCPA is timely?

Plain-English summary

The Committee considered collection actions that appear untimely or whose complaints do not show timely filing. It limited its answer to actions subject to the Fair Debt Collection Practices Act.

The opinion distinguished an earlier ruling, Opinion 2006-01, which barred a judge from raising a limitations defense for an unrepresented defendant in a local-government parking-ticket claim. Here the Committee viewed timeliness as part of the collector’s burden under the Act rather than a defense raised for a party.

On that reasoning, the Committee said a judge may ask about timeliness on the court’s own initiative and decline to enter judgment if the creditor does not meet that burden.

In practice

The opinion permits a court-initiated timeliness inquiry only after the judge determines that the collection action is subject to the Act.

Common questions

Q: Does this holding cover every time-barred claim?

A: No. The Committee expressly limited it to collection actions subject to the Act.

Q: How did it distinguish its earlier parking-ticket opinion?

A: It treated the Act-related inquiry as part of the collector’s burden, rather than asserting a defendant’s affirmative defense.

Q: May the judge decline judgment?

A: Yes, if the creditor does not meet the burden as the Committee describes it.

Background and rules framework

The opinion applies the then-cited Maryland Code of Judicial Conduct, Canon 2A, and discusses the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, distinguishing Maryland JEC Opinion Request 2006-01.

Citations and references

• Maryland Code of Judicial Conduct, Canon 2A.
• Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692(a), 1692f.
• Maryland JEC Opinion Request 2006-01.
• Kimber v. Federal Financial Corp., 668 F. Supp. 1480 (1987), cited in the opinion.

See also

• Maryland Judicial Ethics Committee opinion index

Source

• Landing page: Maryland Judicial Ethics Committee opinion index
• Original PDF: Opinion 2006-05

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Maryland Judicial Ethics Committee

Opinion Request Number: 2006-05

Date of Issue: October 23, 2006

O Published Opinion G Unpublished Opinion G Unpublished Letter of Advice

Judge May Query Sua Sponte Whether Collection Claim Is Time Barred

Issue: Is it permissible for a judge to query sua sponte whether a collection action is time barred under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (“the Act”)?

Answer: Yes.

Facts: Judges frequently are presented with collection actions brought by debt collectors on which the statute of limitations has expired or on which it is not clear from the complaint that the action is brought within the period of limitations.

Discussion: In Opinion Request No. 2006-01, dated April 10, 2006, the Committee concluded that a judge may not raise sua sponte the defense of statute of limitations on behalf of a pro se defendant against whom a local government seeks judgment for unpaid parking tickets and penalties. The Committee held that, in doing so, a judge would be casting doubt on his or her impartiality in violation of Maryland Code of Judicial Conduct (2005), Canon 2A.
The question now raised concerns collection actions which fall within the Act, and this response is limited to such actions. On occasion, a judge will be presented with such a claim, which appears to be time barred. The judge may be reviewing a complaint seeking judgment on affidavit or in a contested proceeding where the defendant is pro se.
Congress passed the Act upon finding that debt collectors were using “abusive”, “deceptive” and “unfair” practices to collect debts. 15 U.S.C. § 1692(a). It therefore prohibited the use of “unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. The Act is intended to protect the “least sophisticated consumer.” Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1175 (11th Cir. 1985) (adopting interpretation of “deceptive” in Exposition Press, Inc. v. FTC, 295 F.2d 863 (2nd Cir. 1961)). In Kimber v. Federal Financial Corp., 668 F. Supp. 1480 (D.C. Alabama, 1987), the Court held that the filing of a law suit on a debt “that appears to be time-barred, without the debt collector having first determined after a reasonable inquiry that the limitations period has been or should be tolled, is an unfair and unconscionable means of collecting the debt” and therefore violates public policy. 668 F. Supp. at 1487.
By its passage of the Act, Congress articulated a public policy to prevent collection of stale debts from unsophisticated debtors. This places on the debtor creditor the affirmative duty to document compliance with the statute of limitation. Essentially, this is part of the plaintiff’s burden of proof as opposed to raising a defense. Accordingly, after a judge determines that the action is subject to the Act, the judge may query sua Maryland Judicial Ethics Committee Opinion Request Number: 2006-05 Date of Issue: October 23, 2006 O Published Opinion G Unpublished Opinion G Unpublished Letter of Advice Page 2 of 2

sponte the timeliness of the action and decline to enter judgment if the creditor does not meet its burden.

Application: The Judicial Ethics Committee cautions that this opinion is applicable only prospectively and only to the conduct of the requestor described in this opinion, to the extent of your compliance with this opinion. Omission or misstatement of a material fact in the written request for opinion negates reliance on this opinion.
Additionally, this opinion should not be considered to be binding indefinitely.
The passage of time may result in amendment to the applicable law and/or developments in the area of judicial ethics generally or in changes of facts that could affect the conclusion of the Committee. If you engage in a continuing course of conduct, you should keep abreast of developments in the area of judicial ethics and, in the event of a change in that area or a change in facts, submit an updated request to the Committee.