One of the first lines of defense when defending allegations of a statutory violation is the statute of limitations. As a complete bar to a plaintiff’s claims, the statute of limitations is one of the most powerful tools in a defense litigator’s pocket. Recently, the Fourth Circuit joined the Sixth, Eighth, and Tenth Circuits in interpreting the Fair Debt Collections Practices Act’s (FDCPA) statute of limitations to restart after each individual violation of the Act.

Under the FDCPA, claims must be brought “within one year from the date on which the violation occurs.”  15 U.S.C. § 1692k(d). In Bender v. Elmore & Throop, P.C., the Fourth Circuit overturned a lower court’s decision to dismiss plaintiffs’ FDCPA claims based on the lower court’s holding that subsequent violations of the same type were subject to the same statute of limitations applicable to first alleged violation.

In Bender, plaintiffs sued a law firm retained by their homeowner’s association (HOA) for violations of the FDCPA. The Benders allegedly failed to pay HOA fees in 2016. Despite their request that the law firm cease contact, the law firm sent correspondence to the Benders on several occasions from April 2016 through February 2018 in an attempt to collect this alleged debt. The Benders then filed a lawsuit against the firm on April 5, 2018, over one year after the first alleged FDCPA violation occurred in 2016. While the FDCPA clearly states that violations occurring beyond the one-year timeframe are untimely, the lower court held “that later violations of the same type do not trigger a new limitations period under the Act.”

But the Fourth Circuit overturned this district court decision, instead holding that the FDCPA “establishes a separate one-year limitations period for each violation.” The Court explained further, finding that “[t]his interpretation avoids creating a safe harbor for unlawful debt collection activity,” allowing the Benders to assert some FDCPA violations rather than barring their claims entirely.

Over a decade ago, the Sixth Circuit rejected an argument that all FDCPA claims are time-barred when the violations first occurred outside the limitations period. Purnell v. Arrow Fin. Servs., LLC, 303 Fed.Appx. 297, 301-02 & n.3 (6th Cir. 2008). The Eighth and Tenth Circuits later agreed, holding that for purposes of the FDCPA statute of limitations, it simply  “does  not  matter  that  the  debt  collector’s  violation  restates earlier assertions—if the plaintiff sues within one year of the violation, [the suit] is not barred by § 1692k(d).”  Demarais v. Gurstel Chargo, P.A., 869 F.3d 685, 694 (8th  Cir.  2017); see also Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173, 1188 (10th Cir. 2013).

Accordingly, the Fourth Circuit is the latest court of appeals to hold a statute of limitations defense must be evaluated based upon the specific timing of each individual alleged FDCPA violation, regardless of one violation’s relationship to another or whether the same violation happened more than one year before suit was filed.