17.5.2.4 Timing Considerations

The FDCPA has a one-year limitations period,¹⁴² so a consumer must act quickly in bringing any follow-up litigation, particularly when the one year period begins to run early in the collection action. On the other hand, it is dangerous to bring an affirmative FDCPA federal court action while the state court collection action is still pending. A natural response by the federal judge is to defer to the state court, and the state court may view with disfavor the consumer’s end-around action in federal court.

As described in an earlier chapter,¹⁴³ there are also tactical reasons to not bring FDCPA claims while the state court collection action is pending, but instead to let the collector’s suit run its normal course. The indiscriminate and routine nature of the misconduct and resulting violations committed by debt buyers helps establish a later-filed FDCPA case.

Filing the separate federal action while the state case is continuing disrupts that flow. A pending derivative federal FDCPA suit imbues the state collection case with an exceptional significance that insures that the collector will give it very careful and special treatment that can only strengthen its collection suit and weaken the consumer’s FDCPA case. This effect can be particularly dramatic when the federal court case defendant is the state court case collection attorney.

If the one-year limitations period makes a follow-up FDCPA claim impossible, then it may be possible to bring other claims that generally have longer limitations periods. UDAP statutes typically have limitation periods of two years or more,¹⁴⁴ as will most tort claims. Another approach is to file in federal court within the limitations period but not serve the complaint on the defendant until as many as four months afterwards.¹⁴⁵