Zimmer, Duncan & Cole

It's All About Timing

This week we have one reader question about bill collectors and one court case about parole eligibility.  They both involve issues of timing.

Our question is from Sylvia G. of Yankton, who asks:  Are there any time limitations about how long a company can collect an old debt?

Thank you for sending me your question, Sylvia.  The answer is yes, there are time limits. 

These limits are called “statutes of limitations”.  The rules are different in each state.  In order to know which state’s rules to look at, we would look back to how and where the original debt was created. 

Sometimes, such as in credit card agreements, the company will tell you which state law they want to apply to the charges you make to your card.  (For example, if the credit card company is from Delaware, you may be required to abide by Delaware’s laws regarding the debts.) 

On the other hand, if the original debt is something like a hospital bill or unpaid rent, we would probably look to the rules of the state where the hospital or your old apartment was located.   

Some states have long windows and some are shorter.  They range from three years on the low end (including North Carolina), to fifteen years on the high end (such as Rhode Island).  South Dakota is in the middle with a six-year window for bad debts. 

Once we know the length of the time window, we can then apply the rule to your situation.  For example, if the debt was created in North Carolina, which has a three-year limit, that  means that a debt collector from there has three years after the date of the debt (or the date of the first time you missed a payment) to start a lawsuit to collect that debt.

Keep in mind that these timing rules are different if the creditor already sued you and won a judgment.  Those judgments take the place of the old debt, and they can often be collected upon for twenty years or more.

Debt collectors are also required to abide by the strict rules in the national Fair Debt Collection Act.  If you suspect that someone is attempting to wrongly collect an old debt, or if you think their methods are suspicious, one simple solution is to tell this to the debt collector.  Don’t accuse them of wrongdoing.  Simply suggest that you have concerns, and that you want their response in writing.  If you’re not satisfied with your answer, or if you’re not comfortable asking these questions, you may want to seek legal advice.   

Remember that every case is unique.  The information I give here is general, and it may not apply to your exact situation.

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In Supreme Court news, the seventh opinion of this year is called State v. Semrad, (2011 S.D. 7).  It involves sentencing and parole issues in a criminal case.

Mr. Semrad was convicted of attempted sexual contact with a child under the age of sixteen in Codington County.  He was sentenced to six years in the penitentiary. 

At Mr. Semrad’s sentencing, the judge incorrectly explained the timeframe in which he would be eligible for parole.  The judge mistakenly told the defendant that he would be eligible for parole after serving 35% of his six-year sentence (which is around two years).  However, since this was Mr. Semrad’s second felony conviction, by law he would potentially be eligible for parole after he had served 60% of his sentence (which would be just over three and a half years). 

The question on appeal was whether the judge’s first, incorrect estimate was binding.   The Supreme Court said the judge’s 35% comment was only an estimate, and not part of his actual sentence.  Therefore, Mr. Semrad would have to serve at least 60% of his sentence, as required by the parole statutes.

You can find the full opinion on the state Supreme Court website, at www.sdjudicial.com. 

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Have a question about the law? In this weekly column, I explain recent court cases and answer your legal questions in plain English. Send an email to dan@zdclaw.com or a letter to “Less Legalese, Please,” 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108.  I will try to answer as many as I can with as little “legal-ese” as possible.

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Daniel K. Brendtro is a trial attorney from Sioux Falls. His firm, Zimmer, Duncan & Cole, LLP, has represented clients statewide since 1948 on all types of cases, including injuries, accidents, criminal defense, and business lawsuits.