Rotkiske v. Klemm: the lawsuit he never saw, and the clock that kept running
Kevin Rotkiske was sued over about $1,200 in credit card debt, and the papers went to an address where he no longer lived. He learned of the default judgment five years later, when he was denied a mortgage. In December 2019 the Supreme Court held that the FDCPA's one-year limitation period starts when the violation occurs, not when you discover it.
A public record, not a client of this firm. Everything on this page comes from the Supreme Court's opinion cited at the end. Because the case was dismissed at the start, the Court assumed the facts in Mr. Rotkiske's complaint were true; no court found them proven. Usher Law Group did not represent anyone in this matter, we publish no results of our own, and nothing here predicts the outcome of any other case.
Kevin Rotkiske stopped paying a credit card with a balance of about $1,200. The card company sent the account to a collection law firm, Klemm & Associates.
In March 2008 the firm sued him. It tried to serve him at an address where he no longer lived, and someone whose description did not match his accepted the papers. The firm withdrew that suit.
In January 2009 it filed again, and a process server went to the same address. Once again, someone other than Rotkiske accepted the papers. He did not answer, because he did not know there was a case. The firm got a default judgment.
He found out in September 2014, when he applied for a mortgage and was turned down because of the judgment.
On June 29, 2015, he sued the firm under the Fair Debt Collection Practices Act. His claim was that the 2009 lawsuit was filed after the state limitation period on the debt had already run, so the firm had no lawful ability to collect it. He also said the firm served the papers in a way designed to make sure he never got them.
What the law says
The FDCPA's limitation period is one sentence. A private action must be brought "within one year from the date on which the violation occurs" (15 U.S.C. § 1692k(d)).
Rotkiske's lawsuit came more than six years after the default judgment. His argument was that the year should run from when he discovered the violation, in 2014, not from when it happened. Many statutes work that way. The Fair Credit Reporting Act does, in part: the earlier of two years after discovery or five years after the violation (§ 1681p). The question was whether the courts should read a discovery rule into the FDCPA.
What the Court did
The federal district court in Pennsylvania dismissed his case as untimely, and the Third Circuit, sitting en banc, unanimously affirmed. On December 10, 2019, the Supreme Court affirmed, eight to one.
Justice Thomas wrote for the Court that the text is unambiguous: the clock starts on the date of the violation. Reading in a discovery rule would add words Congress did not write, and Congress knows how to write a discovery rule when it wants one. As an example, the Court pointed to another federal statute, 12 U.S.C. § 3416, where Congress did write one. Courts, Justice Thomas wrote, may not supply a provision the statute leaves out. A limitation period balances protecting valid claims against barring stale ones, and "it is Congress, not this Court, that balances those interests."
Rotkiske had a second argument: that an equitable, fraud-specific discovery rule should apply because the firm concealed the suit. The Court noted that such a rule has been applied in fraud cases but did not decide whether it applies to the FDCPA. He had not preserved the argument in the court of appeals or raised it in his petition. Justice Sotomayor, concurring, emphasized that the fraud-specific principle is long established. Justice Ginsburg dissented in part: she agreed there is no general discovery rule, but would have held that the clock does not run where the collector's fraud explains the late suit.
The district court had also rejected equitable tolling, finding he was not misled by the firm's conduct. The Supreme Court's holding is narrow and firm: absent an equitable doctrine, one year from the violation.
What it means for you now
Rotkiske is the reason collection lawyers watch the calendar and consumer lawyers ask, first, "When did this happen?" Every FDCPA violation has a date. The page on deadlines lists them side by side for each law.
- Do not wait for a pattern. If a collector threatened you, called your employer, or sued you on an old debt, the year for that act is already running.
- If you have been sued, do not ignore the papers. The answer deadline is short, and the time-barred defense Rotkiske wanted to raise belongs in the answer. Suing or threatening to sue on a time-barred debt now violates Regulation F directly (12 C.F.R. § 1006.26(b)). Read sued by a debt collector.
- If you find an old judgment, ask the court clerk for the file and look at the affidavit of service. Where were you supposedly served, and who took the papers?
- Check the other clocks. State claims run longer: in New York, GBL 349 claims generally three years; in Florida, the FCCPA two. Each separate violation has its own date under § 1692k(d).
The FDCPA requires a collector found liable to pay the consumer's reasonable attorney's fees and costs. See zombie debt for the time-barred rules in New York, New Jersey and Florida.
The pages this story points to
Deadlines
One year, two years, three: every clock that applies, and when it starts.
Read →Zombie debt
Old debts, time-barred suits, and what New York changed in 2022.
Read →Sykes: sewer service
A New York class case about judgments against people never served.
Read →Sources. Rotkiske v. Klemm, 589 U.S. 8 (2019), slip opinion (supremecourt.gov); 15 U.S.C. § 1692k(d); 12 C.F.R. § 1006.26(b).
Common questions
When does the FDCPA's one-year deadline start?
On the date the violation occurs (15 U.S.C. 1692k(d)). Rotkiske held there is no general rule that delays the start until you find out. Each violation has its own date, so a collector that keeps acting unlawfully may start new clocks, but an old violation you learn about late may be out of time.
Is there any exception if the collector hid what it did?
Possibly. The Supreme Court noted that some courts apply an equitable, fraud-based discovery rule, but it did not decide whether that rule applies to the FDCPA, because Rotkiske had not raised it properly in the lower court. Anyone relying on it should raise it early and clearly, with facts showing concealment.
If my FDCPA claim is too old, do I have other options?
Sometimes. A default judgment entered without proper service can be challenged in the court that entered it. State claims have their own deadlines: in New York, GBL 349 claims generally have three years, and in Florida the FCCPA allows two. A lawyer can check which ones are still open.
Tell us what they did.
One conversation with an attorney, in your language. We tell you which laws the collector or the credit bureau broke, which deadline runs first, and what to save this week. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510The FDCPA and the FCRA require a company found liable to pay the consumer’s reasonable attorney’s fees and costs. Our fee arrangement is confirmed in a written retainer before we begin. English, Russian and Spanish in-house; an interpreter for any other language.