The limitations defense in a debt case: it only works if you plead it

The most common misunderstanding about old debts is procedural rather than substantive. People believe that if a debt is too old to sue on, the case will be dismissed.

It will not. A limitations period is an affirmative defense. The court does not check it, the plaintiff does not have to raise it, and if the defendant does not plead it, the case usually proceeds as though the debt were perfectly timely — and ends in a judgment.

That is the whole point of this page. The rule that matters is a pleading rule.

Limitations is an affirmative defense

FRCP 8(c)(1) puts it beyond doubt, and almost every state has an equivalent:

In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

The list that follows runs alphabetically from accord and satisfaction through statute of limitations to waiver, taking in payment, release, laches and estoppel on the way.

Two words in that sentence do the work. "Must" — it is not optional. "Affirmatively state" — it has to appear in the responsive pleading, not be implied by a general denial.

The practical consequence is stark. A defendant who files a general denial to a complaint on a twelve-year-old debt, in a state with a six-year period, has not raised limitations. The defense is generally treated as waived, and the plaintiff never has to prove the debt was timely.

Where the deadline itself comes from

The period is set by statute, and it varies by state and by the type of obligation — written contract, oral contract, open account, and promissory note are often given different lengths within the same state. Some states also apply a borrowing statute, which can import another state's shorter period where the claim arose elsewhere.

Those limitations statutes sit outside this site's corpora, which publish rules and codes of civil procedure rather than each state's limitations chapter. The number that applies to your debt has to come from your state's statute — and it is worth getting from the statute rather than from a chart, because the category the debt falls into is often contested.

The other date that matters: accrual

Knowing the length of the period is only half of it. You also need the date it started, and that is usually the date of default — commonly the last payment, or the date the account was charged off, depending on the state and the agreement.

Two features of accrual cause most of the argument:

Partial payment or written acknowledgment can restart the clock in many states. A single small payment made years later, sometimes after a collector's call, can reset the period from that date. This is the single most consequential trap for a debtor trying to wait out a debt, and it is why "just pay something to make them stop" is often the worst available advice.

Tolling can suspend the clock — absence from the state, and other circumstances the statute names.

Because these rules differ substantially, the accrual date is worth pinning down with the account records before you plead the defense.

What the defense does, and does not, do

A limitations defense bars the remedy. In most states it does not extinguish the underlying debt.

That distinction has consequences. A time-barred debt can generally still be reported within the separate credit-reporting periods, a collector can generally still ask you to pay it, and — critically — a voluntary payment may revive it.

What the defense does do is defeat a lawsuit, and that is what stops a judgment, and therefore stops garnishment, bank levies and everything else that follows a judgment.

How to raise it

Step 3 is where cases are actually won or lost. It costs one sentence.

If suit was filed on a time-barred debt

Filing or threatening suit on a debt the collector knows is time-barred can raise issues under the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 and following, and under state analogues. That is a separate body of law from civil procedure and outside this site's scope, but it is worth knowing the possibility exists — it can convert a defense into a counterclaim.

If a judgment has already been entered

The limitations defense is gone once judgment enters — but the judgment itself may be attackable if it was entered without proper service or by default in circumstances the rules address. Those routes have their own short deadlines, and they differ sharply by state. This site covers several:

• Setting aside a Colorado default judgment — 182 days
• Setting aside a Nevada default judgment — 6 months
• Opening a Georgia default — 15 days as of right
• Opening a Pennsylvania default judgment — a 10-day fast lane
• Setting aside an Alabama default — 30 days, or 14 in district court
• Vacating a Kentucky judgment — CR 60.02

A short checklist

1. Answer the lawsuit. Nothing about an old debt is self-executing.
2. Say the words. State the statute of limitations as an affirmative defense in the responsive pleading.
3. Raise your other defenses at the same time. Most rules waive what is left out.
4. Work out the accrual date from the account records — usually the date of default.
5. Check for anything that restarted the clock, especially a partial payment or a written acknowledgment.
6. Check for tolling under your state's statute.
7. Do not make a payment to buy time. In many states that is exactly what revives the claim.
8. Get the period from your state's limitations statute, and confirm which category the debt falls into.
9. If judgment has already been entered, move quickly — the routes that remain are short and state-specific.

Where these rules live

• FRCP 8 — General Rules of Pleading
• FRCP 12 — Defenses and Objections
• Tex. R. Civ. P. 94 — Affirmative Defenses
• Ohio Civ.R. 8 — General Rules of Pleading
• N.J. Ct. R. 4:5-4 — Affirmative Defenses; Misdesignation of Defense and Counterclaim
• Ga. O.C.G.A. § 9-11-8 — General rules of pleading
• Ill. 735 ILCS 5/2-613 — Separate counts and defenses

This page explains the procedural rule that makes a limitations defense work. It isn't legal advice. The limitations periods themselves, the rules on accrual, revival and tolling, and the Fair Debt Collection Practices Act are all outside this site's corpora, which publish rules and codes of civil procedure — check your state's limitations statute for the period that applies to your debt.