For most jurisdictions, the statute of limitations/look back period to bring a Telephone Consumer Protection Act (TCPA) lawsuit is 4 years.  As such, many companies keep account notes, call/dialer records, and account correspondence for 4 years.  After 4 years, should you throw away those records?

There is a specific situation where a TCPA lawsuit can be filed up to 6 years after the problematic calls and is not subject to dismissal as being untimely.  If the 4-year period was tolled by a bankruptcy, a trustee managing a bankrupt debtor’s estate may prosecute a TCPA claim even after 4 years has passed since the last call.

If the statute of limitations has not expired before the date of the filing of the petition, then the bankruptcy trustee may commence the action before the later of: (1) the end of the statute of limitations or (2) 2 years after the date of the filing of the petitionSee 11 U.S.C. § 108; see also In re Carroll, 400 B.R. 497, 501 (N.D. W. Va. 2008) (“[T]he Trustee has at least until two years after the Debtor’s bankruptcy filing . . . to assert the Debtor’s causes of action . . . .”).

For example, if a debtor/consumer has a TCPA claim but files for bankruptcy the day before the 4-year statute of limitations expires on his TCPA claim, the trustee has another 2 years to file the TCPA lawsuit.

Practice Point: If you want to have account records to assess the viability of a TCPA claim, it may be best to keep the account records for at least 6 years and a day to account for any bankruptcy tolling of the statute of limitations. Questions? Call us to discuss options.

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