The United States Supreme Court has agreed to consider a case that could resolve a split among the United States Courts of Appeals as to whether the discovery rule applies to the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA"). Rotkiske v. Klemm, et al., No. 18-328 (U.S., certiorari granted Feb. 25, 2019).
The United States Court of Appeals for the Third Circuit has split with the Fourth and Ninth Circuits and held, en banc, that civil lawsuits alleging violations of the Fair Debt Collection Practices Act("FDCPA"), 15 U.S.C. § 1692 et seq., must be filed within one year of the alleged violations, and that the statute of limitationsis not tolled until the violations are discovered by the plaintiff. Rotkiske v. Klemm, 890 F.3d 422 (3d Cir. 2018).
In Armenian Missionary Association of America, Inc. v. TD Bank, N.A., et al, 87 UCC Rep. Serv. 2d 766 (D.N.J. 2015), the United States District Court for the District of New Jersey dismissed check fraud claims brought against TD Bank N.A. ("TD"). Plaintiff Armenian Missionary Association of America, Inc. ("AMAA" or "Plaintiff"), a non-profit organization that relies on donations to provide aid and assistance to Armenians throughout the world, sued TD after it discovered a series of alleged thefts by its former employee, Tigran Melkonyan, of over $800,000.00.
The "discovery rule" delays the three-year statute of limitations period for plaintiffs to bring tort claims "where the plaintiff did not know or could not reasonably have known that he or she may have been harmed by the conduct of another" until the plaintiff gains actual or constructive knowledge of the wrong. See Koe v. Mercer, 450 Mass. 97, 101 (2007). In an opinion issued last week, the Supreme Judicial Court broadened the discovery rule to include knowledge of the responsible person's identity, reasoning that such knowledge "seems implicit in the requirement that a plaintiff know that the defendant's conduct caused him harm; without such knowledge, the plaintiff does not know whom to sue." Harrington v. Costello, 467 Mass. 720, 2014 WL 1362630 at *4 (April 9, 2014)