Collecting debt in North Carolina: licensing, bonds and statutes of limitations.

“We hold here that where plaintiff sues on a current account, a part payment which constitutes an acknowledgment begins the statute running anew as to the entire amount that is acknowledged and not merely those items which accrued within three years of the payment.”

§ 1-26 preserves 'the effect of any payment of principal or interest'. The payment restarts the period only if it is an acknowledgment: Whitley's requires 'circumstances showing that in making the payment the debtor intended to acknowledge the entire account and thereby impliedly promised to pay the balance due'; Nance: 'It is necessary that the payment be voluntary, that it be such as to imply in law that the debtor acknowledges the debt and distinctly promises to pay it; but a payment made under circumstances which repel such implied promise will not stop the running of the statute.'

“No acknowledgment or promise is evidence of a new or continuing contract, from which the statutes of limitations run, unless it is contained in some writing signed by the party to be charged thereby; but this section does not alter the effect of any payment of principal or interest.”

Both passes agree: a writing signed by the party to be charged. Pickett: 'A new promise to pay fixes a new date from which the statute runs, but such a promise, to be binding must be in writing.'

Both passes agree. Limited borrowing clause inside the absence-tolling statute: 'Provided, that where a cause of action arose outside of this State and is barred by the laws of the jurisdiction in which it arose, no action may be maintained in the courts of this State for the enforcement thereof, except where the cause of action originally accrued in favor of a resident of this State.' It borrows only a shorter foreign bar (a claim must be timely under both) and not when the claim accrued to a NC resident; otherwise NC applies its own limitations as procedural law (Boudreau). The section's tolling for absent defendants does not apply where NC courts have personal jurisdiction under § 1-75.4.

“Seeking or obtaining any written statement or acknowledgment in any form containing ... an acknowledgment of any debt barred by the statute of limitations, or a waiver of any legal rights of the debtor without disclosing the nature and consequences of such affirmation or waiver and the fact that the consumer is not legally obligated to make such affirmation or waiver.”

No general requirement that every communication on a time-barred debt carry a disclosure. Two rules, both re-read on ncleg.gov. (1) Disclosure only when seeking a written acknowledgment or waiver: § 58-70-115(1) (licensed collection agencies) and its parallel § 75-55(1) (all other 'debt collectors', which under Chapter 75 Article 2 includes creditors collecting their own debts) make it an unfair or unconscionable practice to seek or obtain a written acknowledgment of a time-barred debt or a waiver of rights 'without disclosing the nature and consequences of such affirmation or waiver and the fact that the consumer is not legally obligated to make such affirmation or waiver.' (2) Outright bar for debt buyers: § 58-70-115(4) (added S.L. 2009-573) makes it an unfair practice 'When the collection agency is a debt buyer or is acting on behalf of a debt buyer, bringing suit or initiating an arbitration proceeding against the debtor or otherwise attempting to collect on a debt when the collection agency knows, or reasonably should know, that such collection is barred by the applicable statute of limitations.' So debt buyers and agencies acting for them may not collect time-barred debt at all, by any means; original creditors and non-debt-buyer agencies are not covered by (4). § 58-70-115(5) (documentation before collection) and (6) (30-day pre-suit notice) also apply to debt buyers. Federal Regulation F (12 CFR 1006.26) applies in addition.

Yes, a voluntary part payment made after the bar revives the balance for a new period, but only when the circumstances show the debtor acknowledged the whole debt and impliedly promised to pay it. Dowd (1907), quoting Hewlett: 'A partial payment, though the evidence need not be in writing, being an act and not a mere declaration, revives the liability, because it is deemed a recognition of it and an assumption anew of the balance due'; and 'A payment of part, in full satisfaction of the whole, or accompanied by acts or declarations showing that the debtor does not intend to pay the balance, will not suspend the statute or revive the balance of a barred debt.' Whitley's (1977) applied the rule to current-account items that were already more than three years old when the payment was made, holding the acknowledging payment 'begins the statute running anew as to the entire amount that is acknowledged and not merely those items which accrued within three years of the payment.' Nance: the payment must be voluntary and made 'under such circumstances as will warrant the clear inference that the debtor recognizes the debt and his obligation to pay the remainder due.' A signed writing revives under § 1-26. Practical limit: for debt buyers and agencies acting for them, § 58-70-115(4) makes any attempt to collect a time-barred debt (which would include soliciting a reviving payment) an unfair practice, so revival by payment is practically available only to original creditors and non-debt-buyer collectors, and even they must give the § 58-70-115(1) / § 75-55(1) disclosure before obtaining a written acknowledgment. Status: the statute bars the action (an affirmative defense that must be pleaded); it does not extinguish the debt, and the revival cases presuppose a surviving obligation.