Suing Debt Collectors: A Primer on Fighting Back
Suing Debt Collectors: A Primer on Fighting Back
Check the Secretary of State’s office to make sure their corporation is current with its annual reports. Then check the State Department of Business Regulation to see if they are current with their registration as debt collectors. You would be amazed at how many deletions I have won this way. If the debt collector is not legally compliant with State agencies they have no legal status to report or verify the debt!
Collection Agencies getting you down? Helpless and frustrated at the interruptions coming at the worst possible times, the lack of respect, the feeling that you just have to strike back if you only knew how. You want to teach them they’re messing with the wrong person. You’re “mad as hell and you’re not going to take it anymore.”
Debt collectors can be beat at their own game. I don’t suggest taking legal action on your own against them unless you are determined, organized, self confident and not easily discouraged. Unless you possess these traits the money you can make will not be worth it to you because of the distraction of the legal game. In short, for most people acting from a strictly financial point of view they would probably be better off putting the effort and energy they will expend in lawsuits enforcing their consumer rights into other endeavors.
All states have small claims procedures which are seldom very helpful because of limited small claims court jurisdiction. Small claims courts can’t assess punitive damages, you can’t get a declaratory judgment and there’s a low money damages cap. If the collection agency chooses to defend they will likely have the case removed to federal court anyway.
Federal lawsuits are not for the faint of heart. If you aren’t discouraged yet, read on. Let’s take a cold and dispassionate look at the legal landscape and then you can decide for yourself whether to wade in. If your state allows recording conversations with the knowledge of only one party as most do, Buy a voice recorder. Be a stickler for documentation. Keep a detailed diary. The devil is in the details.
Suing Debt Collectors: Federal Lawsuits are not for the Faint of Heart
Debt collectors often violate federal and state laws that protect a variety of consumer rights:
- Fair Debt Collection Practices Act (FDCPA). This protects consumers from debt collectors threatening legal actions that would violate such laws as garnishing wages, putting a lien on your house, misrepresenting the amount owed.
- Fair Credit Reporting Act (FCRA). This law requires the collectors to investigate claims of inaccurate information regarding the amount claimed.
- Telephone Consumer Protection Act (TCPA). This one is a little less well known. It forbids pre-recorded and auto-dialed calls to cell phones.
I recommend that you print these laws out and read them carefully before you go any further if you are serious about suing debt collectors. The text of the laws is readily available on the internet. Carefully attach them for ready reference to the file folder you are about to start. If you are not serious, stop now rather than wasting your time. Trust me, it’s not worth it unless you are fully committed to the fight.
Suing Debt Collectors: Dispute First
Dispute first. You will look less like a wing nut conspiracy theorist and more like a cold eyed professional if you do. Don’t think the legal process is some kind of great fun for crusaders because you will find out otherwise soon enough. Besides you may get what you want before taking the process to its extremes.
Check and study the postings of like minded people at the online community forum Debtorboards.com. Many, if not most, of these cases settle without trial if they are well documented and professionally presented. The going settlement rate cap is about $3500.00. At this price it is cheaper for debt collectors to settle than to pay a lawyer. That figure comes from a $2500.00 damage cap plus a $1000.00 lawyer’s fee which you get to keep if you are your own lawyer. You can try hiring a lawyer, but it should come as no shock to learn that most lawyers could not run an office on relatively small matters such as suits against debt collectors.. Check the website of the National Association of Consumer Advocates (NACA.net.) Member lawyers specialize in consumer issues Many are experts in the field of fair credit reporting. You can also try calling your bar association’s lawyer referral service or maybe even find an aggressive young lawyer starting a consumer law practice if you are lucky.
What is the law the debt collectors are violating? Are they calling at unreasonable hours? Are they making threats? Profanity? Calling neighbors? Here is where the recorder comes in. In order to beat them at their own game don’t be afraid to bait them into repeating or confirming the violation that has you so steamed. Ask and record their answers: Are you telling me you will garnish my wages? Put a lien on my house? Seize my bank account? Don’t be shy about this. Debt collectors use far more dirty tricks against you than you ever will against them. If you get the violation on your recorder you now have what it takes to make what lawyers call a prima facie case. This means that the case survives the test of a “first look.”
You should next check with your secretary of state to see what the registration requirements are for debt collectors in your state. See if the collector has complied. See if they have posted the surety bond they are required to post. If they haven’t complied here, mention this fact in your complaint. A complaint is the document you file with the Court that outlines your claim for relief in its entirety and which must be served on the defendant. Sample complaints are available in On Home Buying and Credit Repair’s Second Edition (onhomebuyingandcreditrepair.com) which I recommend you buy for further information on this topic. Your complaint must be complete and organized in a logical sequence. The heading will state the court in which it is filed. The clerk will give you a case number when you file. Your complaint will outline the elements of your case against debt collectors as follows:
Suing Debt Collectors: Checklist of Elements of Your Case
- The law says that certain conduct is prohibited.
- This court has jurisdiction over this matter and is empowered to enforce the law.
- Defendant is subject to the law.
- Defendant knew or should have known of the law.
- Defendant did the forbidden act.
- The forbidden act caused me specific harm as follows:
- I ask the court to award me X$ in damages and to order the defendant to remove all negative entries in my credit reports( or such other relief as you need.)
Suing Debt Collectors: Get to Know Your Terrain
Visit the Clerk’s office in the federal court with jurisdiction where you reside. Invariably the clerk will be friendly and helpful when you explain why you are there. You will obtain a copy of the local rules of civil procedure which differ in small but important details from jurisdiction to jurisdiction. These rules will explain such matters as service. Service means the process by which the defendant is notified of the pending action. The local rules will show you how to prove to the Court that you have done this. The defendant will counter this by filing an answer to your claim, typically within 30 days. The Court will schedule further proceedings if necessary.
Put in your best effort from the beginning because there is no prize for second place.