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Debt collection isn’t always a “pretty” business, and if you owe money – or if a company thinks you owe it money – they can get pretty rough. The law is practical, in general, and recognizes the importance of businesses getting paid. But there are limits. You have rights against rogue debt collectors.
Most of these rights can be found in the Fair Debt Collections Practices Act. We talk a lot on this site about defending yourself from collections suits. And this defense can often take the form of making counterclaims, as well. But what if you want to sue them? Can you do so? and why would you? This video explores those questions a little bit.
There are a lot of reasons you might want to sue the debt collector. Doing so allows you to choose the time and court of the suit. Also, because debt collectors frequently sell the (your) debt, the one currently bugging you might not want or be prepared to sue you. Filing suit means you catch them unprepared, and they will be more likely to settle with you and cancel your debt. The Debt Defense System will guide you through the process.
It is easier to sue a debt collector than an original creditor for debt law violations. You have a fairly clear, broad set of rights against debt collectors under the Fair Debt Collection Practices Act (FDCPA). In general, they are required to be fair with you, and this means they must inform you of certain of your rights (like verification, for example), must not deceive or attempt to deceive you, cannot harass you beyond certain limits, and in general must treat you with fundamental fairness. If they violate any of these rules, you’ll have a claim against them under the FDCPA.
It’s a little different with original creditors. Businesses that have a relationship with you other than simply as collectors are somewhat vulnerable to getting bad reputations – they are “accountable to the market.” That puts certain natural limits on their actions as to how roughly they can treat you. Therefore, the FDCPA does not need to give you as many rights against them. Still, there are limits, and behaviors so extreme as to be “outrageous” will give you a right against original creditors.
So a critical distinction will be whether the company is a debt collector within the meaning of the law or not. That used to be easier to prove than it is now. If the company bugging you owns the debt it’s bugging you about, you will need to allege and prove that its “principal business” is debt collection. If it can show that it does other things (like lending or servicing accounts, or possibly even it it’s a subsidiary of another company that does other things), it may not be a debt collector. The biggest debt collectors are probably still within the FDCPA, but some others may not be.
Although hiring a lawyer might be the “gold standard” of defense, lawyers are always expensive. If you’re being sued by a debt collector and can’t afford a lawyer, all is not lost. You CAN represent yourself. This is not complicated law, debt collectors are not innovative or particularly energetic, and the debt collection system is a “factory” approach not designed to work against people who defend themselves intelligently. You can do it.
Okay – maybe debt defense isn’t always very fun. In fact, most of the time it isn’t exactly fun, but it is easier than you expect, and winning is great. Going from the threat of having to pay (somehow) from $1,000 to $50,000 to some debt collector, to having them drop the case – or to settling with you for pennies on the dollar… that’s fun, and it changes the way you look at debt and debt law forever.
Pro se legal representation means representing yourself rather than hiring a lawyer to do it for you. You have the right to do that in essentially any court proceeding, whether as defendant or plaintiff, and whether the matter is civil (for money) or criminal. Pro se is a Latin phrase meaning “for oneself,” and you will sometimes see it called propria persona (abbreviated to “pro per”). In England and Wales, the comparable status is called “litigant in person.”
Although many people fear the thought of representing themselves in court, pro se representation is not rare. According to National Center on State Courts in 1991-92 71% of domestic relations (family law) cases had at least one unrepresented party, and in 18% of the cases both parties were pro se. It is a growing trend in debt collection law as well as family law and other matters.
The right of self-representation has long been established in the United States. It predates even the ratification of the Constitution, as Section 35 of the Judiciary Act of 1789—enacted by the first Congress and signed by President Washington, states that, “in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel.” Most states have a similar constitution provision.
The California rules of Civil Procedure explicitly express a preference for resolution of every case on the merits, even if resolution requires excusing inadvertence by a pro se litigant that would otherwise result in a dismissal. The Judicial Council justifies this rule with the argument that “Judges are charged with ascertaining the truth, not just playing referee.” And the Council suggests “the court should take whatever measures may be reasonable and necessary to insure a fair trial.”
Although most states and the federal courts share this bias in favor of hearing courts on “their merits,” (based on what is actually fair), pro se litigants cannot rely on any special treatment. Some courts explicitly will not extend favorable treatment to non-professional litigants.
They may not need any extra help. According to Erica J. Hashimoto, an assistant professor at the Georgia School of Law, criminal defendants are “not necessarily ill-served” by the decision to represent themselves. In state court, pro se defendants charged with felonies probably fared much better than represented defendants. Of the 234 pro se defendants studied by Ms. Hashimoto, “just under 50 percent of them were convicted on any charge….for represented state court defendants, by contrast, a total of 75 percent were convicted of some charge.” And just 26 percent of the pro se defendants ended up with felony convictions, whereas 63 percent of represented defendants in Ms. Hashimoto’s study did. In federal court…the acquittal rate for pro se defendants is virtually identical to the acquittal rate for represented defendants.
Of course there could well be other important variables that the Hashimoto study did not include, but it seems clear that there is nothing like an “automatic penalty” for daring to represent yourself. And as I have pointed out many times elsewhere, there are certain types of cases and situations where pro se representation may actually be an advantage. In debt collection cases, for example, the economic factors often outweigh legal issues, and a vigorous pro se defendant can gain a significant advantage by being able to take energetic steps in his or her favor that a lawyer—always on the clock—would pragmatically be unable to take.
Courts are not always favorable to self-represented people for various reasons, but even with that bias, pro se plaintiffs have recorded some significant victories in civil courts. For example, Robert Kearns, inventor of the intermittent windshield wiper who won more than $10 million from Ford for patent infringement; Reginald and Roxanna Bailey, a married couple, together won $140,000 from Allstate Insurance in a federal jury trial in Missouri, and George Cofield, a janitor, won $30,000 from the City of Atlanta in 1980. Among others. Pro se defendants encounter fewer prejudices and have many more victories. These victories often occur in less easily reportable fashion, being simply the unheralded dismissal of a debt collection action.
As pointed out above, defendants in debt collection cases have some significant economic advantages in conducting their cases. They also have fewer of the disadvantages that many other types of cases have. This may simply be because debt collection cases tend to be document-intensive rather than witness-intensive. In the somewhat unusual case which actually goes to trial, the court is confronted with basic evidentiary questions: can the debt collector produce enough evidence? And is it “admissible” in court for the court’s consideration? Little finesse is required.
This basic legal simplicity, the fact that debt defendants were obviously brought before the court against their wishes, and the general economic difference between typical debt defendants and plaintiffs often seem to create a favorable impression on the judges.
If you would like us to take a look at your case and give you a sort of roadmap to what you need to do and how, take a look at our Personalized Evaluation product. If you’re being sued and already know you want to defend yourself without spending a lot of money on lawyers, then get out Debt Defense System.
If you are being contacted by debt collectors, you need to be alert to protect your rights. These calls are often a prelude to their suing you. You might consider membership with our site, which gets you our ecourses for free, plus gives you many other benefits.Check out some of our e-courses. Or consider our prepaid legal plan to protect you from future possible litigation. With that, if you get sued, you’ll get a lawyer to defend you for free.
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