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The Telephone Consumer Protection Act is a powerful (fairly) new law aimed at businesses that call you on your cell phone without being invited – or that send you annoying, unsolicited faxes. Unfortunately, there are all too many companies that do this. Fortunately, every time they do do it, they are liable to you for $500 (plus the costs of the suit and – if you actually do have real damages – for any actual damages you can show, if they are more than the $500.
The National Do-Not-Call Registry (will help in asserting rights under TCPA)
This is the third video in this series. Click here for video 2. And here for video 1.
There was an issue regarding whether the FDCPA would apply to bankruptcy proceedings. In particular, this was fueled by the fact that the debt buyers are flooding the bankruptcy proceedings with debts beyond the statute of limitations. They are uncollectible (if objected to) in bankruptcy, but is making such a frivolous claim a violation of the FDCPA?
I thought so and argued so in various materials. The Supreme Court found otherwise, signaling the current court’s hostility to real people and tendency to bootlick the powerful.
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I have sometimes spoken of the Fair Debt Collection Practices Act (FDCPA) as both a “shield” and a “sword” – a fairly common legal metaphor for a law which has both offensive and defensive capabilities. Let’s consider a few of those capabilities in this article.
The FDCPA prevents debt collectors from taking advantage of you in various ways. When you are first contacted by a debt collector, for example, it is supposed to notify you of two important rights: you have the right to dispute the debt and seek “verification” of it; and you must know that anything you tell the debt collector will be used in further attempts to collect the debt from you. (We call this right the “mini-Miranda,” after the right you have, in a criminal context, not to incriminate yourself.) If you dispute and seek verification, the debt collector is required not to take further collection activities against you until after verifying the debt. If it does take further actions, it is in violation of the FDCPA (giving you the right to sue it). If the debt collector sues you before providing verification, you may seek to dismiss the case pursuant to the FDCPA. It is this ability to stop the lawsuit that I consider the true “shield” of the FDCPA. For more information on your right to verification, see Requiring Debt Collectors to Validate – Your Secret Weapon.
The FDCPA also requires a debt collector to bring suit against you either where the contract it is seeking to enforce against you was signed or where you reside. This means it cannot sue you in a place which is inconvenient or expensive for you to reach. If it sues you in the wrong jurisdiction, it is again both a violation that gives you the right to sue it and a legal tool you can use to seek dismissal of the case.
There are many other rights provided by the FDCPA which prevent or require the debt collector to stop doing certain things. That’s the essence of any law – that it requires or prevents certain actions. Speaking very broadly, the FDCPA prohibits any sort of unfair methods or deceptive communications on the part of the debt collector. We will discuss these prohibited actions in greater detail in other articles, but in this article we will discuss the ways you can use debt collector violations to your benefit.
If a debt collector violates the FDCPA and then sues you, as is quite often the case, or if it violates the FDCPA in the process of suing you, you can file a counterclaim against it. Basically this means that when you answer the petition (also sometimes called a “complaint”) against you, you will add a claim against the debt collector to your denials that you owe them money. And you will ask for money to penalize them for breaking the law and an order of the court that they should stop. I have often advocated the use of a counterclaim as an important way to keep the debt collector from simply dropping the case just before trial without eliminating the debt. For more information on the values and advantages of counterclaims, see The Importance of Counterclaims.
If a debt collector violates the FDCPA and then does not sue you, or if you defend the suit without bringing a counterclaim and later want to sue the debt collector, you can do so with the FDCPA. You can bring an original lawsuit against the debt collector in either state or federal court, and again, you will be asking for the “statutory penalty” of “up to $1,000,” an order of the court to make them stop doing whatever they were doing, and – if justified – “damages,” which could include money for emotional distress. We will discuss possible “remedies” – what you can get – of the FDCPA in future articles.
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In this article we’re briefly going to jump right in – actually all the way in – to the topic of debt collection. That’s because I want you to know, in a solid, specific way, why you have such a good chance to win if you get sued by a debt collector. You’ll see that by the time we finish this video.
There’s much more to learn, of course, and we’re even going to go back and fill in a few of the gaps from today’s discussion, but for now I want to show you that defending yourself from debt collectors isn’t – and doesn’t need to be – magical in any way. There are no secret methods here, no weird or bizarre tricks like writing things at angles or declaring that your mother sold you into slavery when she signed your birth certificate. There’s just knowing who the debt collectors are and how they operate, and knowing what to do about that in court.
Anybody can do it. Really. And if you do it, you will probably win your case.
Now before I get started, I want to tell you a little bit about lawyer-speak. I do that sometimes, and I want you to know how to take it. For example, I said above that if you understand what I’m about to tell you and do it right, you will “probably” win your case. Against almost all debt collectors and except in rare situations, I mean that you absolutely should win your case. But… nothing in legal life is guaranteed. It’s drilled into us in law school and later in practice that unexpected things happen, and people do wrong – they don’t know something, pay attention, or care sometimes when they should. That stuff happens, we all know it does, and it’s why I say things like “probably” when other people might sound more certain. I have a habit of speaking more precisely. Marketing and advertising is usually the opposite of that. So don’t worry – I wouldn’t tell you stuff if I didn’t think the chances were overwhelming that it would do you good. See that? I did it again! And I’ll probably do it all through these videos and articles. Don’t worry about that.
Okay, so you didn’t know it, but we were talking about what’s called the “Rule against Hearsay.”
That’s what’s called a “rule of evidence.” Rules of evidence control what a court is allowed to consider in rendering its decision. In debt collection cases, this is absolutely critical. I estimate that fully 95% or more of every debt collection case that actually goes to trial or is resolved on motion for summary judgment, will be determined by the way the rules of evidence are applied.
We’ll go into this in more detail later. For now, I want you to understand that courts are allowed to consider only evidence given under oath in court – unless there’s a specific rule that would allow something else to be considered. Think about it – among other things, that means that business records are not allowed – because they’re not evidence given under oath in court – unless there’s a specific rule that would allow them in.
The rule that debt collectors use is the “business records exception” (to the rule against hearsay). That rule is slightly different in different places, but it always requires someone who is familiar with the way records are kept to testify to certain specific things. And DEBT COLLECTORS ALMOST NEVER CAN TESTIFY TO THE WAY RECORDS WERE KEPT BY THE ORIGINAL CREDITORS. That means that if you object and know what to say, the debt collectors can virtually never get their most important evidence in front of the court. They must lose their case then, and you must win.
We’ll talk more about the specifics later, but bear in mind that debt collectors buy vast quantities of debt at a time, and they so rarely need effective affidavits from the original creditors that they really essentially never get them. They probably won’t have them in your case, and won’t be able to get them, either. If you know how to object and (1) invoke the rule against hearsay and (2) point out their inability to follow the business records exception, you should be able to win your case.
Sometimes judges aren’t ready to listen to you, and we’ll talk about that in a later video, too. But for now: learn how to use the rule against hearsay, and you should win your case. No magic. Just the rules of evidences as they SHOULD be applied.
Find the rules that will apply to your case, learn them, and follow them even if you have good reason to think you could get away without doing that. That’s because it’s the debt collectors who need the court to “relax” (ignore) certain rules, and there’s a risk that a court that gives you a break on some procedure ALSO gives the debt collector a break on the rules of evidence.
That’s what you don’t want.
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