How the FDCPA Protects Consumers
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.
FDCPA as a shield
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.
FDCPA as a Sword
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.
FDCPA as Counterclaim
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.
FDCPA as Lawsuit
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.
Using Secured Credit Cards to Repair Credit
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Ending Debt Nightmare 3
End the Debt Nightmare
This is the third video in this series. Click here for video 2. And here for video 1.
Ending Debt Nightmare 1
Ending the Debt Nightmare
This is the first of a series of videos and reports designed to teach you about the debt collection process and litigation. You can find the second video of this series here.
Ending the Debt Nightmare 1-2
FDCPA and Bankruptcy
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.
Testimonial from Cheryl
Testimonial from a User of the Litigation Materials
The following is an email from a user of the Litigation materials. This customer used our materials to file a response, discovery. She was ready for trial, but the debt collector gave up rather than fight at that point. Note the way Cheryl’s view of herself has changed – and she deserves every bit of her success.
Testimonial by T
This testimonial from TD is elegant in its simplicity. To add a little background, T was being sued in two cases on two different debts. She won one by a motion to dismiss that really amounted to a summary judgment after argument in court. And she won the other after trial. The court commended her on her efforts and success.
T was a regular participant in the teleconferences, and In conversation she told everyone how it went. Here’s what she wrote in July 2018.
Good morning Ken,
Testimonial MS
Notes from a User of the Litigation Materials
The following is an email from a user of the Litigation materials. At the time of the letter, it was still relatively early in her litigation, but she has already won two motions and the respect of the lawyer on the other side – and the judge. That’s a lot to accomplish so quickly!
And she went on to win the case.
Hi Kenneth,
Thank you so much for all of the valuable information in your litigation package. I went to court this morning for a second hearing on Discover Banks MSJ. The first hearing was continued because judge granted me leave to file my opposition. Because of your material, I was able to draw up a pretty strong opposition, and consequently their attorney withdrew the motion.
The attorney said that he has evidence that at one point I paid off the account which would indicate that this was my account and that he would need time to investigate and would file another MSJ. Status hearing set for November. Now I will need to study your lessons to see what step I should take to move the case forward. Although I was hoping the attorney would dismiss the case today, I’m glad it was at least withdrawn. I’m hoping this is an opportunity to plan my strategies better.
Also, The attorney tried to get me to admit it was my account after the hearing by first complimenting me on how well I wrote my opposition and how I defended myself in court and then telling me that he had evidence of a cancelled check from my husband that at one point he paid the account off so why keep denying that it was my card? I was a little nervous at that point and caught off guard so I fumbled on some words, but made sure I didn’t admit to anything. In the end, I told him I feel I have valid arguments and that I have to defend myself and will go as far as I need to. He actually said that I do have valid arguments, but it just complicates things and makes it more costly, but complimented me again and a job well done.
I took his compliments lightly, but at the same time I knew my opposition was strong. I was also complimented in a MTD hearing in federal court a couple weeks ago for my MTD opposition, the Defendant’s attorney stated in court that he was impressed with the opposition. Judge granted leave to amend in that case. I mention the compliments only because it is because of your program I was able to file strong oppositions. Thank you so much!
Much Aloha,
Maryanne
Verification under FDCPA
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How the FDCPA Helps as Shield and Sword
How the FDCPA Protects Consumers
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.
FDCPA as a shield
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.
FDCPA as a Sword
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.
FDCPA as Counterclaim
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.
FDCPA as Lawsuit
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.