Verification Ignored

What to Do if They Don’t Verify

One Gold Member who is being sued by a debt collector told me he had sought verification and then, prior to providing it, the debt collector had filed suit against him. What would be the right step to take in that situation? Is the debt collector somehow “estopped” (prevented) from filing suit? Or what action should the debt defendant take?

Estoppel

It is clear that the debt collector should not be allowed to sue  you without responding to a verification request – one way to describe that is to say it should be “estopped” from doing so. Estoppel is not actually what you need here, though. For a description of the purpose and uses of estoppel, read Estoppel, Claim and Issue Preclusion. Here you need to move for “stay or dismissal,” or to “enjoin” them from continuing.  Moving for stay or dismissal is probably the way to go: You ask for verification, and they file suit without verifying, and you just move to dismiss on the grounds that the FDCPA does not permit further action until verification has occurred. You ask the court to “stay” (halt) the suit until verification has taken place, or to dismiss it altogether as an action prohibited by law.

This would be a motion to dismiss – best filed even before answering the petition, but it should be effective even if you’ve already answered since the FDCPA requires them to verify before taking further action. I have not seen cases addressing this point, but it would seem to be a substantive limitation on their right to sue. If, however, the court were to see the limitation as comparable to a statute of limitations, it might also rule that it could be waived by answering the petition. The argument against that is that such an interpretation would severely undermine the effectiveness of the statute, which is designed to help less sophisticated consumers and seem to encourage debt collectors to try to get away with violating the Act.

Another way you could consider is a suit to enjoin. The thing about a suit to enjoin is that it should be brought in a different court – preferably one of higher jurisdiction. So, for example, you could file a Suit to Enjoin in federal court asking the federal court to “enjoin” (prohibit) any further action in the state court. You could maybe do the same thing in a circuit court about an action brought in small claims court (although I’m not totally sure about this). If you live in one state and are sued on a debt in another one, you could file a suit to enjoin in your home state based on the argument that the FDCPA requires lawsuits to be brought in the home jurisdiction of the debtor. When a motion to dismiss is available, though, a suit to enjoin is probably more expensive and difficult than it’s worth. However – if the state is typically not granting such motions, you might go to federal court to get a fairer reading of the statute.

What If Your Motion to Dismiss is Denied?

If you file a motion to dismiss and the judge denies it, you have two options – or three, actually. You can  seek review (but not by way of appeal), you can move on and hope to appeal later, and/or you can file a counterclaim along with your Answer. I suggest immediate review, although this does have some challenges.

Filing a Writ

Every court is overseen or “reviewed” by some court. Sometimes small claims courts or “magistrate courts” are reviewed by a circuit court (court of full jurisdiction), but other times they are reviewed by courts of appeal – that’s something you need to find out very early in your case. Circuit courts are always reviewed by courts of appeal. If you file a motion to dismiss, and it gets denied, you would need to seek review of the ruling by the appropriate court. But in any event this will not be by “appeal” if the case is still going because cases are only appealed after they become “final.” Instead, you will file what, in Missouri, is called a “Writ of Prohibition.”

Writs of prohibition are designed to allow the court of appeals to review a ruling in the trial court before the case is final – because if you have to wait that long, the whole point of the ruling would be negated. You file a motion to dismiss, of course, because you do not want to have to litigate – but that obvious need would not ordinarily be enough to get the writ granted. In this case, however, the whole point of the FDCPA section requiring verification is to prevent the debt collector from being able to inflict the costs and risks of litigation on people where they haven’t verified the debt. Failing to dismiss the case for lack of having verified totally subverts that purpose of the statute.

Waiting and Appealing

As I point out above, if you wait and appeal, the whole point of the FDCPA rule will have been subverted – it is designed to spare courts and individuals the cost and time of litigation. If you wait to appeal the denial of your motion, you run an extreme risk, in my opinion, of the court of appeals deciding that there is nothing they can do to help you. By the time the case is appealed, the plaintiff will already have had to prove ownership of the debt – and that would certainly satisfy the requirements of verification. The appellate court would be extremely reluctant to negate all the work of the trial court on such a technicality – to force them to go back, have the debt collector “officially” verify the debt and then do it all over again. Your chance of getting the court to do that are almost zero.

If instead of filing a motion to dismiss in the state court you file a lawsuit to enjoin in the federal court, your only choice might be to seek appeal – but the court would be less likely to refuse to hear the appeal on the grounds that the other action had gone forward.

Filing a Counterclaim

Whether or not you seek to have the case dismissed or enjoined, you could bring a claim for damages under the FDCPA against the debt collector for violating the law. I believe this claim would be independent of your right to prevent the suit against you. You would be stating a claim under the FDCPA for an unfair debt collection practice as specifically designated by the Act. And this claim would be good even if you did manage to get the case against you dismissed.

Defending

Whatever your choice, you must be aware that if the debt collector files suit, nothing good will happen automatically. You must defend yourself. This means either moving to dismiss the suit or answering and pursuing your defenses.

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