How to sue a debt collector -- and win
Before your day in court, document violations of collection law
By Fred O. Williams | Published: November 9, 2012
If you are getting calls from bill collectors, federal law protects you from harassment, deception and breaches of privacy.
But what happens when collectors don't follow the law?
|DEBT COLLECTION CORRECTION?|
Consumers file fewer lawsuits against collectors, but not everyone thinks that abuses are easing.
The same law that sets boundaries on collectors' behavior gives you the right to sue them when they ignore the rules. The U.S. Fair Debt Collection Practices Act (FDCPA) imposes a $1,000 penalty on the collector if they lose the case, plus reasonable attorney fees, as an incentive for them to toe the line.
Going to court is the last line of defense against abusive collections, but not an uncommon one, lawyers said. "Suing noncompliant collectors is part of compliance -- that's what Congress set up," said Richard Rubin, a consumer attorney in Santa Fe, N.M., and former chairman of the National Association of Consumer Advocates (NACA).
You will need an attorney to help prove that you were wronged. One way to find a consumer lawyer in your area is to search the "Find an attorney" section on the NACA website.
Here are some common violations of the law, and tips from consumer lawyers on how to prepare your case:
- Calls won't stop. Under the FDCPA, you may send a "cease communication" letter to the collector that is supposed to shut off further calls. If calls continue, bring a copy of the letter along with proof that you mailed it, such as a return receipt. Courts are also accepting receipts for sent faxes. And bring an account of the calls you have received, either from your telephone records or by making notes of the dates and times of collection calls. "Lawyers love paper -- that's why they became lawyers," said Richard Feferman, a consumer attorney in Albuquerque, N.M.
- Harassment. The law doesn't say how many phone calls constitute harassment, but courts generally rule that frequent, consecutive calls show intent to harass, Feferman said. Also, calls between 9 p.m. and 8 a.m. are forbidden. Most people automatically keep records of calls in their cellphone call history or through caller identification features of their home phone.
- Harm to reputation. Calls to "third parties" such as neighbors or family members are permitted only to confirm your home address, phone number or place of employment. However, debtors often complain that collectors use these calls to shame them or as a pressure tactic. It's a violation for a collector to tell a third party about your debt or ask them to relay a message to you. Document these violations with a written statement from the person and a copy of any message they took from the collector.
- Debts not owed. If a collector won't drop demands for amounts that you don't owe, gather account records and receipts that show the correct balance. If the demands involve an account you never had, confirm this with copies of your credit reports. Debts erased by bankruptcy are also covered under this protection, but if you have already been through that process, Feferman recommends getting help from your bankruptcy attorney to stop collection attempts. "That's why you file bankruptcy, to get these people off your back," he said.
- False threats. Debtors often complain about threats that they are about to be hauled into court for nonpayment or even thrown in jail. Usually, the collector lacks the authority to follow through, making this a violation. Real collection lawsuits typically begin with service of court papers, not a phone call. Proving what was said on the phone is often difficult, but it needn't be, Rubin said. Consumers have a right to record their calls in every state, as long as they tell the caller that the tape is rolling. Some states don't require this notification, but Rubin recommends it anyway, as collectors may think twice about what they say when the "record" button is on. "Having a tape recording saying you're going to jail is the gold standard in the litigation business," he said.
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