The FDCPA was passed by Congress and signed into law by President Carter to prohibit abusive and harassing debt collection practices. Congress wanted to protect consumers from this conduct, which was affecting households and ruining lives. The bill was passed after lengthy hearings detailing some of the horrific things that debt collectors were doing to collect from consumers.
You do not have to simply take it when a debt collector subjects you to unfair or abusive tactics. The law gives you the ability to take action. You can do more than just simply put a stop to the wrongful conduct. You can even receive compensation when you can prove that illegal conduct occurred. First, you should contact a San Diego FDCPA lawyer to learn how to file a lawsuit against the debt collector.
What Debt Collectors Cannot Do Under Federal Law
There are a host of practices prohibited under the FDCPA. The law controls how often a debt collector may call you and what they can say during the course of the conversation. Here are some of the things the FDCPA sets out:
- Limitations on when and how often the debt collector may contact you - The debt collector cannot contact you during certain hours. They also cannot try to contact you more than seven times in seven days or within seven days of speaking with you.
- The debt collector cannot contact you after you have told them to stop - If you have told them in writing or verbally that they can no longer call you, they can only contact you to inform you they intend to file a lawsuit against you (which is still their right, even though they cannot contact you)
- Limitations on who the debt collector can contact about your debt - They cannot contact your employer or even a friend. They can only contact others to try to find your contact information. The debt collector can only contact you or others who may be responsible for your debt to discuss the actual debt itself.
- The debt collector cannot harass, oppress, or abuse you - The law prohibits the use of profanity. They also cannot threaten violence or criminal action against you or your property. They can tell you they intend to file a lawsuit against you or have the right to do so.
- The debt collector cannot make false or misleading representations - For example, they cannot exaggerate penalties you may face or pretend to be a lawyer when they are not. They also cannot state or imply that they are associated with the state or federal government or a consumer reporting agency.
- The use of unfair practices - The debt collector cannot inflate the debt or assess their own fees for collection. The debt collector can only ask for extra money from you when it is explicitly authorized in the initial agreement between you and the original creditor. They also cannot invent a fictitious debt and try to collect it from you (as debt collectors have been known to do).
You Can File a Lawsuit Under Federal Law
If the debt collector has done any of these things, they have broken the law. The federal government can directly take action against them by issuing a fine or even putting them out of business. These measures may be satisfying, but they do not compensate you for what the debt collector has done directly to you.
The FDCPA contains a private right of action. Congress expressly intended the FDCPA to be a law that allows for compensation. You can and should make debt collectors pay the price for what they have done to you. They contacted you with the intent of pushing you around and using any measure necessary to force you to pay your debt. You can turn the tables on them, and they will be the ones who owe you money.
The law allows you to file a lawsuit against anyone who violated your rights under the statute. You do not have to wait for the government to take action (although the Federal Trade Commission can levy a fine against the debt collector in an enforcement action). You still need to carry the burden of proof that a plaintiff has in any civil case. You just need to prove your case by a preponderance of the evidence.
Preserve Any Evidence of the Debt Collector’s Violation of the Law
You still need proof that the debt collector violated the FDCPA. If they made repeated phone calls, it may be an easier case because you can use your phone records as evidence. If your lawsuit is based on something a debt collector did or said, you need proof that their words or actions violated the law, which can be more challenging. An experienced FDCPA lawyer can assist with documentation and supporting your claim so you can demonstrate you deserve compensation.
Accordingly, you should save any evidence that you have that can be used to prove your claim. You should be extremely careful about recording the phone call with the debt collector. First, you should understand the laws in your jurisdiction about consent to phone call recordings. You may be in trouble yourself if you break the law (an attorney can advise you whether you can record the phone call).
When drafting your complaint, you do not need to provide evidence that the defendant intended to violate the statute. Debt collection protection laws are strict liability. You just need to prove that a violation occurred, and then the burden shifts to the debt collector to prove that a defense exists. The debt collector can use the defense that the preponderance of the evidence shows that their violation was unintentional. However, the debt collector will likely not escape liability if they remained willfully blind to their obligations under the law.
Contact an Experienced Attorney to Discuss Your Case
You should begin the FDCPA lawsuit process by contacting an experienced attorney. Consumer protection lawyers are very familiar with this particular law and many have a track record of delivering results for their clients. FDCPA violations are not as cut-and-dry as they may seem. The debt collector will also “lawyer up” themselves, and they may have sophisticated counsel who can help them defend the case.
Estimate Your Damages to Seek in a Lawsuit
Then, you need to quantify the damages that you have suffered. In any FDCPA lawsuit, you should be entitled to statutory damages of up to $1,000 in your case. You can also obtain payment for the damages you personally suffered. For example, the harassment and abuse by the debt collector may have caused you significant mental health issues that have affected your life.
You might seek compensation for the following:
- Emotional distress
- Medical costs to treat your condition
- Embarrassment and humiliation
- Lost earnings, if you either lost your job because of what the debt collector did, or your productivity from work suffered.
These damages can be considerable depending on how you were affected by the debt collector’s actions.
Determine Where You Should File Your Lawsuit
One of your first steps with your consumer protection attorney is determining whether to file your lawsuit under the FDCPA or state law. Some states may have laws even broader than the FDCPA, giving you a better chance of winning your case. These states may also not limit the damages you can receive. Finally, you might obtain punitive damages under state law, as opposed to the statutory damages you may get under the FDCPA (the FDCPA does not explicitly provide for punitive damages, and most federal courts hold that they are unavailable in a lawsuit).
The next step is to select the court that should have jurisdiction over your FDCPA lawsuit. The law says you may file your case in "any court of appropriate jurisdiction." In other words, the normal federal civil rules regarding jurisdiction apply to the case. You cannot sue the debt collector in a court located halfway across the country without connection to the illegal action. Usually, you want to sue them in a court located where the conduct occurred.
Determine Who You Will Be Suing
You will need to determine who to sue in an FDCPA action. The law allows you to file an action against a "debt collector." For purposes of the FDCPA, a debt collector can be an individual or a company. Generally, a debt collector is someone who “regularly collects or attempts to collect consumer debts on behalf of another person or institution.” You can sue the debt collector personally, but you are better off when you can sue their employer. If the initial creditor sold the debt to a collector, you will sue the actual debt collector (although state laws may apply to creditors).
Remain Within the Statute of Limitations
Then, you must file your complaint within the statute of limitations for an FDCPA violation. The FDCPA contains its own specific time limit for you to file a lawsuit in court. You have one year from the date the violation occurred to file your case in federal court. In a recent ruling, a federal appeals court held that the statute of limitations applies to each violation of the FDCPA. There may always be questions about when the statute of limitations begins to run, so you should contact a consumer protection attorney as soon as possible.
Determine Whether to Sue Individually or File a Class Action Lawsuit
You can also decide whether to file or join a class action lawsuit. Debt collectors have bought far more than just your debt. Debt collection is a volume-based industry. Chances are that the debt collector is using the same tactics with others as they have used with you. If numerous people have experienced the same harm, you can join together in a class action lawsuit. However, the debt collector can fight the class certification, potentially jeopardizing your entire case. You should consult an FDCPA lawyer about whether it makes sense to file your own lawsuit or become part of a class action.
If you pursue a class action, the procedures can be different from an individual lawsuit. You need an FDCPA attorney with experience handling class actions if you choose to take this path. Never assume you will automatically receive compensation simply because many people suffered harm. Sometimes, companies fight these cases most aggressively since there is a lot more on the line.
Negotiate a Settlement or Take Your Case to Trial
Your case will then proceed through the court system. The debt collector may try to settle your case, especially when they know there is overwhelming evidence in your favor. Then, your attorney can negotiate with the debt collector to reach a fair settlement agreement. Most court cases will not actually proceed to trial. The defendant realizes that the result can be far worse for them if they do not settle.
You can and should fight to get what you deserve, knowing that the law is on your side if the case goes to court.
You Do Not Need to Pay Out of Pocket for Legal Help
You may be wondering how much you need to pay to get legal help in an FDCPA case. The answer is nothing right off the bat, and it might be nothing at all throughout the entire case. A consumer protection attorney does not ask you for any retainer fee. Instead, they work for you on a contingency basis throughout your case. They are only paid if you win your case. Even then, your settlement or court award can include money for attorney’s fees, meaning that it does not come out of your compensation. Thus, there is no risk to you in hiring an attorney.
At the very least, you should contact a consumer protection attorney to discuss your case during a free initial consultation. You never have to sit and wonder about your rights to sue under the FDCPA, as professional legal guidance is available at no upfront cost. Contact a nearby consumer protection lawyer about potentially suing debt collectors who have violated your rights.