Congress recognized the need for greater consumer protection and passed the Fair Debt Collection Practices Act in 1978 to prohibit abusive and harassing debt collection practices of debt collectors. Congress wanted to protect consumers from conduct by collectors that can adversely affect households and even ruin lives.
The legislature passed the bill after lengthy hearings detailing some of the horrific things debt collectors did to collect from consumers. Collectors were contacting family members and employers and exposing information about unpaid debts. They regularly harassed debtors in various ways that affected every aspect of their lives. If you’re a victim of such practices, a California FDCPA lawyer can help you understand your rights and seek justice.
Thankfully, the law now protects consumers from harmful collection practices and outlines what debt collectors can and cannot do. 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 seek compensation for what happened when you prove that illegal conduct occurred. First, contact a consumer protection attorney 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 the FDCPA expressly prohibits. The law controls how often a debt collector may call you and what they can say during the conversation.
Here are some things that FDCPA does:
- 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 the time they had a conversation with you.
- The debt collector cannot contact you after you have told them to stop. If you told them in writing or verbally that they can no longer call you, they can only contact you to inform you that 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 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 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 they are 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 collection fees. The debt collector can only ask for extra money from you when the initial agreement between you and the original creditor explicitly authorizes it. 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.
FDCPA contains a private right of action. Congress expressly intended FDCPA to allow for compensation. You can and should make debt collectors pay the price for what they do to you. They contacted you intending to push you around and use 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 you will have in any civil case. You need to prove your case by a preponderance of the evidence.
Preserve Any Evidence of the Debt Collector’s Violation of the Law
You will still need proof that the debt collector violated FDCPA. If they made repeated phone calls, you can use your phone records as evidence. If you base your lawsuit on something a debt collector did or said, you need proof that they broke the law. An experienced FDCPA lawyer can document your claim so you can demonstrate that you deserve compensation.
Accordingly, save any evidence that you have that can prove your claim. Do not record a phone call with a debt collector unless your lawyer instructs you on how to do it legally. If you illegally record the conversation, you could face criminal charges.
When drafting your complaint, you do not need to gather evidence that the defendant intended to violate the statute. You only 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 cannot escape liability if they remain 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. Some consumer protection lawyers are very familiar with this particular law and 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 may hire sophisticated counsel to defend the case.
Estimate Your Damages to Seek in a Lawsuit
Then, you will need to quantify the damages that you have suffered. The FDCPA entitles you to statutory damages of up to $1,000 in your case. You can also seek 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 receive compensation for:
- Emotional distress
- Medical costs to treat your condition
- Embarrassment and humiliation
- Lost income, if you either lost your job because of what the debt collector did or your productivity from work suffered
These damages can add up depending on how the debt collector’s actions affected you.
Determine Where You Should File Your Lawsuit
One of your first steps is determining whether to file your lawsuit under FDCPA or state law. FDCPA only preempts state law to the extent that the two laws are the same. Some states have laws even broader than FDCPA, giving you even more of a chance of winning your case. These states may also not limit the damages you can receive. Finally, you can obtain punitive damages under state law instead of the statutory damages you may get under FDCPA.
The next step is to select the court with jurisdiction over your FDCPA lawsuit. The law says you can 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 need to sue them in a court where the conduct occurred.
Determine Who You Will Sue
You will need to determine who to sue in an FDCPA action. The law allows you to file an action against a debt collector.
Under 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 company you owed money to 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. FDCPA contains its 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 FDCPA violation. Questions may arise about when the statute of limitations begins to run, so 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 used the same tactics with others as they used with you. If numerous people have experienced the same harm, you can join together in a class action lawsuit. However, the debt collector will fight the class certification, potentially jeopardizing your case. Consult a lawyer about whether filing your lawsuit makes sense or becoming part of a class action.
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 overwhelming evidence is in your favor. Then, your attorney will negotiate with the debt collector to reach a settlement agreement. Most cases will not actually proceed to trial. The defendant often realizes the result can be far worse for them if they do not settle, so they make you a favorable offer.
You can and should fight to get what you deserve, knowing that the law is on your side if the case goes to court. Your attorney will handle the entire litigation process, attempting to settle the matter whenever possible. If a creditor will not budge, your attorney can persuasively present your case before the judge, who will decide who prevails.
You Do Not Need to Pay Out of Pocket for Legal Help
You may wonder how much it costs to seek legal help for an FDCPA case. Fortunately, the answer is nothing. A consumer protection attorney does not ask you for any retainer fee or upfront payments. Instead, they work for you on a contingency basis throughout your case. They only charge legal fees 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 the money that you will get. Thus, you face no risk when you hire an attorney.
At the very least, contact a FDCPA lawyer in California to discuss your case during a free initial consultation. They can advise you whether a creditor violated your rights under FDCPA.