I recently read a disturbing article online that attempted to explain how the average person can and should file an FDCPA complaint against debt collectors under the Fair Debt Collection Practices Act. At the risk of offending the author—that is complete and utter nonsense.
Do Not File an FDCPA Complaint
You should never file an FDCPA complaint without representation by an experienced FDCPA litigation attorney. Filing an FDCPA complaint on your own is a tremendously bad idea. This is not a DIY project. Lawsuits are complicated, time-consuming, and expensive and you don’t have the experience, knowledge, or resources to prevail.
Indeed, there are so many pitfalls, tricks, and traps in Fair Debt Collection Practices Act lawsuits that it would be a miracle for even most seasoned lawyers to survive a motion to dismiss if they have no experience or training specifically with the FDCPA. Your chances are even lower. Like the elegant game of chess FDCPA lawsuits are complicated and require great strategy and cunning to prevail. Beginners simply cannot beat Grand Masters. That is probably why the article I read didn’t even attempt to show you the actual steps needed to file an FDCPA complaint.
What Violations are Grounds to File an FDCPA Complaint
Fair Debt Collection Practices Act lawsuits are based on complicated legal violations. It is not sufficient to simply read the statute, however. To conclude whether a collection agency violated the FDCPA requires extensive legal research and prior knowledge of the case law.
As an example, a typical consumer would assume that a debt collector violates the Fair Debt Collection Practices Act by failing to validate the debt when they request verification during a collection call. That is simply not the case. Debt validation is only necessary when you request it in writing and then only when the collection agency continues collecting. If the debt collector fails to validate the debt but stops collecting there is no need to provide the required validation under the FDCPA.
Verification is also only required if you request it in writing within the first 30 days of receiving the first communication with the debt collector. If you are outside that window, which frequently occurs when you hire cookie-cutter credit repair companies, your validation request is meaningless.
Moreover, what little information is actually needed to satisfy the verification requirement is quite small. Most collectors meet the requirement in their initial written communication with the debtor. Requesting verification of the debt with a debt validation letter is not the silver bullet it appears to be. In most cases the issue is a useless distraction.
There are numerous other examples where reading the statute without knowledge of the case law, regulations, and the unpredictable predispositions of your local courts, will lead you astray. Don’t pretend you have a case when you don’t. I cannot emphasize this enough.
FDCPA Violations Checklist
A checklist of potential Fair Debt Collection Practices Act violations is helpful in basic case screening but not sufficient to actually file a debt collection lawsuit for FDCPA violations. It’s not even close. Here are a few examples of FDCPA violations:
- Debt collectors are not allowed to call you at unusual or inconvenient times or places
- Debt collection calls at work are prohibited if the collection agency knows your employer does not allow collection or personal calls
- Threats of violence or harm are prohibited
- Obscene, racist, profane, or abusive language is prohibited
- Lies about the debt, the collection agency, or other important issues are not allowed
- Suing you in a place where you don’t live and didn’t sign for the debt violates the FDCPA
- Collecting fees or costs you did not agree to pay and that are not allowed by law can violate the FDCPA
- Lying about who they are or why they are calling can ground liability against the collection agency
This list is not exhaustive and the FDCPA violations listed therein are often not as simple as they sound. Each one has variables that must be met or overcome to ground liability. Consult an experienced FDCPA litigation attorney to help you determine whether any actionable violations occurred.
What is the Bona Fide Error Defense in FDCPA Lawsuits
Even if the collector actually violated the law repeatedly and carelessly it can completely escape liability for those violations. All it needs to do is prove the violations were the result of a bona fide error notwithstanding its policies and procedures intended to prevent that violation. This powerful defense is appropriately known as the bona fide error defense. It is a dangerous weapon when used against a consumer representing themselves or an inexperienced lawyer.
The bona fide error defense is difficult to defend against even with knowledge and experience. Nonetheless, the website that sparked this article was so bad it didn’t even discuss the bona fide error defense even though it would kill many debt collection FDCPA cases brought by consumers without an lawyer, if the cases even progress that far at all. Most consumer cases would be tossed out of court long before this powerful defense would even be necessary to resolve.
Do Not File an FDCPA Complaint with the Federal Trade Commission, Consumer Financial Protection Bureau, BBB, State Attorney General, or Anyone Else
I wish that horrible article ended there but it didn’t. Instead, it continued with the even more appalling and useless advice that you should file complaints with the FTC, CFPB, BBB, and your local Attorney General. This article would be way too long if I listed all the reasons why that is truly bad advice but it boils down to the two simple things. First, those agencies won’t help you. They won’t even try. Second, your damages could be substantial but you won’t get any damages with those agencies handling your complaint.
Seriously, there are plenty of examples of FDCPA damages awards and settlements in individual cases in the millions of dollars. None of those were obtained by the agencies the website advises you to involve in your case.
Potential Damages for Fair Debt Collection Practices Act Violations
Damages can be substantial in FDCPA lawsuits but you don’t have the experience needed to determine the proper value of your case. If you have little to no damages a good attorney can still get you up to $1,000.00 and the debt collector will pay his fees and costs. In rare cases you might be able to get that on your own but why would you do that if there is a chance you have thousands, tens of thousands, hundreds of thousands, or even millions of dollars in damages. On the other hand, representing yourself could result in you paying the debt collector’s attorney’s fees and costs. All they must do is win and then show you pursued your case in bad faith.
Attorney’s Fees and Costs are Mandatory Under the FDCPA
Under the FDCPA payment of your attorney’s fees and costs is mandatory if you prevail so most attorneys handle these cases on a contingency basis. That way you pay nothing directly. The attorney only gets paid from the debt collector when he wins or settles your case. Because of the mandatory nature of the attorney’s fees and costs plus the threat of an award against you for the collector’s attorney’s fees and costs, it should be obvious that hiring counsel is the least risky and most profitable way to proceed. Handling the case on your own could cost you a lot of money and there is simply no reason to take those risks when you can have free legal representation.
Hire an Experienced FDCPA Litigation Attorney
One other caution is warranted. There are numerous FDCPA lawsuit mills out there scooping up Fair Debt Collection Practices Act cases nationwide and they settle cases with no regard to quality or value. Stay away if you want to maximize the value of your case. Find a reputable attorney who actually litigates FDCPA cases and cares about quality and value over a high-volume of cases.
Any law firm that boasts about having tens of thousands of FDCPA lawsuit clients is a red-flag to avoid at all costs. They simply won’t care about you the way a true litigation attorney cares. Far too many cases with lowball settlements from these so-called “attorneys” pass through our courts. They are harming their clients, they are creating bad case law, and they are killing the value of their own cases.
I didn’t link to the original article that triggered this one as I truly don’t want to disparage the author even though all of his advice was dead wrong. You should never file a Fair Debt Collection Practices Act case on your own. You will lose and you will lose big. Even if you get the collection agency to settle you are probably losing a lot of money that an attorney could have squeezed out of the case.
Given the risks compared to the rewards there is simply no reason whatsoever to handle your own FDCPA lawsuit. Indeed, even the article that triggered this one failed to explain the actual steps to filing such a lawsuit. That alone shows you that even the author doesn’t actually believe his own advice. The reason for that is because these cases are far too complex and risky to handle on your own.
Hire a lawyer with experience handling high-value FDCPA cases. Don’t be low-balled by a national FDCPA lawsuit mill that cares more about the volume of their cases than the quality. Indeed, don’t take the risk of losing altogether by forging ahead alone. We can help. Call us now for a free case review.