How to Sue Debt Collectors: Tricks and Traps

So you want to a sue debt collector? Suing debt collectors is not as easy as it sounds. There are numerous pitfalls and barriers that can trap unwary consumers.

The first issue to be concerned about when suing a debt collector or collection agency is whether or not you have a good case. Debt collectors frequently violate the law but many of those violations are merely technical and are not, by themselves, good legal claims. For example, debt collectors often fail to place the required “mini-Miranda” warning on written correspondence or fail to validate the debt at issue.   While these acts are violations of the Fair Debt Collection Practices Act (FDCPA) and do give you the right to sue debt collectors they are not particularly compelling and unlikely to lead to a high damage award since there is little to no actual damage for the collector’s failure.  Most consumer protection attorneys will not even take these types of cases due to the relatively low value compared with the high cost to litigate cases.

You also need to be sure you are suing a debt collector. The original creditor is generally not subject to the FDCPA and therefore can take many steps to collect debt that debt collectors cannot. There are laws to protect you from abuse by the original creditor but suing under those laws is more complicated and expensive than suing debt collectors under the Fair Debt Collection Practices Act.

Another trap is the bona fide error defense. Most, if not all, debt collectors will assert this defense like clockwork. It is generally asserted reflexively whether it actually applies or not but if the debt collector can prove its FDCPA violations were the result of a bona fide error it will not be held liable to you for those violations.

Another concern is that in many cases debt collectors will file counter-claims against you for the debt at issue. This is a powerful tactic and will keep many people from filing cases against debt collectors. Counter-claims may be difficult or impossible to overcome in many cases. There are ways to win on the counter-claim but unless the statute of limitations on the debt has run, the debt is fully repaid, or you never legally owed the debt in the first place you are likely to lose. Another problem with counter-claims is that the statute of limitations on an FDCPA case is only one year while the statute of limitations to collect the debt is almost always longer, depending on how old the debt is when the debt collection violations occurred.

There are numerous other issues to be aware of when suing debt collectors for unfair debt collection practices. To be certain you have a good case you should generally consult a consumer rights attorney. If you have a case worth filing they will typically take it on a contingency basis so you only pay if you recover an award and the fees you pay will come out of that reward. In addition to the probability of a higher award with an attorney representing you, there is also a tremendous amount of satisfaction in making an abusive debt collector pay for your attorney.

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