While we all do our best to pay our bills in full and on time, and all things being equal we do; sometimes that is just not an option, and some bills go unpaid. It could be that we don't have the money to pay them, or we honestly don't believe that we should have to because we didn't get what we bargained for, or maybe we just never knew about a debt because someone else incurred it by employing identity theft.
Whatever the reason, many people end up with unpaid debts, some large, some small, some valid, others fraudulent. If a debt goes unpaid for long enough, you will likely start receiving calls from debt collectors, and you may even end up being sued in what is commonly referred to as a debt collection case. If either of these things happens to you, there are some things you will want to know that can help you past the situation.
The first thing you should know is that you have rights that must be respected by anyone attempting to collect a debt from you. Many of these rights are contained in a Federal law called the Fair Debt Collection Practices Act. There is also a California law known as the Rosenthal Fair Debt Collection Practices Act, which provides even greater protection for debtors, and in some cases may even make it worthwhile to sue the debt collector if they violate the law.
The next thing you should know is that there are a number of different defenses to a debt collection lawsuit if one is brought against you. Just because someone claims that you owe money and need to pay, it doesn't necessarily mean that they are right and you do.
Finally, you should know that you can get help defending yourself in a debt collection case, or in getting protection from harassment by debt collectors. While there are some cases where it is just not feasible to hire an attorney to represent you, in many cases it makes good practical and financial sense to hire an attorney to defend you and help you avoid having to pay a debt that you are not legally required to pay, reduce the amount of the debt or to put an end to harassment by debt collectors. In certain cases, depending on whether the debt collector violates the law while attempting to collect a debt from you; a Court may order the debt collector to pay your attorney fees. If you find yourself being sued for the collection of a debt, or are being harassed by debt collectors, getting someone to represent you may be just what you need to solve the problem.
Federal Law - Fair Debt Collection Practices Act:
The Fair Debt Collection Practices Act, or the FDCPA, is a federal law that limits what a collection agency can do when attempting to collect a debt, and in particular prohibits abusive practices from being used. It does not apply to individuals or businesses other than a collection agency who may attempt to collect a debt.
One of the major features of the FDCPA is that debt collectors are prohibited from calling people during what are considered to be inconvenient times. Typically, they may only call during the hours of 8:00 a.m. to 9:00 p.m.. Debt collectors are also prohibited from calling people where they work, provided that the person informs the debt collector, in writing, that they do not want to be called at work.
Under the FDCPA, debt collectors are also limited in the things they can tell someone from whom they are attempting to collect a debt. They may not harass the person, may not threaten harm or arrest and may not threaten to sue them. They can, however, inform the person that they intend to sue them, if they actually intend to do so.
If a debt collector violates the FDCPA, the debtor may sue the debt collector, and recover the amount of any actual damages they sustained, plus an additional amount of up to $1,000.00. In addition, reasonable attorneys fees may be awarded. If, however, the debt collector wins the case, and the court determines that the case was brought in bad faith in order to harass the debt collector, the court may award attorney's fees to the debt collector.
California Law - Rosenthal Fair Debt Collection Practices Act:
In addition to the FDCPA. there is a California law that provides additional protection against debt collectors. This law is commonly referred to as the Rosenthal Fair Debt Collection Practices Act, or RFDCPA. It applies, typically, only to consumer debts, not anything that could be considered a commercial debt.
The RFDCPA is broader than the FDCPA in that is applies not only to collection agencies, but also any person or business who attempts to collects consumer debts as regular part of their business (e.g., a business aimed at consumers with a dedicated accounts receivable department.) It also covers businesses that sell forms or tools used in debt collection. A separate part of California law also extends the protections of the RFDCPA to attorneys and their staff who are engaged in debt collection.
Much like the FDCPA, the RFDCPA prohibits harassment by debt collectors. These are things such as calling repeatedly, using profane language or calling early in the morning or late at night. Additionally, debt collectors are required to identify themselves, protect your privacy and may not call from restricted numbers. Debt collectors are also prohibited from misrepresenting who they are, such as claiming to be a law office when they are not. They may not give the appearance of having governmental authority, if they do not (which they never would.) Debt collectors also cannot threaten to report you to a credit reporting agency, or sue you in court, unless they actually intend to do so.
Much like the FDCPA, the RFDCPA allows debtors to sue debt collectors in court if they violate the law. The damages that can be awarded are much the same; actual damages suffered plus $100.00-$1,000.00 and reasonable attorney fees. However, under the RFDCPA, a debt collector is generally given a period of 15 days to cure any violations of the RFDCPA before they can be held liable for violations.
Common Defenses to Debt Collection Claims:
If you find yourself being sued for the collection of a debt, there are a number of defenses that may be available to you. Some defenses may only serve to reduce the amount of the debt you can be sued for, some provide what is called a complete defense, so that you will not have to pay anything. Other defenses are simply unavailable, depending on the facts and circumstances of your case. In order to know what defenses may be available to you, it is usually best to at least consult with an attorney. Some of the most common defenses to debt collection cases are:
- Statute of Limitations - Debts do not last forever. From the time you fail to make a payment on your debt, and assuming that you don't make any payments at a later date; once four years pass (one year in the case of an oral contract,) the statute of limitations runs out, and you cannot be sued for collection of that debt. However, the statute of limitations will not prevent the debt from appearing as unpaid in your credit report;
- Improper Service - If you are not properly served with a lawsuit, then the case cannot proceed against you. In many cases with improper service, you will not find out about the lawsuit until it is over (e.g., the lawsuit was served at an old address.) If that happens, and less than 6 months in most circumstances, and in no more than 2 years under any circumstances, have passed, you can get the judgment against you removed. This will not prevent the lawsuit from proceeding again once you have the judgment removed, but will provide you with the opportunity to defend yourself;
- Violations of the FDCPA or RFDCPA - This is not a defense to a debt collection case so much as a way to reduce the amount of money you owe. If a debt collector violates one or both of those laws, you can bring a cross complaint against them, and seek an award of damages and attorney fees, which if successful, can reduce the amount of the debt and cover some or all of your costs in defending the lawsuit.
- Identity Theft - If you can show that the debt for which you are being sued was not your to begin with, such as by showing that your identity was stolen and the thief incurred the debt; then you cannot be held liable for the debt.
- Bankruptcy - If you previously filed for bankruptcy, and the debt for which you are being sued was discharged in that bankruptcy proceeding, you no longer owe the debt and cannot be sued in order to collect it.
How We can Help:
If a debt collection case has been filed against you Foos Gavin Law Firm can help. Our process is simple. We file an answer telling the court that we dispute what the collector says. We then demand the collector provide documentation of the contract, charges and fees. If they are unable to provide the documentation, the case must be dismissed. All that is needed is an attorney who is willing to defend you.
Do not wait until it is too late. Whether you’re being called endlessly by harassing collectors, you’ve been served a summons, or your wages are already being garnished the best advice is to take action now. Contact Foos Gavin Law Firm now. In a free consultation one of our consumer attorneys can tell you where you stand, how worried you need to be, how quickly you need to take action, and can quite possibly relieve some of your stress.
Do not go it alone and hire an attorney. I urge you to consult with one of our consumer attorneys. There are subtle but definite advantages to having legal representation. Our consumer attorneys fight these battles day in, and day out. We can advise you on the best and worst case scenarios based on our experience.
Please do not assume you cannot afford an attorney. In a FREE consultation our consumer attorney will discuss our surprisingly low rates with you.
Always file an answer. By simply filing an Answer in court, you can extend the time before any judgment may be entered against you. Debt collectors and their attorneys are successful because they go after the easy targets. It is possible that once they see you are going to put up a fight and have hired an attorney to fight for you, they may just move on and/or are much more likely to accept a favorable settlement.
Be open to settlement. Collection agencies buy bad debts in bulk from creditors and other agencies for pennies on the dollar owed. Therefore, they may be willing to accept a fraction of the original debt in a lump sum to resolve the issue. This is particularly true when negotiated by an attorney.