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Can the FDCPA Help You Escape This Debt?

houdini-in-cuffs-resized-600Carlisle Law Firm helps people escape debt by finding FDCPA violations in  a.) legal pleadings filed in court, b.) collection calls; and c.) collection letters.

What is the FDCPA? The Fair Debt Collection Practices Act is a federal law that tells “debt collectors” what they can and cannot do or say when collecting a consumer debt.

What is a “debt collector”? In most cases, a “debt collector” is someone collecting another person’s debt. This includes collection agencies and debt buying companies. These companies are usually described as the “assignees,” “transferrees” or “successors in interest” to some other bank or financial institution that actually loaned you money. Debt collectors are either being paid by a bank or creditor to collect, or, they paid a bank or creditor for the right to collect money from you.

What if I know the debt is mine? Violations may exist regardless of whether the debt is valid. The main focus is on how the debt is being collected, not whether a debt is owed.

What if they already have a judgment? It doesn’t matter. We have handled many claims against debt collectors arising out of garnishments, post-judgment discovery and other collection attempts.

Do I have an FDCPA claim against the debt collector? All cases are different, but, some of the common violations involving attorneys and lawsuits are shown below:

15 USC 1692b(6) states that “after the debt collector knows the consumer is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorney’s name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the debt collector.”

Debt Collectors and their lawyers often violate this provision by sending letters and making phone calls directly to debtors who are represented by attorneys.

15 USC 1692e(2)(A) prohibits the false representation of the character, amount, or legal status of any debt.

Examples of violations include alleging one amount in the complaint and another amount in exhibits attached to the complaint; alleging that a debt is comprised of “principal” where it clearly includes unknown amounts of accrued interest and fees; or alleging that a debtor entered a written contract with one company, when it was actually with another.

15 USC 1692e(5) prohibits threats to take any action that cannot legally be taken or that is not intended to be taken.

This provision includes not only threats to take unlawful action, but unlawful action that was actually taken. One example is filing a lawsuit after the statute of limitations expired, or a debt collector suing on a debt it does not own or a debt that is not actually owed.

15 USC 1692e(8) prohibits communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

Consumer debtors should compare their credit report to the allegations of a lawsuit. There are often discrepancies between relevant dates and balances applying to the account that may constitute violations.

15 USC 1692e(10) prohibits the use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

This catch all provision is very broad and can encompass all manner of communications made in legal pleadings. Debt collectors who make certain claims in their complaint, often have to admit that those claims were untrue, or that they lack information or documents to support their claims once the case enters the “discovery” phase.

15 USC 1692e(15) prohibits the false representation or implication that documents are not legal process forms or do not require action by the consumer.

Many debt collectors send legal documents to clients that, once signed, act as an admission of liability and the loss of all legal rights by the debtor. Depending on the content, these forms can give rise to FDCPA claims.

15 USC 1692f states generally that a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.

This provision is also very broad. It has been applied by courts to punish debt collectors for filing suits in bulk, regardless of whether they have knowledge or proof of the validity of the debt, since most cases are not properly defended by debtors.

15 USC 1692f(1) prohibits attempts to collect any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

Debt collectors often ask for dollar amounts that could only be authorized by the terms of a written contract, but, they either don’t have the contract, or don’t know if they have right contract.

15 USC 1692i states that any debt collector who brings any legal action on a debt against any consumer shall bring such action only in the judicial district or similar legal entity in which such consumer signed the contract sued upon; or in which such consumer resides at the commencement of the action.

This provision of the law protects debtors against finance contracts with tiny print that allows creditors to file out of state lawsuits against you to collect debt. But, it also applies to the counties within the state you live. If you are sued in one county, when you live in another, you probably have a claim.

If you are dealing with a debt collector that has threatened to file, or has already filed a lawsuit or garnishment action, we want to help. Please submit the information below for a free and thorough assessment of your situation.

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