After meeting with an attorney to discuss a possible fair debt collections action and making the decision to pursue a lawsuit, the first step a debtor will need to take is to put together the case.
He or she will need to prove that a violation of the law regarding debt collections has occurred and that he or she has been damaged as a result. It is for this reason that an attorney will likely send the client/debtor home with some homework before officially filing the case.
We have asked attorney, Alaina Sullivan, and here is what she had to say:
The Fair Debt Collections Practices Act
The Fair Debt Collections Practices Act (FDCPA) was enacted into law in 1977 with the purpose of protecting debtors from unfair and unethical debt collection practices of third-party debt collectors.
These companies are normally hired by the original creditors who extended the loan or line of credit to the debtors to collect on past-due financial obligations. The FDCPA was included within the Consumer Credit Protection Act and outlines specific rules debt collectors must follow when collecting upon a debt.
If the debt collector violates any of these rules, the debtor has the right to bring a legal action against the entity for damages sustained.
Information Regarding the Debt Collector
One of the most important things the debtor needs to provide the attorney is proof of who is doing the harassing. The FDCPA protects debtors against unfair debt collection practices of third-party debt collectors, not the original creditor.
The original creditor is someone who was part of the transaction that happened between the debtor and the creditor where money was given or lent. Therefore, the debtor will need to provide information and proof to the attorney that the person contacting the debtor is actually a third-party debt collector.
List of Illegal Behaviors
The debtor will need to provide the debtor with a list of what exactly the debt collector has done to the debtor. These behaviors can include contacting the debtor at odd hours, using threatening or abusive language when communicating with the debtor.
That includes making threats to file a lawsuit or criminal action against the debtor, contacting third parties who are connected to the debtor in an effort to get information on the debtor, and continuing to contact the debtor at his place of business after being told to stop doing so.
The attorney will need more than one simply incident but rather at pattern of behavior. The more incidents the debtor can remember and write down, the better.
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Proof of the Behavior
It is helpful if the debtor can provide more than just a statement to the attorney saying that the behavior happened. The attorney will need hard proof of the communication, including call logs showing the continued calls, hard copies of letters or emails from the debt collector, and any other communication that could be submitted as evidence to the court at a later date.
If any witnesses are available who have personally witnessed the behavior, the attorney will need their contact information, as well.
Proof of Damages
The debtor will not only need to show that the he or she was damaged. A debtor is entitled to statutory damages in the amount of at least $1,000 in an FDCPA case. However, if the debtor is claiming that he or she has been damaged due to physical or emotional distress sustained as a result of the behavior, the debtor will need to provide proof of this distress.
That includes medical bills paid needed for treatment because of the distress. If the debtor is seeking lost wages, he or she will also need to provide proof that wages were lost. More importantly, the debtor will need to give the attorney some sort of hard proof that these damages are, in fact, connected to the behavior.
The other side will try to poke holes in the debtor’s case and argue that the damages were sustained due to something else or were not directly related to the behavior. Essentially, the attorney will want something to help fight this defense, if raised.
Contact an Attorney Today
If you find yourself dealing in the middle of stressful debt collection proceedings and you have questions about what to expect, it is recommended you talk to an experienced attorney. An attorney can listen to the facts of the case and can best advise you on how to proceed.
Contact an attorney experienced in fair debt collections proceedings to schedule a consultation today.
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