When it comes to filing a claim for violation of fair debt collections practices, it may be confusing on how to proceed. Most people are not well-versed in federal law, and not everyone feels comfortable handling these types of issues on their own.
However, is an attorney required to file an FDCPA claim?
We have asked a legal expert, attorney Alaina Sullivan, about what is needed to file a FDCPA claim. Here is what she had to say:
What is the Fair Debt Collections Practices Act?
The Fair Debt Collections Practices Act or FDCPA is a law within a law. Actually, it is a smaller section within the Consumer Credit Protection Act. This act was created to provide guidelines and ensure fairness in the collection of consumer debts. The entire act, specifically the FDCPA, provides these procedures to consumers and creditors, as well as debt collectors.
Specifically, the FDCPA makes clear what must be done to be able to collect on a debt and what must be provided to the consumer to ensure validity of the debt.
The FDCPA allows consumers to sue collectors who do one or more of the following actions while pursuing collections on a consume’s debt:
- Threaten or harass the consumer ;
- Make calls at what are considered “odd” hours, such as very early in the morning or after hours;
- Make false statements about the debts the company is attempting to collect;
- Make threats against the consumer when the debt collectors have no intent to file suit;
- Make threats indirectly by contacting friends and family members of the consumers;
- Contact other third parties who would have information about the consumer and reveal information about the money owed;
- Threaten the consumer that the debt collection company will file criminal charges and even jail time if the consumer does not pay on the debts involved;
- Continue to make collection efforts even though the consumer advised the company to stop;
- Make false or misleading statements in printed collection documents;
- Reporting inaccurate information about the consumer to a credit bureau; or
- Engage in any acts that would be prohibited by the act.
Step One: Notification to Stop Contact
The first step in these types of issues is to notify the debt collection agency that it is violating the FDCPA and must stop all contact immediately.
This notification needs to be done in writing, in the form of a letter requesting that the stop contact and detailing what activities have been committed by the debt collector.
This letter needs to go to the debt collection but also to the Federal Trade Commission. Is an attorney needed for this specific step? Arguably not. An average person can handle writing this letter without the assistance of an attorney, so long as the proper information is included.
It is recommended that the person also keep a copy of what is being sent for his or her records in the event the contact continues.
Once the debt collection agency receives the letter, the only contact it may have further with the consumer is to inform him or her that the letter has been received and to tell the consumer what actions it intends to take.
Filing Suit in State Court or Small Claims Court
If the debt collector continues to contact the consumer , then he or she has just cause to file an FDCPA claim against the debt collector in state court, as well as small claims court. If the consumer chooses to do this in state court, he or she is more than able to handle this independently.
However, it is not always recommended. Keep in mind that the debt collector will likely hire an attorney to defend him or her in court.
Normally the damages in this level are somewhat higher so the stakes are higher. It may be advisable to hire an attorney at this point, although it is not always required.
If the debt collector is successful in defending the defendant’s side of the case, the debt collector may pursue attorney’s fees for having to defend itself against an unsuccessful claim.
An attorney may be able to protect the consumer from this possibility.
If the stakes and damages are not so high, the consumer can file the case in small claims court, where damages are normally limited to a monetary value established, ranging from $5,000 to $10,000.
These types of law suits tend to be more accessible to clients who are not represented by attorneys, and for this reason, a judge may be more willing to hear the side of the unrepresented party, not requiring the strict rules of evidence and testimony that would be needed in state court.
An attorney is always able to assist in these cases, as well, but not by any means required.
Contact an Attorney Today
If you find yourself dealing with debt collectors and you are unsure of whether the debt collector has violated the FDCPA, it may be time for you to talk with an attorney about your situation.
Even if you choose to handle the matter yourself, 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