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Author: Sergei Lemberg
Will I have to appear in court during an FDCPA case?
![FDCPA Case Court Requirement]()
General Rule: Yes, if your case goes to trial you will have to appear in court. However, there are opportunities before trial to resolve your FDCPA case.
As a consumer, you have certain rights when dealing with a debt collector. For instance, they must provide you with certain information about your debt. Second, they must communicate with you fairly and professionally.
When a debt collector violates your rights, you can seek resolution under the Fair Debt Collection Practices Act (FDCPA). The FDCPA is a federal law that makes harassment, deception and other abusive debt collection practices illegal. You have multiple options when it comes to addressing a violation, including filing a lawsuit.
However, most are unfamiliar with how the process for filing a lawsuit under the FDCPA works. A recurring question is whether a lawsuit will require them to go to court. In this article, you will get a better understanding of when you may have to go to court and ways you can avoid this.
When Can You File an FDCPA Claim?
The first question is whether you can file an FDCPA claim. You can make this determination by answering a few questions. Those are as follows:
- Does the issue involve a third-party debt collector? The FDCPA only applies to third-party debt collectors, not the original creditor.
- Does the issue involve a personal or business debt? The FDCPA only applies to personal debts. Some examples include credit cards, past due rent, medical bills and mortgages.
- Was there a violation of the FDCPA? The FDCPA protects against various abusive debt collection practices. Mainly, FDCPA violations involve some form of harassment or deception. This can be anything from excessive calls to misrepresenting the amount of debt you owe.
- Did the violation occur within the past year? The FDCPA requires you to submit a claim within 1 year of when the violation occurred.
If you meet the requirements of these four questions, you can file an FDCPA claim.
Can a Case Get Resolved Before I Have to Go to Court?
Yes, it can. When you file a lawsuit it does not immediately go to trial. Before the actual trial date, there is time for an FDCPA case to get resolved. Here are the two primary ways this may occur:
- Settlement. A settlement may benefit either party. There is always uncertainty when a case goes to trial. Even if you believe you have convincing evidence, a judge may disagree.
Or they may disagree with you on the amount of damages you suffered. By settling the case you can have a certain outcome without the stress of having to appear in court.
- Summary Judgment. If the initial evidence proves a debt collector’s guilt a court may issue you summary judgment. When a court issues you a summary judgment it awards the case in your favor without having to go to trial.
Of course, there are other ways you can resolve a case that may help you avoid appearing in court. You can try these options before you file a lawsuit or while one is pending:
- Send a Written Demand. You can write directly to the debt collector to demand they stop the illegal activity and compensate you for any loss. Depending on your situation they may be receptive to resolving your issue without having to go through the courts.
- Submit a Federal Complaint. You may also receive assistance from federal agencies tasked with regulating debt collectors. The first is the Consumer Financial Protection Bureau (CFPB). The second federal agency you can submit a complaint to is the Federal Trade Commission (FTC).
Note: Having an attorney represent you will increase the likelihood of resolving your case without having to go to trial. A debt collector is more likely to consider resolving a case if they know it is being handled by an FDCPA attorney.
Conclusion
If you suffer a serious or ongoing violation of the FDCPA, you may need to file a lawsuit. Whether you go to court or not will depend on your case and the debt collector’s willingness to settle.
However, you do not have to be anxious about the possibility of going to court. This is especially the case if you hire a consumer rights attorney to handle your case. They can answer any questions you may have and advise on the best options for resolving your case.
Additional Resources
About the author:
Sergei Lemberg is a consumer rights attorney, practicing since 2006, whose practice focuses on consumer law, class actions and personal injury litigation. He is known for a United States Supreme Court case (Facebook v. Duguid) defending consumers from autodialers under the Telephone Consumer Protection Act of 1991 to send unsolicited text messages. He is also the author of Defanging Debt Collectors, a book that teaches consumers how to battle debt collectors and win.
See more posts from Sergei Lemberg