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Author: Contributor: Sergei Lemberg
Can a Debt Collector Threaten to Sue Me?
Under the FDCPA, a debt collector may not threaten consumers. Threatening to file a lawsuit if a consumer does not pay is a violation of the FDCPA-except when it’s not a threat.
The simple fact of the matter is a debt collector can sue you. They can also warn you that they’re going to sue you if you do not make a payment. If you fail to make the payment and the debt collector follows through and sues you, it was perfectly legal for them to warn you of the consequences of not paying ahead of time. In this scenario, informing you that they planned on suing you was not a threat, it was a promise.
Debt collectors may only warn of an impending lawsuit if they are serious about following through. They may not use this as a coercive tactic to frighten consumers into paying, Although collectors do sue consumers, it is rare. It is not so rare for them to threaten to sue. If a debt collector has threatened to sue you repeatedly and has never followed through on the threat, this is not you being lucky-this is a violation of the FDCPA.
A debt collector may only tell a consumer that they are about to be sued under two conditions. The first, as discussed, is they must plan to follow through and sue. In that case, they are not threatening the consumer, they are warning them of impending legal action if they should fail to take steps to prevent it. Second, The Fair Debt Collection Practices Act (FDCPA) prohibits debt collectors from threatening to “take any action that cannot legally be taken.” In other words, the debt must be collectible.
A collectible debt is one that is within the statute of limitations. The statute of limitations varies in most states, but it tends to run from three to ten years. Once this period of time has ended, debt collectors may still attempt to collect the debt, but they cannot file a lawsuit to force you to pay back the money owed.
Knowing the statute of limitations of your debt is important, because some states will reset the statute of limitations if you acknowledge to a debt collector that the debt is yours. Never assume that an old debt cannot be rejuvenated and collected.
The takeaway from this is if a debt collector has been calling you repeatedly threatening and not following through with it, or it’s about an old debt, they may be in violation of the FDCPA.
About the author:
Contributor: Sergei Lemberg
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.
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