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Author: Sergei Lemberg
Why Is It Important to Provide Evidence, Even if the Other Side Has It?
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General Rule: When you file a lawsuit, you have the burden of proof when it comes to proving a violation. As a result, it is your responsibility to submit evidence to the court.
In some situations, dealing with a collection agency can be overwhelming. This is especially the case if they engage in abusive debt collection practices.
If you find yourself in this situation, you can file a claim under the Fair Debt Collection Practices Act (FDCPA). However, it is your responsibility to provide enough evidence to prove your case.
In some situations, you may know that the collection agency has enough evidence to prove their own guilt. Why is it the consumer’s responsibility then? This article will help you understand the importance of evidence. In addition, you will learn why it is your responsibility to provide evidence in an FDCPA claim.
Understanding the Burden of Proof and the Importance of Evidence
Evidence is essential for any FDCPA claim you bring against a collection agency. Without evidence, you cannot win the case. That’s because the court would not have any information to confirm your allegations.
There are several reasons why you need to provide your own evidence in a court case. The primary reasons are as follows:
- Burden of Proof. You initiated the lawsuit. In doing so, you must provide sufficient evidence to justify your lawsuit. You have the burden of proof to show that the collection agency committed a violation. It is not their job, nor do they have the immediate responsibility to hand over evidence.
What if I do not have the evidence I need but the collection agency does? In that case, you will have the opportunity to request the information. You can make this request during the discovery process of the case. If a collection agency refuses to voluntarily provide the information, you can submit a subpoena for the evidence.
- Amount of Evidence Needed. In civil cases, you must prove by a preponderance of evidence that the collection agency committed the violation. This legal terminology means it is more likely than not that the debt collector violated the FDCPA. It is your responsibility to ensure that there is enough evidence for a court to come to this conclusion.
- Potential For Settlement. Many cases will be settled before going to trial. If you present an overwhelming amount of evidence, a collection agency is more likely to settle with you. This can lead to a quicker resolution of the situation.
The Importance of Evidence
Evidence is essential when you file a lawsuit. In addition, you cannot rely on the debt collector being forthcoming with any requests for evidence.
So, what type of evidence should you make sure you have? Below are a few examples of FDCPA violations and the type of evidence you should have.
| Violation |
Evidence |
| Addition of extra interest and fees not authorized by the original agreement. |
You can provide the court with your original agreement and past billing statements. You can also provide the validation notice. |
| Continuous threats of violence or legal action to coerce a payment from you. |
In a one-party consent state, you can provide a recording of the conversation. If they left a voicemail, this is additional information you can provide. |
| Calls to your home multiple times a day. |
You can provide the court with screenshots of your call log. If you sent a cease-and-desist letter, you can provide a dated copy of the letter. |
| A piece of mail that publicizes your debt to others. |
Save a copy of the envelope, postcard or other document that shows how the collection agency publicized your debt. |
Note: The process of gathering evidence is significantly easier with the assistance of a consumer rights attorney. They know what is needed to prove an FDCPA violation.
Conclusion
Under the FDCPA, you have a right to file a claim against a collection agency. However, you have the burden of proof in any lawsuit you file. That means submitting the necessary evidence to prove 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.
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