August 12, 2012

Suing Debt Collectors

Suing Debt Collectors.
We have made hundreds of thousands of dollars litigating cases against abusive debt collectors. This company wiki describes the process. Please add to these pages as necessary.

The Complaint.
The complaint is not a simple document. In addition to the sample complaints, I suggest reading our possible counts document available here. This document outlines a variety of creative counts we have previously used in consumer cases. I would love to see you add to this document in the future. Finally, I would suggest reading two very important recent supreme court cases addressing the form and content of complaints. The first is Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and the second is Ashcroft v. Iqbal, 556 U.S. 662 (2009). Stanford did a nice overview piece I would recommend reviewing: available here.

Prior to reviewing the possible counts document mentioned above, you may wish to consider some of the key issues by reviewing the creditor harassment matrix. The matrix is available available on the Dropbox server.

When reviewing FDCPA/ TCPA it is helpful to categorize cases as one of the following four types:

Case Type 1- 1st party to a home phone.

Case Type 2- 1st party to a cell phone.

Case Type 3- 3rd party to a home phone.

Case Type 4- 3rd part to a cell phone.

Service of Process.
If the collector is registered in state they will often use one of the professional service agents in the area. If this is the case we will always use personal service right our of the gate. If the agent is out-of-state or prohibitively difficult to efficiently serve and there are no issues with the statute of limitations we will use service by mail. For difficult service issues consult the personal service matrix.

Low income debtors.
In addition to in forma pauperis, low income clients are eligible for free mediation services. We should always take advantage of these services regardless of the proposed value as we will drive up costs on the defendants.

Negotiations.
The first defense to a TCPA claim typically involves the defendant’s attorney asserting that our client had a “pre-existing business relationship” or consented to be called when they put their number on the credit application. The response to this assertion is that we agree there may have been consent (where applicable), however, our client subsequently and unequivocally revoked consent.

Discovery.
Formulating Discovery Questions.
Formulate discovery questions with an eye towards trial and summary judgment. Requests for admission should be a list of the facts you must prove at trial in order to prevail. Ask yourself, “What are the elements I need to prove?”

Responding to Discovery Questions.
Responding to discovery should be a fairly simple process. Do not get overwhelmed. Sample discovery answers.

Pre-Trial.

Non-Licensed Collectors.
Negotiations should begin by noting that we will report agencies conducting business in this state without a license to the SOS and attorney general. The collector may be liable for damages if the attorney general takes action.

Other Resources.

Westlaw – FDCPA text with Notes of Decisions and other resources. Available here.

Westlaw – TCPA text with Notes of Decisions and other resources. Available here.

AmJur FDCPA topics. Available here.

AmJur Proof under the FDCPA. Available here.

Leave a Reply

Your email address will not be published. Required fields are marked *