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How to Sue Debt Collectors

Now that you are aware of what happens when debt collectors violate the FDCPA [3] and you have some recorded phone calls, credit reporting violations, and false or misleading statements by a collector, what do you do then?

You sue them.

Nothing gets a company’s attention like slapping them with a lawsuit. As the saying goes, it’s all fun and games until someone gets sued.

From here, you have two choices and both will take you to the courthouse:

I’ll explain both.

Retaining A Lawyer

If you retain a lawyer, the standard agreement is for the lawyer to take the case on contingency. That means they only get paid if you win or settle. If they are unwilling to work on contingency, at worst you would have an agreement that you pay the $350 filing fee and then the attorney takes the rest of the case on contingency. The typical settlement is around $3,500, so you can expect to pocket an easy $1k with the lawyer taking the balance. Usually, you’ll file the case in Federal court, which means the case will get resolved in 2-3 months.

When selecting a lawyer, you can’t just go with any lawyer, you will want a lawyer experienced in consumer law. They could be great at drafting wills and personal injury cases, but they likely have never seen a consumer law case in their career. In fact, the better the lawyer is, the less likely they are to have any clue about consumer law. There are a few good lawyers out there who do have consumer law experience, and you just have to shop around and find them. Check out the National Association of Consumer Advocates [4] (NACA) for a lawyer in your area.

Why Suing Works

Debt collectors are terrified of lawsuits because a single lawsuit can cost tens of thousands of dollars in legal fees. If they lose the case, not only do they lose their own costs for defending against the lawsuit, they have to pay the attorney’s fees for both the defense and plaintiff as well as the judgment. Many of the smart companies would rather pay you $5,000 once as a settlement and be done with it. Collectors are in a high volume, low margin business and will have to collect on a lot of accounts to recover a $3500 average cost of settlement. (Getting sued a lot tends to drive up a collector’s insurance premiums too!)

Consider the response to a Forbes article by a Joel Lackey, President of National Credit systems who wrote regarding FDCPA lawsuits:

“The number of these suits has increased dramatically over the past few years, and the merit of these suits are typically laughable with absolutely no damage suffered by the debtor. The primary reason for this is that attorneys have become aware of the fact that a third-party debt collector cannot win when sued. It is simply a matter of how bad you are going to lose. Even if you win in court, you have lost big-time in that it will likely cost you tens of thousands of dollars to prove your case.

Let’s see, settle for $4,000 even though you did nothing wrong and the charges against you were completely unreasonable or fabricated, or roll the dice to prove your innocence and spend $30,000 in the process. That is, $30,000 if you win, and by the way, you will have no meaningful chance of recovering any of your costs.”

You Must Have A Case

I am not suggesting you fabricate a lawsuit because, quite frankly, you won’t have to. If a collector is going to violate the FDCPA, they will do it early and often. If you have documented violations, particularly recorded phone calls, you have a very solid case and I wouldn’t be shy about running with it.

This is also defensive strategy. If you are sued by a debt collector who has violated the law, counter-sue and watch them offer to pay you to drop the entire matter.

Debt collectors are so scared of being sued that they are creating databases to track people who counter-sue and actively avoiding them. Take a look at WebRecon.com [5] and National FDCPA Litigation Tracking Resource [6].

Do It Yourself Lawyering

If you can’t find a suitable lawyer or you don’t want to split the potential winnings, you may need to take the case on your own. I recommend Federal court vs. state or small claims, because the judges in the lower courts are generally not familiar with the laws and court rulings in question. Plus, you don’t want it to be a first time for both of you.

Each federal court has a free pro-se litigant manual that includes sample forms, flowcharts, and explanations of the legal terms you may hear. If you have the time to invest in it, give it a shot, you may find it is worth your time in the endeavor. It will be a time investment to become familiar with everything so take that into account. Also, many of the lawyers representing the debt collectors do not respect pro-se litigants and may try to talk down to you. Take advantage of forums like Debtorboards [7] for advice, that’s where other litigious consumers hang out and are more than willing to provide some assistance.

In reality, going without representation can be a blessing and advantage, since you don’t have to worry about legal bills, caseloads, and you don’t have to settle for a quick settlement. You can wait for a bigger payday, as the side faces a growing mountain of legal bills. Lawyers tend to want to go for the quick buck and the low hanging fruit and tend to overlook suing the individual employees and such.

Do you have any experience with or read stories about people successfully suing debt collectors?

(Photo: umjanedoan [8])