Tag Archives: FDCPA

Debt Collection Scam in Texas?

Consumer Complaint iStock_000004051547XSmallASK LEON 

Bankruptcy expert Leon Bayer answers real-life questions.

Hi Leon,

On Friday I received a call from a debt collector in Texas who said he was going to file an affidavit against me based on a loan I took out in 2006 and didn’t pay back. He told me to call a different phone number to make the payment. I called that number and the person who answered said I better pay up or they would get a warrant for my arrest. He said the account originated in California, where I used to live, but was transferred to the criminal office in Texas. I have not lived in California for at least six years. 

I don’t believe I owe the debt and asked for documents to validate the claim. 

Does this sound like a scam? If so, should I contact the local police department? Should I consider bankruptcy? 

Thank you, 

Patricia 

Dear Patricia, 

I think you handled this very well. I have lots of good stuff to tell you. 

Requesting Verification of a Debt 

The Federal Fair Debt Collection Practices Act (FDCPA) gives you the right to contest the validity of a debt and to demand documents to verify the amount, validity, and the collector’s legal right to collect the debt. (Learn more about the FDCPA, including what it requires and prohibits.) 

As of now, you don’t know if the person who contacted you is authorized to collect this debt or even if you ever owed it. You were wise to demand verification. However, in order to trigger the collector’s duty to provide you with documents backing up its claim, you need to put the verification request in writing. 

The collector is supposed to advise you of your right to demand verification of the debt within five days of its first communication with you. You have 30 days from that notice to send a written verification request. Once it receives your request, the collector is supposed to stop collection efforts until it responds. 

Of course I realize the debt collector won’t give you its address – so you can’t send the written demand. I believe the reason he won’t give you an address is to prevent you from giving the written notice demanding debt verification. 

I doubt this will ever wind up in court. But if it did, there is at least one California case saying that your verbal demand for debt verification is good enough. I am certain that no court would ever reward the deceitful, illegal behavior of this despicable debt collector by faulting you over the failure to give a written demand. Especially where, as here, the debt collector has deliberately concealed its location. 

The FDCPA Prohibits False Threats 

The FDCPA also prohibits debt collectors from lying to you and making false threats. Debt collectors do not have the power to get you arrested, so threatening to do so is a violation of the FDCPA.    

The Statute of Limitations Defense  

Assuming this is a debt that was made while you were living in California, you may have other legal protections as well. The debt could be subject to California’s statute of limitations. Under that law, a lender usually has only four years in which to file a lawsuit against you (usually the four years starts when you first defaulted on the debt). It sounds like a lawsuit to collect this debt may already be time barred. 

What to Do? 

I bet the debt collector already knows all of this. The collector wanted to scare you into paying before you could find out your legal rights. I have some advice: If the collector calls you again, tell him that you are recording the call. I’m certain you will either scare him off, or else force him to be civil and respond with legitimate information to validate the debt. 

If the collector ever does provide you with documentation, your next step would be to meet with a lawyer. A lawyer can advise you if the debt is still valid, and whether or not you should consider filing bankruptcy.  

In the meantime, you can also file a complaint about the debt collector with Consumer Financial Protection Bureau at www.consumerfinance.gov/complaint.

Sincerely,

– Leon

Leon Bayer is a Los Angeles bankruptcy attorney.  He is a partner at Bayer, Wishman & Leotta, a California law firm specializing in bankruptcy.  The opinions and advice in this blog post are from Mr. Bayer alone, and should not be attributed to Nolo.  By answering a question on this blog, Mr. Bayer does not become your lawyer.

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Supreme Court Says Prevailing FDCPA Defendant Can Collect Costs

In a recent opinion, Marx v. General Revenue Corp., the United States Supreme Court dealt a bit of a blow to consumers bringing lawsuits for violations of the federal Fair Debt Collection Practices Act.  The Court ruled that a prevailing defendant in a FDCPA lawsuit can collect costs from the plaintiff without proving that the plaintiff brought the lawsuit in bad faith or to harass the defendant.

Here’s what this all means.

FDCPA Lawsuits

The FDCPA is a federal law that prohibits debt collectors from using unfair, deceptive and harassing tactics while collecting debts. If you bring a FDCPA lawsuit and win, you can get damages as well as recover attorney fees, court costs, and other costs of bringing the lawsuit.

(Learn more about FDCPA lawsuits in Nolo’s Illegal Debt Collection Practices area.)

When the Plaintiff Loses a FDCPA Lawsuit

But what happens if you bring a FDCPA lawsuit and lose?  Can the defendant collect attorneys fees and costs against you?

The FDCPA makes clear that if the plaintiff brought the lawsuit in bad faith, or with the purpose of harassment, then the defendant debt collector can recover attorneys fees and costs.

However, a separate federal law, Federal Rule of Civil Procedure 54(d)(1) allows the court to award to a prevailing defendant (that is, a defendant that successfully defends the the case) the costs it incurred in bringing the lawsuit.

The question for the U.S. Supreme Court in this case was whether the FDCPA’s requirement that the defendant prove bad faith meant that FRCP 54(d)(1) did not apply.

Prevailing FDCPA Defendants Can Be Awarded Costs

The Court ruled that a court may award costs to a prevailing defendant under FRCP 54(d)(1). However, keep in mind:

  • the key word is may; the court doesn’t have to award costs and might not if it finds the plaintiff is indigent
  • this opinion applies to costs only; in order to get attorneys fees, the defendant must still prove that the action was brought in bad faith, and
  • costs can be more than just the court filing fee; costs may include deposition costs and other things associated with the lawsuit.

You can read the full opinion here:  Marx v. General Revenue Corp.