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Seeking Validation When a Lawsuit is Filed

On Behalf of | Oct 1, 2012 | Consumer Protection

It often happens that a person is served court documents informing them that they have to go to court because a creditor claims that they are owed money.  The common initial reaction is for the consumer to ask what this is about and want to talk to the creditor or the lawyers that filed immediately.  Sometimes the consumer will make a demand over the phone or send a letter to the creditor or lawyer demanding some verification as to where the debt is from.  Not surprisingly, those requests are ignored.  The consumer is left to wonder what to do to find out about this debt, and then, not reacting properly to the lawsuit, has a judgment entered against them.  So one wonders, what is a person to do in this situation when they want to get validation of the debt?

The Fair Debt Collection Practices Act provides a statutory scheme for a consumer being met with a debt collection to obtain the validation they need.  The FDCPA states that within 5 days after the initial communication with a consumer in connection with the collection of any debt, a debt collection shall send the consumer a written notice containing (1) the amount of the debt (2) the name of the creditor to whom the debt is owed, (3) a statement that provides the consumer information on how to dispute the debt and seek validation in writing from the creditor. (15 U.S.C. §1692g(a))  This is, however, the ONLY time a debt collector has to provide a validation when asked by the consumer.  That is, to be clear, a consumer only gets validation when making the demand in writing within 30 days after receiving a letter that advises them they may do so.

What happens to our consumer facing a lawsuit that does not receive that letter?  How can they get validation? Here are two ways to play this out:

1)  Go the court route:

Many people are intimidated by litigation and court.  That can be understood.  It is a place for lawyers and judges and when you are not one of them, you are a fish out of water in that courtroom.  However, you can make the system work for you.  Read the summons.  It is a very important document that will tell you the proper way to answer the complaint.  You may have to file a written answer with the clerk, or you may have to just appear.  Either way, a failure to comply with the directions on the summons will most certainly end up with a judgment being entered.

Once you have properly answered, you will likely be given a court date.  In court, each party is entitled to discovery – that is, to learn about the claims or defenses being brought forth.  A simple request in court may be all that is needed.  Otherwise, one should (if not armed with an attorney) review the local court rules for how to issue discovery requests and obtain the documents.  It is important to remember that when a creditor files a case against a consumer, the filer – the creditor- has the burden of proof.  They cannot hide their proof from the consumer.  They have to turn over what they will be presenting in trial.  So simply asking for that would help.
2)  Force the Validation letter issue:

As stated above, the debt collector (which includes lawyers collecting debts) must provide you with a specific notice within 5 days of their first communication with you.  The lawsuit itself is not considered a communication with the consumer under the FDCPA.  However, a phone call from a consumer is considered a communication.  Thus, it would be wise to call the collector/lawyer that filed the lawsuit.  Contact the collection lawyer and ask what the debt is about.  Make sure to mention very clearly that nothing has ever been received by mail before this lawsuit.  Ask if they will be sending you something in the mail.  Whether they plan on it or not, they are supposed to at that time.

If and when the letter comes in the mail, the consumer has 30 days to demand validation.  Once the request is made, the collector cannot go on collecting the debt (that is, they cannot prosecute their lawsuit) until the debt is validated.  On the other hand, if the collector fails to send anything in writing, then they may have run afoul of the FDCPA which may entitle you to up to $1,000 in statutory damages plus attorney fees and costs.

When you’re being pursued by debt collectors, you have rights,  and we’re here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005.  If you feel that you’re rights have been violated, please contact us for a free case review.