Do's

Do Validate As Soon As Possible

After you receive an initial written notice of debt collection from a collection agency or attorney (CA), you legally have 30 days to send a debt validation (DV) letter. If you don't send a DV letter within the 30-day validation period, a CA is neither required by law to validate a debt nor stop collecting the debt.

Do Be Organized, Keep Every Document, Always Send Mail Certified Mail with Return Receipt

Your best offense or defense in a court of law is keeping all documents sent to and received from a CA. Cases are won or lost on evidence, which in the case of FDCPA violations, it boils down to documentation. Winning is not a matter of a well delivered argument to coerce a judge or jury that you are right and the CA is wrong. It comes down to only the evidence. Was the FDCPA violated or not, and this is established with documentation... letters sent to you or by you, and documented phone calls. So, simply set up a separate folder for each collection you are disputing, and put all related documents in the folder.

When you mail your first DV letter, send the letter via 'certified mail return receipt' (CMRR). Sending your letter via CMRR will cost you a small fee, but will make sure that the collection agency received your DV letter.

Do Use an Affidavit of Mailing to Send Your DV Letter

To further establish as evidence the date and fact that you sent the debt collector a DV letter, it's a good idea to have someone else mail your DV letter along with an "Affidavit of Mailing". This signed and notarized affidavit by a third party will firmly establish your evidence of mailing the DV letter. While using CMRR establishes that the CA received your letter, it doesn't confirm what the letter was. After all, you could have sent them a birthday card and claim it was a DV letter. In court it would be your word against the CA's. A signed and notarized Affidavit of Mailing by another person solves this issue.

Do Dispute the Collection Account With the Three Credit Reporting Agencies

Take advantage of the FDCPA and clear this derogatory item from your credit report. Remember, a CA cannot verify that an item is yours in response to a verification request from a credit reporting agency (CRA). If they do verify that you have this collection, then they are in violation of the FDCPA as attempting to collect a debt without validating the debt first in response to your DV letter.

You should wait about 5 days after sending the DV letter to the CA, then send a letter to the CRA's (Trans Union, Equifax & Experian) disputing this collection. The CRA's have 30 days to verify with the CA that the collection is being reported accurately. If they don't hear from the CA within this time frame, the collection will be deleted from your credit report. If they do verify it with the CA, this is a violation on the part of the CA and you can sue them for $1000.

Do Sue the CA if They Violate the FDCPA in Any Way

CA's are notorious for violating the FDCPA. After receiving a DV letter, a CA might: call or write to collect the debt, send you a summons and complaint for judgment (sue you), or verify your account to the CRA's Each of these are violations of the FDCPA and with proof, you can sue and win $1000.

Don't be afraid to sue a CA. It may appear intimidating and probably is if you go it alone. Spend the $300 - $400 to hire an attorney and go after the CA. Remember, you should have a well documented, winnable case that you can have an attorney review (usually for free) before you hire him/her anyway. In fact, the attorney may take the case on contingency, meaning that they will accept payment from the award. This is even better because you don't have to come up with any cash to retain them. Also, the attorney will make sure you and he get paid from the CA after the judgment is awarded to you.

Taking an 'offensive' approach is always better in lawsuits than playing 'defense'. With the information we provide our members in this web site, you should be able to build a strong winnable case. Moreover, by taking the CA to task demonstrates several things. First, you are posturing as someone that the CA will have to watch his P's & Q's with. More than likely, he's going to probably want to avoid any future involvement with you. Second, you are posturing for any future possible litigation. By disputing the collection activities of the CA you position yourself for a strong 'affirmative defense' in the event that you are sued later for this account by this CA or a future one.

Do Consider Settling the Debt if Possible

If you have the cash, and if an acceptable settlement discount is offered by the CA, you may want to bring this collection issue to a close, and just "settle the debt for less". Basically, this is paying an agreed upon lesser amount for the debt in exchange for it to be considered "paid in full". There are pros and cons to doing this and you may want to review the section of our library labeled "Debt Settlement" for a complete explanation of how it works.

 

Don'ts

Don't Use the Words "Cease and Desist" in a DV Letter

If you send a DV letter to CA and ask them to 'cease and desist' in any context, they will likely comply by ceasing and desisting and not sending validation. If it goes to court, they will probably tell the judge they were complying with your instructions to cease and desist. They could argue that by ceasing and desisting, they were not legally obliged to validate. Don't cheat yourself out of catching them in one or more violations.

Don't Represent Yourself in Court

In a lawsuit you find yourself either in small claims court or in civil 'large claims' court. The amount of the judgment being sought will determine the court jurisdiction. While each state is different in this amount, a suit of $1000 is almost always handled in small claims court.

If you are suing a CA in small claims court, while it is definitely easier to represent yourself, it is still unadvisable. Presenting your case properly, and according to the judge's preference (which a local attorney will obviously know), is important in getting everything you want presented heard. Also, filing the necessary paperwork correctly, even if you win, is crucial to seeing the judgment through to the desired result. It's worth what you will pay an attorney to win effectively. You will still come out ahead. To handle a case in small claims should cost less than $1000. The attorney will probably get his fees paid in addition to this anyway.

If you are suing, or being sued in civil court, then you definitely need an attorney. The civil procedure for each state is very specific and detailed, and varies from state to state. This is where an attorney earns his fee. Obviously, if you're in civil court, we're not talking about winning only $1000. Again, the amount is going to be much higher... whether you are being sued or suing the CA, you need to have your case handled correctly. While you have done the preliminary work of requesting DV and kept good documentation, it is up to the attorney to handle the machinations of court procedure.

By being proactive in establishing your case with DV you will find that you will save yourself $1000s in legal fees and increase your odds of winning 1000-fold. Feel free to share the information from this web site with your attorney. Don't expect that he/she will be able to rattle off the pertinent case law establishing your legal position. They probably don't work with many people regarding DV and FDCPA violations. But, with a little awareness and direction from the information in this site, a good attorney will be able to take it from there and do a bang-up job for you.

Don't Assume the CA Will Stop Trying to Collect Forever

Sure, the CA may stop collection activity following your DV letter. They may remove the account from your credit report too. You may not hear from them for 6 months or even a year. But, don't think they will stop forever. Typically, employees that work for CAs are not always well organized or "on the ball". Often, the right hand doesn't know what the left is doing at some of these companies or law firms. Don't be surprised if they send you a letter some day notifying you of your debt and trying to collect. They may even send you a settlement offer. However, if they haven't validated your initial DV request, then they are in violation of the FDCPA. There is no time limit.

Additionally, you may find that a year down the road when you review your credit report, that they have re-reported the account after being previously removed. CAs commonly re-report unpaid accounts in mass yearly or every other year... just to keep the account reporting with a more recent date to let other creditors know that this account is still unpaid. If they do this without first validating in response to the DV letter you sent previously, they are again in violation and you should sue them.

Don't be Surprised if Your Debt is Sold to Another CA

Collections change hands often. These debts are bought and sold in bunches, or portfolios. A CA will try collecting for a while on a particular portfolio and then sell the batch to another CA after they have 'milked' as much out of it as they think they can get. It's not likely that your account will be sold separately just because you used DV and they can't collect it now. More likely, it'll just sit with the CA until they sell it off with a bunch of other accounts that they consider to now be 'dead money'.

Don't be Intimidated by Debt Collectors

Debt collectors (CAs) are usually unprofessional and unaware. They really don't seem to take great care in following the FDCPA. In fact, it seems many don't even know the FDCPA exists. This is probably understandable since few consumers know their rights or do anything about it. Why should a CA bother? They can just get on the phone and scare the hell out of you into paying... saying all kinds of things like; "You better pay or we'll garnish your wages!", or "If you don't pay, we'll send the sheriff out to arrest you and put you in jail!'". or "If you don't pay now, we're going to sue you!", and even, "We'll call your neighbors and boss and let them know what a deadbeat you are!". All of these are violations of the FDCPA. They just can't say these things; however, most people don't know it. They just figure there's nothing they can do and so they accept the harassment and pay up.

Learn about your rights and fight back. You don't have to take their crap! It's really simple... use DV and document, document document. Then sue the hell out of them!

Don't Ignore a Summons and Complaint (Lawsuit)

By far, most people that are served with a lawsuit - a summons and complaint - do exactly the wrong thing. They ignore it. Typically the thinking goes something like this.... Now what do I do??? I can't afford a lawyer.... I don't understand how to handle this myself... I don't have the money to pay them off anyway.... There's really nothing I can do about it... So, I suppose I'll just end up with a judgment. If you do this, then yes, you will end up with a judgment against you and possibly have your wages and/or checking accounts garnished... not fun. Instead, stand up and fight.

The reality is there's a lot you can do. the key point here is that the CA has to prove that you owe the debt, that it's the correct amount, that they have the right to collect the debt, that it's not past the statute of limitations, etc. You should consult with an attorney before you decide to do nothing. It's worth at least that.

 

Disclaimer: The information provided in this site is not legal advice. All information is general information, some of which pertains to legal issues involved in the subject matter. Credit Matters Inc. is not a law firm and is not a substitute for an attorney or law firm. Your access to and use of this site is subject to additional terms and conditions.

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