Suing Debt Collectors For Illegal Conduct
If a debt collector is engaged in illegal conduct, you have a legal right to sue. Debt collection harassment is illegal and you can be compensated for any injury suffered. Obviously, any money awarded in a successful suit or settlement--or any amounts written off existing debts in settlement of a harassment charge--will be particularly welcome. At the same time, any money awarded will deter future misconduct by debt collectors.
Suits for up to $1,000 and your attorney's fees for collector misconduct
Even when you are subjected to only minor forms of illegal collection action, you can sue the collector and recover up to $1,000 and all of your attorney's fees for any violation of the Fair Debt Collection Practices Act (FDCPA). You can recover up to $1,000 whether or not the conduct caused you any injury.
On top of the $1,000, you can recover for any injuries that were caused by the illegal conduct. Courts may award damages for such emotional injuries as loss of happiness, loss of energy, loss of sleep, tension headaches, crying spells and marital problems. Consumers have been awarded as much as $6,000 for emotional distress when the stress aggravated pre-existing medical problems.
Where the collector's conduct is seriously improper, you may also be able to recover additional punitive damages on top of your actual damages. Examples of such conduct are threats to throw you in jail, deport you or have your children taken away. The punitive damages are intended to punish the collector and prevent future misconduct.
If you win an FDCPA case, the collector must pay your attorney fees, which may encourage a private attorney to take the case without charging you, particularly where the claim appears strong. In fact, the collector may end up paying more in attorney fees than in damages.
Even though many debt collectors are small operations, you can usually recover your judgments against the collectors. Many collectors carry professional liability insurance to protect themselves against consumer claims. The existence of such insurance is often important in settling claims. You thus have a great deal of leverage in dealing with a collector that violates the FDCPA.
Finding an attorney to sue a debt collector
It is not always easy to find an attorney to handle an FDCPA claim. Families with low incomes and limited assets may be eligible to obtain free legal services from a neighborhood legal services office, and those offices may pursue such claims. Other consumers can contact local bar associations for pro bono attorneys who might handle the case. Some cities have lawyers who regularly handle debt collection harassment cases. In other areas, you can find a personal injury lawyer willing to pursue the case on a contingent fee basis. The key to convincing a private attorney to take the case will be the availability of an attorney fee award paid by the collector if you win the lawsuit.
What you should tell your attorney
Once you find an attorney, your job is to document the extent of collector misconduct and the impact on your family. Although you may not want to discuss your feelings about the harassment, it is key to determining what kind of legal case you have. All symptoms of emotional distress should be discussed including: anxiety, embarrassment, headaches, nausea, indignation, irritability, loss of sleep and interference with family or work relationships.
Out-of-pocket losses should also be listed, ranging from loss of employment to loss of wages because of time taken off from work to try to resolve the dispute. In addition, telephone charges, transportation, medical bills and counseling services could all be part of your actual damages.
Keep a record of all expenses related to the collection effort. Prepare a statement describing your physical and emotional response to the collection efforts, and list all costs incurred as a consequence of that response. If you consulted a doctor or counselor, include that expense. Consider whether you can obtain supporting statements from family members, relatives, friends or coworkers.
A verbatim telephone log of collection contacts is also helpful. Pen and paper should be kept near the telephone to record all telephone contacts. Abusive messages left on an answering machine should be kept if possible.
What if the FDCPA does not apply?
The FDCPA applies to collection agencies and lawyers. It does not generally cover creditors or their employees collecting their own debts. That is, the FDCPA only applies to an independent debt collection agency hired by a creditor to collect its debts and when a creditor hires an attorney to collect its debts.
If the FDCPA does not apply to collection efforts, you still have legal remedies for debt collection harassment. These remedies will mostly involve state law, not federal law. While there will be variations from state to state, in every state there will always be at least some remedy for debt collection harassment.