Using Your Fair Debt Rights to Fight Foreclosure
A Debt Collector Cannot Use Abusive, Deceptive, and Unfair Debt Collection PracticesIn 1978, Congress recognized that abusive debt collection practices were contributing to the destruction of peoples' marriages, loss of jobs, bankruptcy filings and personal privacy. Abusive debt collectors still cause the same problems today, and in addition only aggravate the overwhelming strain on Americans in foreclosure. These practices are illegal and as explained later, a consumer may possibly recover legal damages against a debt collector who violates the FDCPA.
A Bank or Foreclosure Plaintiff Is Usually Considered to be a Debt Collector Under the FDCPAThough there is some debate about this in the courts, a foreclosure plaintiff (the bank, lender or owner of the loan who brings the foreclosure action) is considered a debt collector under the FDCPA. Therefore you as a consumer should be entitled to all FDCPA protection against the lawsuit.
A Debt Collector Cannot Just Call You Whenever or However It WantsFor example, the debt collector cannot:
1. Call you at all hours of the day or night. They are usually allowed to call you between 8 a.m. and 9 p.m.
2. In general, If they know you are represented by an attorney, and have that attorney's contact information, they have to contact the attorney and not you.
3. They cannot call you at work if they have any reason to think that you are not allowed to get those kinds of calls at work.
If at any time you tell the debt collector in writing that you are not paying a debt or you don't want to hear from them again, they cannot contact you again except to just say they are terminating their collection efforts or taking other legal action.
The Debt Collector Can Only Talk to Certain Limited People About Your Supposed DebtIf the debt collector calls anyone except for you, the creditor or their attorneys about the debt, in general they can only verify your location. The debt collector is required to identify himself, state he is trying to get the consumer's location and give his employer's name if asked. The debt collector can't start telling the person that you owe any debt and usually not talk to that person more than once.
The debt collector also can't send postcards so that your private affairs are revealed for the whole world to see. They can't even put anything on the outside of the envelope to suggest you owe a debt.
A Debt Collector is Not Permitted to Harass, Abuse or Mislead YouFor example:
1. The debt collector cannot threaten to illegally harm you, your property or reputation.
2. They cannot call you over and over again to intentionally annoy, harass or abuse you.
3. The debt collector cannot lie about a debt.
4. They cannot lie that they are attorneys.
5. They cannot threaten to arrest you or take your property unlawfully.
6. They cannot bluff with you and say they will do anything they don't really intend to do.
7. A debt collector is not permitted to lie to anyone about your credit.
Disputing the Alleged Foreclosure Debtthe debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.
The Debt Collector May Have to Pay You Damages if They Violate the FDCPAIf a debt collector violates the FDCPA, it may be liable to the borrower for damages, costs and attorney's fees. In the case of an individual borrower, the damages are limited to those actually suffered by the borrower as a result of the collectors's failure. The court may also grant the borrower additional damages not to exceed $1,000.00. If a class action has been filed against the collector (meaning a lawsuit filed on behalf of numerous persons in the similar situation) the collector may be liable for attorney's fees and actual damages of the class as well as additional damages not to exceed $500,000.00 or 1% of the debt collector's net worth, whichever is less. The court will look at whether the debt collector's violations were intentional, and how often they committed these violations.
ConclusionIn a foreclosure, you may still seek verification of the debt after the 30-day period has expired but the plaintiff will probably proceed with the foreclosure in the meantime. If they never sent you a demand letter, that is an automatic violation. The initial summons and complaint don't count. If the debt collector proceeds with the foreclosure before they have verified a timely debt dispute they can also be liable for damages.
If the plaintiff is trying to push the foreclosure toward a final judgment without having verified your dispute bring this to the court's attention. You may be able to prevent the judgment from being entered until you have received proper verification, and at that time you may have strong defenses you can raise in opposition.
The FDCPA is another tool in the foreclosure defense arsenal which puts the ball back in the plaintiff's court and puts them on the defensive. In litigation, staying on the offensive is where you want to be.