Debt Law

Defend Against a Debt Collection Suit

By July 10, 2018 No Comments

There is a common misconception among debtors, lawyers, and judges that when someone is sued on a debt, say medical or consumer debt, that they not only owe that debt, but they have no valid defenses or counterclaims against the party suing them. In today’s late-capitalist environment, debt collection is a massive industry, albeit one with shockingly few internal safeguards. For instance, law firms that take on debt collection suits will sometimes file thousands upon thousands of such suits each year with only a minimal number of attorneys on staff. What that means is that their debt-collection complaints are often cookie-cutter forms with few facts accompanied by little-to-no documentary support. For instance, it is not uncommon to find complaints filed in Michigan district courts alleging breach of contract or account stated (i.e. an assertion of an amount owed) with no proof that there was a valid contract or any documents (including affidavits) asserting that the accounting of what is owed is in any sense accurate.

Why do debt collectors—specifically debt-collection attorneys—do this? Because approximately 98% of the time, alleged debtors go unrepresented in debt-collection suits and a vast majority of them default by failing to answer the opposing party’s summons and complaint. This means that debt-collection attorneys can file sloppy work with the courts and never risk being called out on it. It also means that few individuals being pursued in debt-collection suits are ever afforded the opportunity to scrutinize the amount requested, whether or not they actually owe the debt, and find out if the statute of limitations has run out. Once an individual defaults, it is not hard for the attorney who filed the suit to get a default judgment and, from there, attempt to garnish tax returns, bank accounts, and employment income.

This unfortunate situation is made all the worse by the fact that not only do collection attorneys fail to file meritorious cases, they often violate state and federal laws in pursuing debts. Violations of the Telephone Consumer Protection Act, Fair Debt Collection Practices Act, and the Fair Credit Reporting Act are ubiquitous, yet few such claims are made, mostly because those being hounded for alleged debts are unaware of their rights under the law. The negative outcome of this unintended ignorance is that debt collectors and their attorneys feel empowered to skirt the letter of the law when pursuing alleged debtors, often leaving them feeling embarrassed, helpless, and emotionally distressed. Make no mistake about it: debt collectors leverage fear into payouts—including payouts on debts they are not lawfully allowed to collect on.

When those being pursued by collectors and their attorneys do turn to the law, it is often to the protections that Chapter 7 or 13 bankruptcy affords. While this is well and good in certain circumstances, not every individual being pursued for a debt (or series of debts) is in a position to file bankruptcy. Some people, for example, view bankruptcy as a personal and/or moral defeat and would therefore rather find an alternative to filing. However, the pervading belief is that the only viable alternative is succumbing to the collector’s demands or, in a “best case scenario,” settling with the creditor and/or their attorneys on the belief that there is no other alternative available. That doesn’t have to be the case, though.

Although perhaps few and far between, there are consumer protection/debt defense attorneys out there who are ready, willing, and able to help. A qualified attorney in this area should be able to sit down and offer a free consultation that provides alleged debtors with a list of options to defend against a debt-collection suit, including ascertaining if there are viable counterclaims under state or federal law that can be brought to bear against the debt collector. And due to the fact that some of these protection rules entitle individuals to damages and attorney fees, it is possible that an attorney may be willing to take the case on a contingency basis. At the very least, consulting with an attorney provides some peace of mind concerning which course of action is best to pursue under the circumstances.

At the close of business, the worst thing any individual can do is to ignore a summons and complaint in a debt-collection suit. Sometimes (though not always) simply answering the complaint will be enough to compel a debt-collection attorney to withdraw the suit and look for other paths of least resistance from those alleged debtors who do not file an answer. If the collector does not withdraw the suit after an answer is filed, however, it would behoove anyone being pursued for a debt through the courts to consult with a consumer protection/debtor defense attorney as soon as possible in order to make sure their rights under the law are protected.