Fair Debt Collection Practices Act Claims

How To Make a Solid Case For an FDCPA Claim

The Fair Debt Collection Practices Act (“FDCPA”) protects debtors from harassment by debt collectors (third party collectors – not your original creditor) and sets rules by which the collector must abide.   If a collector has violated the FDCPA, you can sue the collector in court for certain types of damages. These damages can include monetary damages, attorney’s costs and/or injunctive relief.

1. Most Commonly Rewarded Damages for FDCPA Claims

Most often the remedy for an FDCPA is a reward for statutory damages which is dictated by the actual text of the FDCPA to allow for up to $1,000 per lawsuit – not violation.  However, because these damages are dictated by statute, all the debtor has to prove is that the FDCPA was violated, not that the debtor was harmed by the creditor’s violation of the statute.

In some cases, where the debtor has successfully proven that the creditor has violated the FDCPA, the court may allow for the debtor to recover their attorney’s fees and court costs. Before entering into litigation for an FDCPA, you want to make sure you have met with an experienced FDCPA attorney to analyze your claim, because if attorney’s fees are not recovered, than simply receiving statutory damages most likely will not be enough to cover what you have paid to initiate and pursue the claim.

Also, the court can award injunctive relief. Injunctive relief prevents an action rather than awarding monetary damages. Therefore, the court may state that the creditor must cease all collection efforts which would preclude the creditor from sending letters or contacting you over the phone.

2. Less Commonly Rewarded Damages for FDCPA Claims

In some extreme circumstances, debtors are emotionally and physically affected by the actions of a debt collector. In these extreme circumstances, a court may award actual damages for the physical and emotional distress that a debt collector has caused.

For instance, perhaps the stress of the creditor threatening a lawsuit against you has caused you so much stress that you break out into hives every time they call and now must now go to therapy to calm your nerves and you. The costs associated with that treatment may be rewarded by the court.  Perhaps the creditor persistently called your place of employment and it caused your boss to say something to you that made you so stressed because you might lose your job. These are all examples of situations where you, as the debtor, have had such an extreme adverse effect due to the creditors violations of the FDCPA that you may be able to recover actual damages.

3. How To Prove Damages

In order to maximize your damages in an FDCPA claim, you must keep good records, especially if you are making a claim for actual damages due to emotional and physical distress. The court will not simply take your word for it and will want to see that you have proof that the creditor has violated the statute and how egregious the violations were that you claim happened.  If you have had any physical or emotional distress you are going to want to have your doctor’s records, prescriptions, journal entries, etc. to prove those claims.  In order to prove the base of your claim, you are going to want to make sure you do the following:

• Save documents that you receive from the debt collector. There are certain disclosures that have to be made by third party debt collectors when they communicate with you.

• Note if the balance owed increases from each written communication received to the next. There are certain disclosures that need to be made about interest charges and there are arguments to be made as to whether the third party can even charge interest at all.

• Keep a call log. Creditors cannot call you before or after certain hours so you are going want to notate when they call and what was said and by whom. Also, regardless of the hour, they cannot continuously call you over and over and over again because at some point it becomes harassment.

• Take Pictures of Phone Calls.  Assuming you have some sort of caller ID, take pictures of the phone number calling so that you have further proof that it was actually a certain creditor calling versus just taking your word for it.

• Record Conversations and/or Save Voicemails. They should state in the beginning of the phone call that they record their calls so you can record on your end. Debt collectors are limited in what they can and cannot say to you. They cannot be overly aggressive and offensive. Also, they cannot disclose information about you and your situation to anyone but you.  Therefore, if a message is left on your answering machine and it divulges information about your account specifics for anyone and everyone to hear without confirming it is actually your answering machine (you may have a message that states your name), this is a violation.

If you take the above advice, you will be on your way to a great FDCPA claim.  Do not let debt collectors pull one over on you by staying educated and informed about your rights.