I have often discussed the need to file counterclaims against debt collectors when they sue you for debts, if possible. So what could be a counterclaim that you could file? Well, under state law, it could be that anything they did was wrong. You will need to investigate everything the debt collector did that you think was wrong.
Under the Fair Debt Collection Practices Act
However, under the Fair Debt Collection Practices Act (FDCPA), I can give you a better idea. You can read the act for yourself. Basically, it makes anything the debt collector does illegal that is “unfair” or “misleading” (or might be misleading to someone who doesn’t know it). And these terms are intentionally made very broad to encourage following all the creative tricks of debt collectors.
“Assigned” or Original Creditor?
So if, for example, the debt collector didn’t say they were an “assignee” in their petition, but instead said they lent money to the defendant, that could be a violation of the law. Collectors have attempted this, arguing that since they had purchased the debt from the original creditor, they “put themselves in his place” in terms of making claims in the debt collection lawsuit.
But that, of course, is nonsense. By purchasing the debt, the debt collector became a “debt collector” under the law, and Congress itself has decided that collectors cannot be treated like the original creditors and not “put themselves in their shoes” when it comes to to collect debts. Instead, debt collectors must follow numerous rules that do not apply to original creditors.
So you can see that that allegation in the lawsuit violated the FDCPA. It was misleading and unfair in that it (1) was factually incorrect and suggested that the debt collector was actually the original creditor (different legal rights) or had more information than I did (unfair, intimidating). It didn’t matter if the attorneys intended to mislead the defendant (although I believe they did), it is simply illegal for them to do so.
“Cardholder Agreements”
Often the petition will enclose something they call the “cardholder agreement.” In every case I’m aware of, this has simply been “a” blank generic cardholder agreement, certainly not signed by the person they were suing.
See how calling it the cardholder agreement made it sound like they have an elaborate file on the defendant? While they actually had a blank cardholder agreement from the company that they copied and attached to the lawsuits against hundreds of defendants.
They had no records. But claiming that there was an agreement with the cardholder made many people think that the debt collector had the assets on them. That was misleading and unfair, and a violation of the FDCPA.
Most debt collection cases are decided by default, and this is often because the defendants believe, through tricks like those mentioned above, that they have some personal information about them. Debt collectors write their laws very, very carefully, not to be legally powerful or truthful, but to have the maximum intimidating or demoralizing effect on the people they are suing. They make their money scaring people into giving up, not winning properly filed laws. If they try to intimidate you into thinking they have real records that you don’t, they are violating the FDCPA.
general deception
If you are being sued, look closely at the petition. Does it include or attach something that is supposed to be the contract or agreement that is not signed by you? Do they attach documents that are supposed to be records from their file? It is very likely that they are trying to intimidate you unfairly. You can call their bluff by defending yourself and having them prove their case.