Seeking Validation When a Lawsuit is Filed

It often happens that a person is served court documents informing them that they have to go to court
because a creditor claims that they are owed money.  The
common initial reaction is for the consumer to ask what this is
about and want to talk to the creditor or the lawyers that filed
immediately.  Sometimes the consumer will make a demand over
the phone or send a letter to the creditor or lawyer demanding some
verification as to where the debt is from.  Not surprisingly,
those requests are ignored.  The consumer is left to wonder
what to do to find out about this debt, and then, not reacting
properly to the lawsuit, has a judgment entered against them. 
So one wonders, what is a person to do in this situation when they
want to get validation of the debt?

The Fair Debt Collection Practices Act provides a statutory
scheme for a consumer being met with a debt collection to obtain
the validation they need.  The FDCPA states that within 5 days
after the initial communication with a consumer in connection with
the collection of any debt, a debt collection shall send the
consumer a written notice containing (1) the amount of the debt (2)
the name of the creditor to whom the debt is owed, (3) a statement
that provides the consumer information on how to dispute the debt
and seek validation in writing from the creditor.
(15 U.S.C. §1692g(a))  This is, however, the ONLY time a
debt collector has to provide a validation when asked by the
consumer.  That is, to be clear, a consumer only gets
validation when making the demand in writing within 30 days after
receiving a letter that advises them they may do so. 

What happens to our consumer facing a lawsuit that does
not receive that letter?  How can they get
validation? Here are two ways to play this
out:

1)  Go the court route:

Many people are intimidated by litigation and court.  That
can be understood.  It is a place for lawyers and judges and
when you are not one of them, you are a fish out of water in that
courtroom.  However, you can make the system work for
you.  Read the summons.  It is a very important document
that will tell you the proper way to answer the complaint. 
You may have to file a written answer with the clerk, or you may
have to just appear.  Either way, a failure to comply with the
directions on the summons will most certainly end up with a
judgment being entered.  
 
Once you have properly answered, you will likely be given a court
date.  In court, each party is entitled to discovery – that
is, to learn about the claims or defenses being brought
forth.  A simple request in court may be all that is
needed.  Otherwise, one should (if not armed with an attorney)
review the local court rules for how to issue discovery requests
and obtain the documents.  It is important to remember that
when a creditor files a case against a consumer, the filer – the
creditor- has the burden of proof.  They cannot hide their
proof from the consumer.  They have to turn over what they
will be presenting in trial.  So simply asking for that would
help. 
 
2)  Force the Validation letter issue:

As stated above, the debt collector (which includes lawyers
collecting debts) must provide you with a specific notice within 5
days of their first communication with you.  The lawsuit
itself is not considered a communication with the consumer under
the
FDCPA.  However, a phone call from a consumer is
considered a communication.  Thus, it would be wise to call
the collector/lawyer that filed the lawsuit.  Contact the
collection lawyer and ask what the debt is about.  Make sure
to mention very clearly that nothing has ever been received by mail
before this lawsuit.  Ask if they will be sending you
something in the mail.  Whether they plan on it or not, they
are supposed to at that time.  
 
If and when the letter comes in the mail, the consumer has 30 days
to demand validation.  Once the request is made, the collector
cannot go on collecting the debt (that is, they cannot prosecute
their lawsuit) until the debt is validated.  On the other
hand, if the collector fails to send anything in writing, then they
may have run afoul of the FDCPA which may entitle you to up to
$1,000 in statutory damages plus attorney fees and costs.
 
When you’re being pursued by debt collectors, you have
rights,  and we’re here to help.  SmithMarco,
P.C. has been protecting consumer rights since 2005.  If
you feel that you’re rights have been violated, please contact us for a free case review.