2.3.1 When the Consumer Has Not Yet Been Sued

Consumers may seek legal representation before they are sued on a debt. Debt collection contacts can be stopped by the consumer sending a “cease communication” letter to a collection agency or a debt buyer.³⁹ If that fails, an attorney letter should succeed.⁴⁰ The consumer can also be advised about how to document abusive collection contacts.⁴¹

Advise the client to revoke any consent to robocalls made to the client’s cell phone. This may not only reduce unwanted contacts but sets the consumer up with a Telephone Consumer Protection Act (TCPA) counterclaim for $500 per documented unwanted robocall. In some cases, a client may wish to explore settlement before a lawsuit is filed.

A lawsuit can cause embarrassment for the client and often ends up being noted in credit reports. Additionally, a creditor may be more flexible with settlement terms before litigation commences. The client will also likely save on legal fees if a settlement is achieved before a case is filed.

If a court posts on its website complaints filed with the court, the attorney can go online to see if the consumer was in fact sued on the debt. If a complaint was filed, then the next step is to find out if the collector informed the court that the complaint was served on the client. If not, the consumer’s attorney should check weekly to see if service has been issued. It may not be advisable to contact the collection attorney about the status of the case, as this may help the collector in service of process. The collector may end up never providing any service of process, or the case may be dismissed voluntarily.

The attorney should also explain to the consumer what a summons and complaint look like and how they are served. It is probably a good idea to advise the consumer to accept all certified mail because failure to do so will likely shorten the time the consumer has to respond to a summons and increase the likelihood of a default. Upon receipt of a complaint the consumer should be advised to contact the attorney immediately.

The attorney can also warn the client of the risks of various quick fixes, such as debt elimination, debt settlement scams, or refinancing unsecured debt into a home mortgage or other secured debt. Other offers to avoid include credit repair agencies and internet offers to help consumers defend collection actions brought against them. These are described briefly at § 2.7, infra.