17.5.3.4 Examples of Litigation Conduct As FDCPA Violations

Collection litigation, particularly debt buyer litigation, may involve FDCPA violations by the plaintiff or the plaintiff’s attorney. These violations are examined in far greater detail in NCLC’s Fair Debt Collection,¹⁸⁵ and only some potential violations will be listed here without citations or analysis.

The key to an FDCPA claim is to show that the plaintiff or its lawyer engaged in deception or an unfair practice. It is not enough that the creditor failed to prevail in the collection action.

Examples of deceptive or unfair conduct may involve:

• • Sewer service—falsely representing that the consumer was properly served with the collection complaint;
• • Including other documents with the complaint that confuse the consumer as to the consumer’s legal rights, such as documents that imply a default judgment has already been entered against the consumer;
• • Filing a complaint when the plaintiff is not licensed or otherwise eligible to bring an action in the state’s courts;
• • Misrepresenting the party bringing the action, such as indicating it is the originating creditor when the account has already been sold;
• • The creditor’s attorney falsely swearing that they have personal knowledge of the factual basis for the complaint (and is not simply drafting the complaint on information and belief);
• • Bringing an action outside the statute of limitations;
• • Bringing an action with no ability to prove the case, hoping instead to obtain a default judgment;
• • Abusive use of requests for admissions in an attempt to prove the case when the creditor otherwise has insufficient evidence to do so;
• • Filing affidavits containing false information, as when the affiant falsely swears to personal knowledge of facts or to facts that are not true;
• • Representing that records are generated by the originating creditor when instead the debt buyer has simulated such records for the purposes of litigation;
• • Continuing to pursue a case after it becomes evident that the consumer does not owe the debt;
• • Suing on a debt that has been discharged in bankruptcy;
• • Seeking prejudgment interest not allowed by state law;
• • Seeking attorney fees not authorized under the legal claims found in the complaint;
• • After settling a case, obtaining a default judgment contrary to the terms of the settlement; and
• • Suing on a debt after a judgment was rendered on a prior suit on the same debt.

Case citations for these potential violations can be found in NCLC’s Fair Debt Collection.¹⁸⁶