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Fair Debt Collection: 2.4.6 Complaining About Billing Errors

If collection letters ask for more than is due or some other possible mistake is on the bill (for example, wrong account, wrong person, insurance paid the bill), the consumer should write to the collector and request that the mistake be corrected.

Fair Debt Collection: 2.4.8 Evaluating Strategies for Harassed Debtors

Whether a harassed debtor should use one or more of the five strategies discussed above, or whether that debtor instead should document the collection misconduct and institute suit or file bankruptcy will depend upon a number of considerations. For example:

Client’s objectives

Fair Debt Collection: 2.5.1 Client’s Recording of Phone Calls

When legal, evidence of collection abuse and of the client’s credibility might be obtained by the consumer recording a collection telephone call. This option is only available in certain states, because in other states recording a phone call without consent is a criminal offense. There are also legal ethical considerations if an attorney advises the client to record a telephone call.

Fair Debt Collection: 2.5.2 Client’s Written Statement

Because it may be a long time between the initial interview and trial, it is a good idea to obtain a statement of the client’s story, signed by the client. The statement may be used at trial to refresh the client’s memory.65 The effect of this statement on the client-attorney privilege and the work product rule is beyond the scope of this subsection but should be considered by counsel.66

Fair Debt Collection: 2.5.3 Some Fee-Generating Debt Collection Cases Must Be Referred to Private Lawyers by Legal Services Corporation Grantees

Debt collection harassment cases that are truly “fee-generating” may have to be referred to private attorneys pursuant to the Legal Services Act67 and implementing regulations.68 Increasing numbers of private attorneys have been accepting clients on a contingent-fee basis in debt collection abuse cases,69 although there are generally far more cases than there are attorneys willing to take them.

Fair Debt Collection: 2.5.4 Developing the Case Chronology of Events

An important first step in developing a case for debtor harassment is preparing a chronology of the events involved in the harassment. Events seemingly insignificant to the claim may prove significant later, may aid a witness’s memory, or may indicate discrepancies in evidence. There are usually a substantial number of documents connected with a consumer transaction; these are particularly useful for pinpointing significant dates in a chronology.

Fair Debt Collection: 2.6.1 Maximizing Damage Awards

A working knowledge of the law and practice of proving damages is crucial in both the negotiation and the trial stage of a debt collection abuse case. An attorney who has not developed the evidence of damages in a case has little idea of where to start and terminate negotiations.

Fair Debt Collection: 2.6.2.1 General Principles

A common and costly mistake made by an attorney in a debt collection abuse case is to pay insufficient attention to the nature and extent of the client’s actual damages. Ask about the stress the consumer suffered and how long the distress continued. When the abuse is egregious and the resulting distress, lasted many days the damages may be valued in five figures.

Fair Debt Collection: 2.6.2.2.1 Introduction

Types of injuries for which consumers have obtained damages in typical abusive debt collection situations are listed below. More detail with case citations is found at § 11.8, infra. Whether these injuries are legally compensable in a particular case may depend upon the type of legal claim.97

Fair Debt Collection: 2.6.2.2.3 Medical conditions arising from debt collection abuses

Medical conditions are also related to debt collection abuses, such as loss of appetite, nausea, vomiting, sensitive stomach, loss of weight, tooth pain where debt collector took funds saved for dental work, ulcers, diabetic flare-ups, miscarriage, heart attack, heart palpitations, angina, chest constrictions, becoming bedridden, pain and suffering, shortness of breath, headaches, dizziness, fainting, blacking out, skin eruptions and great pain from shingles, aggravated existing illness, and extended illness.

Fair Debt Collection: 2.6.2.2.4 Out-of-pocket losses

Section 11.8.4, infra, sets out a discussion and court decisions regarding various types of out-of-pocket losses caused by debt collection violations, including loss of job, income, work time or leave from a job; impairment of job advancement; medical or counseling expenses; medication or special diet; telephone charges; payments on an invalid claim or a debt barred by a statute of limitations; transportat

Fair Debt Collection: 2.6.2.2.5 Injuries to personal relations

Section 11.8.5, infra, sets out various case decisions awarding damages for injury to the following type of relations: injury to reputation; harm to credit rating, loss of access to credit and to employment; loss of privacy; loss of consortium; strain to marriage; strain with family; demotion by employer; and humiliation.

Fair Debt Collection: 2.6.3 Evidence Establishing an Injury’s Existence, Cause and Value

A key question in recovering actual damages is how extensive the evidence of consumer injury must be. There are different standards as to adequate proof that there is an injury and the dollar value of that injury. In fact, evidence of the dollar value of the injury is often unnecessary. The trier of fact may attach dollar amounts to some injuries (nausea, headaches, or anxiety, for example), without any proof of their value.

Fair Debt Collection: 2.5.7.1 Importance of State Claims

State claims may offer punitive,73 multiple, or statutory damages in addition to the relief offered by the FDCPA. Even when the FDCPA applies to a case, local law may supplement it or be more favorable to the consumer.74 For example, a collector may violate a state law for which the FDCPA does not provide a parallel prohibition.

Fair Debt Collection: 2.5.7.2 Choice of Federal or State Court

The choice of filing in federal or state court is dominated by local considerations. In some locales, there is little reason to prefer federal judges over state judges, either for judicial ability or for sympathy in actions against debt collectors. State discovery and procedural rules are often so similar to federal rules as to eliminate this as a consideration. The relative backlog of cases on federal and state dockets varies greatly from locale to locale. Choice of forum will affect the rules and practice for drafting pleadings.76

Fair Debt Collection: 2.5.7.3 Specificity of Pleading

In pleading an FDCPA claim, the consumer attorney should consider two separate requirements. One is to establish concrete harm or injury in fact sufficient to meet the Article III federal court standing requirement. This requirement is discussed in detail at § 11.15, infra.

Fair Debt Collection: 2.5.7.4 Avoiding Dismissal

Failure to state a cause of action will result in the dismissal of the complaint and, when the court deems the claim entirely frivolous, sanctions.77 Failure to join an indispensable party may also result in the dismissal of the litigation.78 Section 11.6.1, infra, provides an analysis of the specificity of p

Fair Debt Collection: 2.5.7.5.2 FDCPA as a counterclaim

Consumers may decide that the better strategy is to raise their fair debt collection claim defensively as a counterclaim to a suit on the debt filed by the creditor or its collector.81 One advantage of this approach is that it may create more leverage in negotiating a reduced amount of the debt. Disadvantages may include that the FDCPA claims will not apply to the creditor and a state court judge may not be familiar with the FDCPA.