When someone is facing a debt collection action, it can seem like a hopeless situation. It is a situation, however, that many Americans face. According to the Consumer Financial Protection Bureau (CFPB), more than 70 million Americans have interacted with a debt collector.
Of these 70 million, 25 percent of them report feeling threatened during their communications with debt collectors, who often use aggressive methods to obtain payment. If the collection gets to the point where legal proceedings are filed, certain steps can be taken to protect your rights.
- File a Response
The biggest mistake that consumers make is to ignore the paperwork when they receive it. A consumer who is facing a debt collection proceeding will receive a summons and complaint, informing him or her that a legal action to collect upon the debt has been filed. This paperwork will provide information regarding how long the individual has to file a response to the legal action. If a response is not filed, however, the debt collector or creditor can get a default judgment against the individual, resulting in a garnishment of the consumer’s wages. If that happens, the court can add the collection agency’s legal fees, court costs and interest to the balance.
When filing a response, it is important the consumer does not readily admit liability for the debt but make the creditor prove that the debt is owed, including the amount owed. This answer needs to be filed with the clerk of court and sent to the company who filed the legal action within the proper time period.
- Does the Company Have the Right to Sue?
It is important that the consumer ensure that the company who filed the lawsuit has the right to file it. Many times, debt is sold from company to company. The company filing the legal claim must first show proof that they have legal rights to file the claim. To prove ownership of the debt, the plaintiff must show a credit agreement exists signed by the consumer and show documentation showing the chain of custody of the debt, eventually leading to who owns the debt itself. If the company cannot provide this information, the judge may dismiss the case.
- Burden of Proof
Keep in mind that no case is open and shut. The company who filed the claim has the burden of proof to show that the named individual is responsible for the debt, that they have the right to sue the defendant, and the amount that is owed. All these elements must exist for a case to be successful.
- Statute of Limitations
Another factor should be considered, as well, when defending against a debt collection action, and that is whether the debt is past the statute of limitations. Every state has statutes of limitations that govern how long a legal claim can be filed on a certain action. In Florida, for written contracts involving consumer debt, the statute of limitations is five years, while it is four years for oral contracts or revolving accounts, including credit card debt. If the collection action is filed after that time period has expired, the consumer can file an answer with the court requesting the case be dismissed due to it being past the statute of limitations.
- Hire an Attorney
The consumer does not need to go through this process alone. The debt collector will likely have a legal team on their side to prove the claim, and while a consumer can certainly handle a debt collection case independently, it is almost always recommended that he or she consult with an attorney first before taking any action. However, it is important that the person not wait too long to do this before the time period lapses for responding to the complaint.
- Fair Debt Collection Practices
If the collection action is being pursued by a third-party debt collector and not the original creditor, and the collector is using aggressive and threatening tactics to get the consumer to pay, these actions could be punishable under the Fair Debt Collection Practices Act (FDCPA). The FDCPA provides guidelines on the times debt collectors can contact the consumer, the type of language and communications that can be used, as well as who can be contacted. Talk with a consumer attorney who can advise you on how to proceed if you feel that your rights are being violated under the FDCPA.
- Consider Bankruptcy as an Option
If the consumer is struggling with insurmountable debt and sees no way out, bankruptcy may be the best option for him or her. When a petition for bankruptcy is filed, the consumer will then be protected under the automatic stay, which means all debt collection activity must stop until the bankruptcy case is complete. While bankruptcy should not be used as the only way to defend a debt collection lawsuit, it may be the best option for a consumer who is drowning in consumer debt.
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If you have questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.
Related Resource: https://www.debt.org/faqs/americans-in-debt/consumer-florida/