I have often discussed the need to file counterclaims against debt collectors when they sue you for debts, if possible. So what could be a counterclaim you could file? Well, under state law, whatever they did could be wrong. You will need to investigate anything the debt collector did that you thought was wrong.
Under the Fair Debt Collection Practices Act
However, under the Fair Debt Collection Practices Act (FDCPA), I can give you a better idea. You can read the act for yourself. Basically, it makes illegal anything the debt collector does that is “unfair” or “misleading” (or could be misleading to someone who doesn’t know). And these terms were intentionally made very broad to encourage following all the creative tricks of debt collectors.
“Assigned” or Original Creditor?
So if, for example, the debt collector didn’t say they were a “transferee” in their petition, but instead said they lent money to the defendant, that could be a violation of the law. Collectors have attempted this, arguing that since they had purchased the original creditor’s debt, they “put themselves in his place” as to making claims in a debt collection lawsuit.
But that, of course, is nonsense. By purchasing the debt, the debt collector became a “debt collector” under the law, and Congress itself has decided that collectors cannot be treated as the original creditors and not “step in their shoes” when it comes to to collect debts. Instead, debt collectors must follow numerous rules that do not apply to the original creditors.
So you can see that that allegation in the lawsuit violated the FDCPA. It was misleading and unfair in that it (1) was factually incorrect and suggested that the debt collector was actually the original creditor (different legal rights) or had more information than he did (unfair, intimidating). It didn’t matter if the lawyers intended to mislead the defendant (although I believe they did), it’s just illegal for them to do so.
“Cardholder Agreements”
Often the petition will attach something they call a “cardholder agreement.” In every case I’m aware of, this has simply been “a” blank generic cardholder agreement, certainly not signed by the person they were suing.
See how calling it the cardholder agreement made it look like they have a file drawn up on the defendant? Whereas they actually had a blank cardholder agreement from the company that they copied and attached to the lawsuits against hundreds of defendants.
They had no records. But claiming that there was an agreement with the cardholder made many people think that the debt collector had the assets on them. That was misleading and unfair, and a violation of the FDCPA.
Most debt collection cases are decided by default, and this is often because the people being sued believe, through tricks like the ones mentioned above, that they have some personal information about them. Debt collectors write their laws very, very carefully, not to be legally powerful or truthful, but to have the maximum intimidating or demoralizing effect on the people they are suing. They make their money by scaring people into surrender, not by winning properly filed laws. If they try to intimidate you into thinking they have real records that you don’t, they are violating the FDCPA.
general deception
If you are being sued, look closely at the petition. Does it include or attach anything that is supposed to be the contract or agreement that is not signed by you? Do you attach documents that are supposed to be records from your file? It is very likely that they are trying to intimidate you unfairly. You can call their bluff by defending yourself and having them prove their case.