Stick It To Sue Happy Debt Collectors Book – A Clarification of an Affirmative Defense
January 29th, 2010. Published under Fraud, Scams. No Comments.
A reader emailed me and asked what portion of the FDCPA governs the collection of fees, such as attorney fees, outside of the original credit card agreement or amended terms in regards to an affirmative defense that I discuss in my book. In my book “ Stick It To Sue Happy Debt Collectors ”, I omitted a detail on the explanation of an affirmative defense. 18. Plaintiff is barred under the Fair Debt Collection Practices Act, from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by purported agreement. In the affirmative defense explanation of #18 I should have noted that it is a violation of the FDCPA for a debt collector under: 15 USC 1692f § 808.1 Unfair practices A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. Many debt collection attorneys (especially in “no show” default judgments) will try to collect as much money they can for “attorney fees” and at times attempt to add other costs to a judgment. It is very important that a consumer use the affirmative defenses as outline in the book to prevent greedy lawyers (and Plaintiffs) from getting more than they deserve in the case they actually prove everything (unlikely in 90% of cases) and win a judgment. Consumers many times never respond (1 out of ten respond) to a debt lawsuit for whatever reason. A debt lawsuit is a civil action (they can’t put you in jail for it) and is mostly paperwork. Most of these types of lawsuits are nothing more than a scare tactic to get you to pay or to get a judgment to make you pay. I say make them prove it, if they can’t, you win. This is a preemptive affirmative defense to protect the defendant. If the attorney does collect more than allowed under the original card agreement (even under a default judgment) they may be in violation of the FDCPA. I would assume (my opinion) that if a debt collector files a lawsuit for more than the original amount owed and the interest rate, it could be construed as a false statement and a fraudulent collection practice under the Fair Debt Collection Practices Act (FDCPA). see section 808.1 of the FDPCA (PDF file) . You may be able to sue, even after the fact. A consumer protection attorney could advise you on how to proceed if this does happen. Check out my book if you want to learn how to fight debt collection lawsuits Stick It To Sue Happy Debt Collectors .
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Stick It To Sue Happy Debt Collectors Book – A Clarification of an Affirmative Defense