Being on the receiving end of a debt collector’s pursuit can be very stressful and intimidating. The best thing to do when your back is against the wall in a situation with a debt collector is to immediately consult a defense attorney who specializes in debt collection defense!
Here at Demesmin & Dover we can provide you with a free consultation, that way you will be well aware of ALL of your options, as to help you understand the best course of action to be taken. Even if you don’t end up moving forward with a debt collection attorney at your side, it is definitely in your best interest to at least speak with one and weigh out your options before doing anything rash.
Some questions to consider when hiring a debt collection attorney:
“Do I legally owe the money?”
If your answer to that initial question is yes, then the chances of a lawyer building a case in your favor may be slim. That could lead to you wasting money that could be better geared toward actually just paying off the debt you owe. If the creditor is able to provide a solid case against you, you’ll end up losing in court and stuck paying off the debt you owe, as well as the attorney fees. It is also possible, on top of the previously mentioned fees, for you to also be required to pay the debt collector’s attorney. If you don’t legally owe the money to the debt collector, you can now begin to build a valid defense. An experienced debt collection defense attorney can present your case for you in court to help prove that you aren’t liable for the debt!
What types of defenses do debt collection attorneys utilize?
One of the most common defense cases that your attorney can make against a debt collection lawsuit is that the statute of limitations has expired. This refers to the period that a creditor has to bring forth the lawsuit.
It may vary from state to state, but the typical time is 4-6 years. The court will rule in your favor if the statute of limitations has expired because the creditor will no longer have legal standing. It is important to note that the statute of limitations period starts from the date of the last payment on account. Therefore, before agreeing to make a payment to a debt collector, make sure you’re aware of the statute of limitations on your debt!
Another defense to a debt collection lawsuit would be improper filing. If the case has been filed in the wrong court or the debt collector doesn’t have all of the legally required paperwork, then you can create a strong defense against the suit. The last common defense case that your attorney may make would be a lack of evidence from the creditor. The creditor should be in possession of paperwork or documents that show proof of the debt you owe them. If they aren’t able to provide that proof in the courtroom, then you’ll be able to build a valid defense against the lawsuit! Some other defense actions that can be taken are disputing the amount of debt that is owed, claiming the contract is unconscionable (unfair), or having the debt discharged by filing for bankruptcy.
Filing for bankruptcy to escape paying debt may seem like the ultimate “get out of jail free” card to pull in a debt collection case, but it is not always the best option because it doesn’t stop all creditors and it can ultimately set you back even further. Filing for bankruptcy to get out of paying your debt should only be done in the case that you don’t have the money to pay back the debts that you owe. It essentially allows those struggling with debt to be cleared of certain obligations and get a fresh start. When you file for bankruptcy the court will issue an automatic stay, which stops certain lawsuits against you. Bankruptcy can be a tool to get rid of your nonpriority unsecured debts. This would be credit card debt medical bills, past-due rent and utilities, payday loans, or any other unsecured loans. In the case of a lawsuit, filing for bankruptcy can be a viable tool due to that automatic stay being placed on you.
If you are considering hiring a debt collection lawyer, another option you should consider is whether or not you have a good counterclaim. A counterclaim is defined by the Legal Information Institute as “a claim for relief filed against an opposing party after the original claim is filed. Most commonly, a claim by the defendant against the plaintiff.” In the setting of a debt collection case, a counterclaim would be made against the creditor making the initial claim. This claim would be made to say that the creditor had done something that is against the Fair Debt Collection Practices Act (FDCPA).
The FDCPA is a “federal law that limits what debt collectors can do when attempting to collect certain types of debt, [as well as] covers how debts are reported in credit reports”. Essentially the FDCPA is the main law governing debt collection practices, and it prohibits debt collectors from using abusive, unfair, or deceptive practices to collect debts from you. This may not necessarily be a defense to the debt, but by filing a counterclaim you can receive monetary judgement. This can then be used to pay off your debt or convince the debt collector to withdraw the lawsuit altogether.
However, you should keep in mind that if you do have the money to pay back the debt and the creditor wants to continue collection actions, then the judge can review the case and lift the protections causing the case to proceed!
So should I hire a debt collection attorney?
Now that you know the common defenses or actions that could be taken to fight a debt collection lawsuit, it’s imperative you understand the cost of having a lawyer fighting for you. This is because if the costs outweigh the benefits, then you might be better off just paying the debt instead of wasting money that could go towards it on a lawyer. When hiring a lawyer, the first thing you want to have an understanding of is the fees that come with that decision.
Lawyers will either charge a flat fee, an hourly rate, or a contingency fee. Floridabar.org states that “In a contingency fee contract, you and your lawyer agree that the lawyer will not get paid any fees unless you win your case. However, you may be charged for costs such as court filing fees or expenses paid to witnesses. If you win, these expenses may be deducted from your share of the recovery. You will have to pay these costs, even if you lose your case, unless your contract specifically says that you do not owe the costs if you lose”.
If the lawyer charges a flat rate, it is usually dependent on the complexity of your case and how many creditors you may need the attorney to negotiate with. Hourly rates can vary depending on the lawyer’s experience level, your location, and whether or not they require a retainer to start negotiations. These are the numbers to keep in mind when deciding on whether hiring an attorney is a step you want to take.
If I need a debt collection attorney who should I call?
Here at Demesmin & Dover Law Firm we offer free consultations for your case and can elaborate fully on what your options on the table may be. We’ll help you understand the nature of your situation, whether or not you should take action against the creditor, and then help you carry out said actions in court. We function on the before mentioned contingency fee contract, meaning we make the most money based on how much we save you in the end.
Our main focus will be to have your debt cleared, or have you pay back as little as possible by building the most solid defense we can. For that to happen, we need to stay transparent with each other. Transparency can be a great deal of help no matter which attorney you end up deciding on. Another way you can be prepared from the day you first meet with a lawyer is by having records with you. Having copies of your records about the debt as well as your records of communication with the debt collector with you when you meet with an attorney is a huge plus. Keep record of letters, phone calls, texts, or any form of communication that you’ve had with the debt collectors! This can prove to be integral if you are building a counterclaim that the creditor has violated the FDCPA. You now would have physical evidence of this instead of getting into a he-said-she-said situation, which would never hold up in a court of law.
If you ever do find yourself on the receiving end of a debt collector’s pursuit, remember to first ask yourself “Do I legally owe this money?”. If the answer to that question is “no”, then don’t hesitate to call 866-954-MORE and get your free consultation! We’ll weigh all your options out on the table and stay 100% transparent with you on how to proceed in building a defense. We can also educate you on the documents we’d need from you, as well as estimate the costs of fighting for the best outcome we can for you because WE CARE MORE!