Overview of a typical FDCPA lawsuit against an abusive debt collector
Overview of a typical FDCPA lawsuit against an abusive debt collector
A large portion of our practice deals with suing abusive debt collectors under the FDCPA.
In this article, I want to give you a big picture view of what happens when we sue an abusive debt collector.
We’re dealing with a debt collector who has violated the FDCPA and now we are suing them. What happens now?
Personally, I file these cases in state court 99% of the time.
Once we filed the case, the defendant (the abusive debt collector) is served.
After the defendant is served, they have 30 days to respond or remove the case.
“Removing” the case means that the defendant removes the case from state court and puts the case in federal court.
They do this in the majority of cases.
The defendant will either answer the case or they will move to dismiss the case.
Usually, they move to dismiss even when there is no basis for dismissal.
This makes the defense lawyers money and keeps the debt collectors happy because it seems like they are fighting us.
They will file a thirty-page answer saying that there’s no way we can win, so it’s best to just throw the case out.
When we get that motion to dismiss, we can either respond and tell them that it is actually a perfectly plead case, or we can “amend” our lawsuit.
Typically we choose to amend the lawsuit, even when we don’t think we need to.
Even if we have a perfectly plead case, when they send that motion to dismiss, we amend our lawsuit.
If they have filed a motion to dismiss listing three things they feel are defective in our original complaint, we amend and clarify with more detail on those three areas.
By doing this, we specifically deny their excuses and reinforce our points.
After we have amended, they typically then answer the lawsuit.
So far, we have filed the case in state court, the defendant has been served, the defendant has “removed” the case to federal court, and now they have answered the complaint.
Next, we have the “party planning” meeting.
The party planning meeting is where the lawyers get together, whether in person, zoom, or phone call, and plan out the schedule.
We know the preferences for each individual judge. Some of them want us to schedule dates over a long period of time and some want a shorter period of time.
Once we come to an agreement, we make a proposal to the judge regarding the number of depositions, length of time to conduct discovery, etc.
When the judge gets the proposal, they will either agree or decide the schedule should be changed.
If the judge wants to change the proposal, they will enter a scheduling order.
As soon as we have the party planning meeting, we can start discovery.
There are many different things we can do for discovery, which is where we gather evidence and testimony for our case.
Here are a few examples of discovery:
- Send them questions in writing (known as interrogatories)
- Request production of documents
- Request for admissions – These are very specific factual details that we want the other side to admit (in which case we don’t need to prove them) or deny.
- Depositions – questioning people under oath
After we complete discovery, we enter what is called the dispositive motion stage, more commonly known as summary judgment.
We can ask for a summary judgment, although typically we want a jury to determine the amount for damages under the FDCPA in our case.
The debt collector can also ask for a summary judgment.
They tell the judge that there is no way a reasonable jury could find that they did anything wrong so they request that the judge summarily enter judgment and throw the case out.
Assuming the judge does not grant a summary judgment, we move on to the trial.
Right before the trial, we have a pretrial hearing.
In a pretrial hearing, the judge wants to know the issues, arguments about evidence that should be kept in or left out (also known as motions in lemony), and the jury charges.
After this meeting is the actual trial.
From start to finish on a trial, we pick a jury, the judge has opening remarks, then the plaintiff (the consumer who is suing) gives an opening statement.
In our opening statement, we lay out a road map of what has happened for the jury.
Then the defendant (debt collector) gives their opening statement.
Because we bear the burden of proving our case, we go first and call our witnesses.
Our witnesses could include our client, the debt collector who made the call, or maybe the corporate representative.
Typically, we call all of the defense’s witnesses in our case for strategic reasons.
We question the witnesses and once we have finished, the debt collector can cross-examine the person that we called.
When we are done and declare that we have no further witnesses, this is known that the “plaintiff resting.”
At this point, the defendant will usually move for judgment as a matter of law.
This means the defense says there is no reason to go any further based on all the evidence they just brought forth so the plaintiff should lose.
Presumably, this gets denied.
Now the defendant has its own opportunity to call witnesses, bring in evidence, and present their case.
When they are done, they move for judgment again. This is usually denied.
Then we move on to the jury charges (we pick these well before the trial).
We charge the jury. To charge the jury means to instruct what the law is so they can make an informed decision about the case.
The jury will then go to the jury room, deliberate, and return with a verdict.
If either side is unhappy with a verdict, they have the right to appeal.
We hope this overview of a typical FDCPA lawsuit helps you to understand a little more about the process in case you are considering suing an abusive debt collector.
If you are interested in more in-depth articles about different parts of an FDCPA lawsuit against an abusive collector, please feel free to reach out to us and let us know.
If you live in Alabama and you have any questions, feel free to get in touch with us.
We would be glad to help you in any way we can.
You can reach us by phone at 1-205-879-2447, or you can fill out a contact form and we will get in touch with you quickly.
Thanks for reading!