Consumers with credit card debt they cannot afford to pay need to actively resist debt collectors, rather than passively wait with their heads in the sand for a credit card summons to arrive. They need to respond specifically to debt collectors written attempts to collect a debt. Under the Fair Debt Collection Practices Act (FDCPA) consumers have the right to deny and dispute a debt and demand documentation for it.
Denying and disputing a debt that is owed is not a reflection of poor character, but rather a basic legal strategy to force the creditor to prove with documents that the consumer does owe the debt, and that the creditor actually possesses sufficient documentation to win any possible court case. Somewhat surprisingly original creditors, the credit card banks, and especially junk debt buyers have difficulty documenting credit card debt, according to a New York Times article.
In this video the Los Angeles Times reports the California attorney general suing Chase Credit Cards for furnishing phony credit card documents in credit card debt lawsuits it filed in California
These written demands and debt-proving documents need to be exchanged before a debt collection attorney includes the consumer in his next batch of credit card lawsuits. The first thing a collection attorney does with the next new group of credit-card-indebted consumers he receives from a bank or junk debt buyer is send them all a collection notice on legal letterhead to scare them into calling to set up a payment plan. This is called a mini-Miranda. It contains the phrase “This is an attempt to collect a debt.” There is also the phrase, “This has not been reviewed by an attorney.” In other words, it is not directed at any one individual. And by inference, that means the attorney has no specific knowledge of any one debt case. This is THE letter the consumer should respond to with a deny/dispute/demand documentation letter. This is sometimes called a debt validation letter [I avoid that term because not all so-called experts realize the true purpose of this letter, which is to separate in the collection attorney’s mind the consumer using it from the less sophisticated consumers who respond to the mini-Miranda with an improperly worded letter or, more likely, do not respond to it at all.]. Upon receipt of this letter, the collection attorney must respond with some documentation or give up the opportunity to sue that consumer. According to the strong legal precedent, Spears vs. Brennan, the collection attorney cannot ignore that letter and then sue. They must first respond to the deny/dispute/demand documentation letter.
According to that New York Times article, 93 percent of consumers do not respond to a summons for credit card debt. That is why the collection attorney could be so eager to sue after picking off the low-hanging fruit with his mini-Miranda letter. Also, most courts require an attorney to give some type of notice (In this case, the mini-Miranda) to settle out of court, before wasting the court’s time with a lawsuit.
To make it even harder for the collection attorney, a good strategy would be to have a local attorney familiar with local court procedure send that letter to the collection attorney on behalf of the credit-card-indebted consumer. Why should the collection attorney bother litigating with the consumer’s attorney, when he can continue to more easily pursue the other 93 percent of consumers who do not respond?
If you have credit card debt you cannot afford to pay, you need to realize there is information available that can help you. Follow this link and read more of my posts.