Collection agencies can be a bit ambitious when they collect a debt. Especially when they act faster than they should and rush a lawsuit against a debtor without allowing the 30 day right to request validation to run out.
When a collection agency receives an account to collect, they are to mail a dunning notice, otherwise known as a 1692g to the debtor. This notice gives the debtor 30 days to dispute the debt, or any portion thereof. However; because creditors are rushing to get the bad debt off the books and sending the debts quickly to third party collection agencies, some of the debtors asset information is still current enough such as a job, whether or not they own a home or any other assets that the original creditor had, is transferred with the account. In order for a collection agency to spend the money and sue the debtor, they will look for an asset the debtor has. This can be a job, retirement, savings, a checking account or any other type of asset. The moment the agency has this on the debtor, they will rush the paperwork and file for judgment and go after the debtors assets.
As past due accounts are rushed to court before the debtor has the time to dispute any information on the account are leaving debtors in a helpless state and forces them to pay for something they may not have owed to begin with. According to the CFPB, consumers are complaining about collection agencies violating the FDCPA by not allowing the 30 day time period right to dispute to pass. Part of the problem are cases are being heard by judges who are not familiar with the FDCPA or credit and collections law and almost always have to side with the collection agencies when they hear these cases.
Is it illegal for a collection agency to rush the account to court prior to the 30 days right to dispute a debt? Technically – no. However; the debtor can respond to the court stating the debt is in dispute and the time allotted of disputing the debt has been taken away by the collection agency.
If you were served to appear in court regarding an unpaid debt either:
- Within the 30 days of receiving the dunning notice stating you have the right to dispute the debt or
- You never received the Dunning notice
- File a response to both the collection agency and the summons.
File an answer to the summons you were served in court. In your answer, explain to the court that you have not been given the time allotted to request the validation of debt. Explain why the debt or the portion thereof is disputed. Make sure a copy of the Dunning Notice is with your answer as evidence when you file the paperwork in court.
Send the collection agency a letter (mailed certified, return receipt requested) explaining why the debt or portion thereof is in dispute. In this letter add a comment stating since the acting collector decided to bypass the Validation Rule and take away the 30 days you are allowed to dispute the debt and filed for suit during this time frame you also filed the dispute in court.
Debtors have 30 days to dispute the debt or any portion thereof. If a debtor is served prior to the 30 days the case could be dropped and thrown out of court.
Fair Debt Coll. Prac. ¶ 1.05[e]
Fair Debt Collection Practices: Federal and State Law and Regulation
Chapter 1. Federal (FDCPA Analysis)
¶ 1.05. Required Conduct and Disclosure
¶ 1.05. The Validation Notice
¶ 1.05[E] SUING DURING THE VALIDATION PERIOD
The Act does not expressly prohibit filing suit during the validation period, nor does the reported case law. Nevertheless, unless it is absolutely necessary so as to avoid loss of collateral or expiration of the statute of limitations, it is a good idea not to do so. If the debtor is served during the validation period, the summons and complaint may cause confusion about the validation rights and thereby create an overshadowing problem. This is especially a problem if the summons requires an answer prior to the expiration of the validation period. It is also possible, however, that the consumer will be sufficiently confused by the validation notice so as to disregard the summons (or vice-versa), and this, too, could be held to be deceptive under the Act.
If the consumer disputes the debt, the attorney will be forbidden from proceeding until he or she verifies the debt. If a suit has been filed and not yet served, a consumer’s dispute would require the attorney to withhold service. If the debt cannot be verified quickly enough, the suit could be dismissed for lack of service. Similarly, the consumer who has been served and then disputes the debt could prevent the collection attorney from prosecuting the suit until verification is sent. Even if suit is technically permitted during the validation period, the potential for problems makes it hard to justify taking chances until and unless the appellate courts rule directly on point.
At the end of the day it is up to the judge to do the right thing or the wrong thing. By using the above statute when you file your answer, the chances are better that the case will be dropped or at minimum extended out for another date. As a debtor, and a consumer, you have the right to dispute a debt that you legitimately do not owe or is wrong.