Consumer Debt Collection Lawsuits: Are They Federal Or State Matters?
When you've been sued or harassed by a debt collection agency or a debt
buyer, a company that purchases debt and generally uses illegal, strong-arm
tactics to collect, it's important to know that you have rights in these
situations. Consumers who have been injured may be able to collect damages
by suing the creditor in either federal or state court.
*Federal vs. state*
While the Fair Debt Collection Practice Act (FDCPA) is a federal law that
protects consumers against the illegal practices of creditors, many states
have adopted their own laws. We asked Steve Recordon, an attorney from San
Diego, California whose firm represents individuals who have been sued or
harassed by debt buyers, to explain when cases are filed in federal vs.
state court. Here's what he told us:
It depends on the type of case, but the answer to that question has an
interesting twist to it. A telephone harassment suit is going to be filed
only in federal court. Why? Well, if you tried to file it in state court,
the debt collector's attorneys are going to remove it to federal court
anyway, so you might as well start there. If it's already resulted in a
lawsuit, the lawsuit is going to be filed in state court. What an attorney
will do is file an answer and a cross-complaint in that case alleging
violations of the federal or state statute.
If a lawsuit is filed in state court, technically, you could just file a
cross-complaint in state court and then walk over to federal court and file
just the FDCPA violation there. So, you have a couple of different strategic
moves and attorneys approach it differently.
*State debt collection laws*
Recordon says that most states have enacted laws that are similar to the
federal FDCPA. They also have a private attorney general provision so that
the debt collector, if he violates the law, has to pay the attorneys' fees
of the debtor. In California, the statute is called the Rosenthal Act; it's
very similar to the Fair Debt Collection Practice Act, but on the state
level.
Here's how it comes into play, according to Recordon, "Let's say a debt
collector files a lawsuit for a credit card in state court. In this
situation, the Rosenthal Act will come into play. So does the federal
statute, but normally, what will happen with the federal statute, if that's
violated, is that it will be prosecuted in the federal courts. So, it gives
both the state and federal courts jurisdiction."
If you've been sued or harassed by a debt buyer / collection agency, contact
an attorney whose practice focuses in this area of the law to discuss your
situation. Consultations are free, without obligation and strictly
confidential. To contact an experienced attorney, please click
here<http://www.freeadvice.com/apforms/debtors.php>.
We may be able to help.
Sursa : Free Advice.com
Foto : caveatemptorblog.com
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