FDCPA Claims Against Attorneys
By: Marc A. Rapaport
March 17, 2016
The Fair Debt Collection Practices Act (FDCPA) is a Federal statute enacted by Congress in 1996 to protect consumers against abusive and deceptive practices by debt collectors. The FDCPA is a powerful law that enables consumers to obtain monetary damages against debt collectors who lie, are verbally abusive, or engage in other unscrupulous tactics. Today, it is commonplace for consumers to file claims for damages under the FDCPA against lawyers who represent collection companies.
In Section 802 of the FDCPA, the law vividly summarizes the harms suffered by consumers as a result of abuses that are commonplace in the debt collection industry:
There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.
When the FDCPA was first enacted, there was uncertainty about whether consumers were entitled to seek damages against attorneys for debt collectors. Today, courts across the United States routinely allow consumers to pursue claims (including, in some instances, large class action lawsuits) against lawyers who violate the FDCPA. For example, courts have allowed damages claims against lawyers who file debt collection lawsuits that are already time-barred because the statutes of limitations have passed (in other words, the debt is too old). Similarly, courts have allowed consumers to proceed with claims for damages against lawyers in situations where the lawyers obtained default judgments without having validly served the court papers.
Recently, the Eighth District Court of Appeals in Ohio summarized the legal rules that apply in determining whether a particular attorney qualifies as a "debt collector" and thus can be held liable for conduct that violates the FDCPA. In a decision dated December 10, 2015, in the case of Cawrse v. Melvin Banchek Co., the Ohio Court held that attorneys or law firms are subject to the FDCPA if they "regularly" collect debts as a matter of course for their clients as a substantial part of their law practices.
If you are dealing with a frivolous lawsuit or abusive debt collection tactics on the part of an attorney representing a credit card company, bank or other debt collector, you should carefully consider whether the debt collector's attorney may be liable to you for damages. If you are subjected to abusive debt collection practices, you might be entitled to monetary damages for physical distress, emotional distress, lost wages due to lost productivity at your job, and statutory damages up to $1000.00. Your FDCPA claim against a debt collector may entitle you to an award for monetary damages that is greater than the amount of the alleged debt that the collector is trying to recover from you.