Using the FDCPA in a Foreclosure Lawsuit Defense

The Fair Debt Collection Practices Act (FDCPA) is a federal law that is designed to protect consumers of credit from predatory actions of debt collectors which are pursuing a debt. It provides various protections for borrowers and puts restrictions and limitations on what actions collection agencies may engage in.

When a lender or law firm violates the Fair Debt Collection Practices Act, homeowners may mention these violations in their foreclosure lawsuit defense. Although the Act may not apply in every situation, many mortgages have been sold to third parties, investors, other lenders, and servicing companies, under the appropriate circumstances, and the law would come into play.

Disclosure notice guidelines, dispute procedures, and even stopping collection calls on a debt are covered by the law. The law also allows credit consumers to initiate lawsuits directly against a debt collector in order to obtain monetary damages for violations of the FDCPA, and it can be surprisingly simple for collectors to violate the Act.

When a mortgage goes into default, the current owner of the loan, however, will not be considered a collection agency when it is pursuing collection on its own debt. It must use its own official business name and must not engage primarily in the business of collecting debts. In the case of the mortgage lending business over the past decade, a large number of loans are transferred to a new owner once they go into default.

The FDCPA applies when a mortgage loan is sold or transferred and another collector begins debt collection attempts in the case of foreclosure. It is important for borrowers to keep in mind, though, that if the lender before the default holds onto the loan, the FDCPA does not apply. But if the bank transfers the loan to another company, the law will apply to the new owner.

Once the lender or servicing company changes after default, though, the new company which purchases the debt counts as a collection agency and falls under the Fair Debt Collection Practices Act. Any law office that the lender hires to pursue the debt or bring the foreclosure paperwork in the county court system must also follow the FDCPA and may be held responsible for any failures.

Homeowners have a number of protections under this law. If they inform the debt collector (or lender or law firm) in writing of their desire not to be called regarding the debt, any further communication is a violation of the Act. As well, lawyer fees that are charged to an account that are not specifically authorized in the original documents is a violation of the Act.

The FDCPA also outlines violations due to harassment, abuse of borrowers, misleading representations, and debt validation, among other provisions. Other rights protected under the Act can be found by reading the Act itself or consulting with an attorney familiar with the law in detail. There are also many websites that go into further detail about this particular federal law.

Each violation of the Act may cause liability on the part of the debt collector for any actual damage suffered by the borrowers, $1,000 per offense, and costs of any action to defend the foreclosure lawsuit, initiate a foreclosure lawsuit, and attorneys fees. In effect, there are numerous ways to violate the law, and many collection agencies do not care enough about it to follow it as outlined.

When fighting back against a foreclosure complaint, homeowners may want to use violations of the FDCPA (and they may be amazingly easy to discover) to offset the judgment the bank is seeking. Violations may be included as counterclaims in answering a complaint. The law firm retained by the mortgage company also counts as a collection agency and may be brought into the lawsuit for its own violations of the Act.