Defending Debt Collection Lawsuits

Defending debt collection lawsuits by Birmingham, Alabama attorney Matthew Dunaway

Affirmative Defenses to Foreclosure Lawsuits in Florida

Under Florida law, a homeowner's answer to a foreclosure complaint may include the affirmative defense that the plaintiff lacks legal standing to obtain a judgment of foreclosure.

Because many plaintiffs have no direct relationship with the original lender, they are sometimes unable to produce the original loan and assignment documents that are required of plaintiffs who request judgments of foreclosure. Because many loans were frequently bought and sold by various loan servicers during the past several years, the loan and assignment documents have, in some instances, been misplaced.  This presents an opportunity for homeowners who are trying to stop a foreclosure sale.

The following is an example of how the "standing" defense may be asserted as an affirmative defense in a homeowners answer to foreclosure:

Plaintiff lacks standing to commence this action. My original mortgage was with _______ . This is not the same entity that commenced the instant action. Plaintiff has failed to provide the original, or certified copies of, the note and mortgage and all relevant assignment(s). In Florida, only the owner and holder of the mortgage and the note have standing to commence a foreclosure action.
 
The "legal standing" defense is just one of several affirmative defenses that homeowners should consider when responding to a foreclosure complaint. Other affirmative defenses that a homeowner should consider include; (a) violation of the Truth in Lending Act; (b) Fair Debt Collection Practices Act violations; (c) incorrect notice or service of process; and (d) lost payments.

A homeowner should carefully review the lender's complaint.  Under the Florida Rules of Civil Procedure, a plaintiff seeking a judgment of foreclosure is required to attach a copy of the Note to its complaint.  A  Florida homeowner who is served with a foreclosure complaint without a a copy of the Note should assert this as a defense. This may stop the foreclosure action until the lender can supply a copy of the note. In foreclosure actions, any delay in the proceedings can be beneficial because it gives the homeowner an additional opportunity to find alternatives to foreclosure, including a short sale or loan modification. 

In virtually all circumstances, it is beneficial for a homeowner to file an answer when served with a foreclosure summons and complaint.  Failing to answer a foreclosure complaint may result in the forfeiture of the legal defenses that are described above.

Debt collectors favorite tricks - the threat of lawsuits and other

Of course, the Federal Fair Debt Collection Practices Act (FDCPA) defines the limits within which all bailiffs must remain when it comes to delinquent debtors. But are they really so respectful of the law? This article lists the most common threats that debt collectors can use to talk with you by phone or face to face process. These are the things that are threatening with legal? Read this articleIn order to understand - and choose a perfect tactic to force you.

Statistics on the number of complaints by people who work for collection agencies is overwhelming - in 2004 the 58,000 borrowers facing the Federal Trade Commission (FTC), alleging they were harassed by debt collectors - and unique number keeps growing! He complains of illegal methods of debt collection to maintainone of the first places in the ranking of the FTC - currently 17% of all complaints regarding this problem.

The following list indicates the most common threat used by the agents of abusive debt collection - and said it was true that may be true.

1) The threat to remove the debtor's home if he / she does not make the payment immediately. This threat has nothing to do with reality unless the loan is actually secured by your home (loan or mortgage). Only in thisIf a debt collector may seize the property of their property.

2) The threat to arrest the accused if he / she does not start paying immediately. The first thing you should know about if the creditor always try this technique of intimidation about you is that a delinquent debt is a civil matter, while only a person who commits a crime can be stopped.

3) The threat of continuing calls for presentation of the collection, despite the cessation ofcommunication note sent to the creditor. Federal law provides that a cease communication notice received by the creditor requiring him / her to stop all attempts to contact the debtor. If the creditor does not follow these rules, remember that this activity can be considered a violation of the law.

4) The threat of aggression. Yes, you may be surprised, but some of the collection agents to use debt as well. FTC receives an average of 300 complaints caused by the threat ofviolence against debtors. There is no law that allows tax collectors to resort to such means, so if it happens that the purpose of it, there are those who are advised to bring a lawsuit against the creditors and not the reverse.

Threatens the debtor is not the only method that the debt collection agency may be illegal and abusive use. It is important that you realize that creditors of the assets "could be considered illegal and use this knowledge toprotect themselves. Remember that your debt collection agent is to break the FDCPA if he / she is:

- Share information about your debt with third parties - apart from its neighbors, relatives and employers who may be contacted to obtain all necessary information about you. However, you should know that contacting these people are only allowed if the creditor does not mention anything at all of its debt;

- Called to work, despitenot be allowed to receive personal calls during work hours. However, there are few collectors themselves actually follow this rule - most of them continue to call no matter what. Consider the use of legal protection means that if it happens to you;

- Use profane or vulgar language, raising their voices to call for the collection;

- What is calling you too often, making life reallystressful

- Ignoring the dispute in writing;

- Facilitating access to information of the debtor.

What can be done to combat the attacks of illegal debt collection? The first thing to do as soon as possible to begin the debt collection calls and browsing through the detailed description of the rights of consumers FDCPA. Do this if the calls are intercepted library is not really bad yet. You can get this information from official websiteFederal Trade Commission.

If any of the debt collector your organization is illegal, a formal complaint with the Attorney General and the FTC. In cases where these authorities to receive complaints about the business of a particular creditor or collection agency, fines may be imposed as punishment for their crimes. This will definitely make you think twice before doing it again. Also, there shouldRemember, you have the legal power to file a counterclaim against a collection agent debt abusive or harassing exceptional.

On the other hand, we must remember that all this applies to the collection agencies debt of the party, lawyers and others that creditors may use only. Your creditor's own debt collection department representatives are subject to only some of the rules listed FDCPA. However,Do not forget the protection of consumers of other laws that can help you resist the activities of abusive debt collectors and creditors themselves. Therefore, should not hesitate to file a complaint with your state Attorney General and the FTC, if you believe your lender is bullying. In this case, an abuse of creditors can be found guilty by state law or other act of the FTC.

The fight against illegal attempts to collect the debt can be aWhat is really hard to do - but you must remember that this could have its debt first and easier than you think, so ... Educate yourself!