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Can FDCPA be used as an Affirmative Defense


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What if the contract itself sets up a violation? The contract in dispute has a clause that says: "Guarantor waives notice of acceptance of this Guaranty, protest and notice of dishonor or of default." I read that to mean, they believed themselves to be exempt from having to send notice of default, and I am somehow giving up my right to protest. However, the FDCPA gives me such rights.... can't this be used in my defense?

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Hi IHeart and USC. Please know I am not stating a definite opinion here, but rather asking a question and trying to flesh out an idea. The contract claims they don't have to provide notice of default. Nice of them to say they don't have to comply with the law. The FDCPA, as I understand it, says the attorney had to provide notice per the statute within 5 days of making contact with me. They failed to do that. I know I can counterclaim, but why not use this as an Affirmative Defense, and also raise the issue that the OC attempted to avoid the application of the statute in their contract. My logic, taken one step further is, "Your Honor, proper notice by the FDCPA may have led to a productive discussion and settlement of this without the need for another lawsuit filed in a clogged court system and your crowded docket..."

Edited by Determined2
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Hi IHeart and USC. Please know I am not stating a definite opinion here, but rather asking a question and trying to flesh out an idea. The contract claims they don't have to provide notice of default. Nice of them to say they don't have to comply with the law. The FDCPA, as I understand it, says the attorney had to provide notice per the statute within 5 days of making contact with me. They failed to do that. I know I can counterclaim, but why not use this as an Affirmative Defense, and also raise the issue that the OC attempted to avoid the application of the statute in their contract. My logic, taken one step further is, "Your Honor, proper notice by the FDCPA may have led to a productive discussion and settlement of this without the need for another lawsuit filed in a clogged court system and your crowded docket..."

I try to sit in on civil cases once a week if I can. Please don't do the above. It will not work. The judge may get a warm feeling in their tummy when they see a pro se litigant taking this seriously.... but that warm feeling could well be indigestion.

Although, you should COUNTERCLAIM citing the FDCPA, provided that you have been sued by a junk debt buyer or collection agency.

If the entity suing you is the Original Creditor, the FDCPA does NOT apply to them if they are suing you to collect a debt, no matter how badly you think they violated it. The Fair Debt Collection Practices Act applies primarily to debt collectors and third-parties who are making collection efforts against you.

Your answer should probably assert any number of the below:

* I do not owe this debt

* I was not properly served

* Attack Standing - Out of Statute

* This is the result of fraud

* Attack Standing - This JDB has no right to collect this debt because there is no proof this debt collector owns the debt

* Attack Standing - The JDB has not included enough evidence in the court filing to conclusively prove that this debt in fact belongs to me.

There are probably other good points to cover when you file your answer, but the above is enough to get you started.

When you Counterclaim, this is where you bring a complaint against your opposition for all the crummy things they're doing. If it's a JDB, then here's where you would bring it up.

Get a copy of your credit report now. You may well have a FCRA complaint against them, but you never know until you look at your credit report. to sue under the FCRA, you need to dispute with the bureaus first, then follow up.

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The FDCPA, as I understand it, says the attorney had to provide notice per the statute within 5 days of making contact with me. They failed to do that. I know I can counterclaim...

The problem is, that while the attorney is subject to the FDCPA, they are not the plaintiff. Any claims you have against the attorney would need to be brought as a separate action.

This question has been asked and answered; FDCPA is not an affirmative defense.

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Can I use the FDCPA as an Affirmative Defense in a civil consumer debt lawsuit? I've read up on how I can use FDCPA in a Counterclaim, but have received conflicting info on using this law in my defense. Thanks for your feedback!

"[W]hile the statute provides a shield to debtors to eliminate abusive, deceptive, and unfair debt collection practices by debt collectors, 15 U.S.C. § 1692(a), the FDCPA was not intended to be used by debtors as a sword to attack the merits of an underlying action, . . ." Cunningham v. Dovenmuehle Mortg., Inc. (In re Cunningham), 2008 Bankr. LEXIS 2724 (Bankr. N.D. Tex. Apr. 9, 2008).

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If this is a credit card suit, the "contract" is a cardholder agreement, not a real contract. They attach this garbage to a statement and hope you don't read it. (nobody does) It contains all kinds of goodies.....you probably gave up every right known to man, and agreed to be bound to the laws of a different state, probably South Dakota, Delaware, Utah, or one of the other places where consumer rights and interest rate limits are nonexistent.

If this is your tack, then attack the validity of this so called contract. Lheart and I disagree about this, read some of our posts. It is a bit off the beaten path of common defenses (there aren't many) but that's just me. I look for a crack in their armor and try to pry it open.

The only affirmative defense that remotely matches what you are talking about is waiver. That means the relinquishment of a known right. Not a strong one, but it would be better than looking like a first class A-hole by asserting a federal statute as a special defense.

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Legaleagle, the end of your reply was inappropriate. I was simply trying to flesh out an idea. The attorney in my case relies upon the FDCPA in their suit, and specifically states they complied with the statute (when they didn't). My issues in numerous aspects of my answer has to do with the conduct of the OC lawyer's behavior.

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The response was not intended as an insult, it was intended to show you what the court will think of you if you pursue this. The proper defense against a claim in the complaint you feel is incorrect is simply to deny it and let them try to prove it in court. You still didn't tell us what kind of debt this is. Did you actually sign a physical contract for something, like a car loan? Was this a credit card debt? If so, the contract angle is almost useless unless they bring suit under breach of contract only, even then it gets tricky. Attorney conduct is self governed. The bar association determines any discipline unless the action is criminal. These are VERY hard to pursue. You would have to determine what part of the statute the attorney claims to have complied with. Maybe he did comply in part, but he will argue your part to the extent that the ageement you mentioned waves the right. That is not misconduct. It may be a stretch of the law, but it does not rise to the level of a bar complaint. What else did he do?

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