FDCPA — when disputing a debt, do you have to prove the debt is not yours?

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FDCPA -- when disputing a debt, do you have to prove the debt is not yours?So you are dealing with a debt collector and you tell the collector that you dispute the debt.

Debt collector says:

You can only dispute the debt if you prove to me that the debt is not yours.

Is this right or wrong?

Wrong.  Let’s chat about this.

You can dispute a debt without providing any proof — you have the right to simply dispute the debt.

I sued a debt collector once who said to my client (before suit) “The burden to prove anything is on you — we assume the debt is legitimate until you can prove it is not.”

That is not the law.

If you dispute the debt –whether you give reasons or not — the debt must be considered by that debt collector to be “disputed.”

Now if you have reasons, that’s great. Include them.

Here’s one reason — it can be hard to prove a negative.

For example, a debt collector says you owe $75 from a magazine order 5 years ago. You know you didn’t order the magazine.

So what do you do?

You can say it isn’t yours which is proof. But hard to show an absence of payments, etc. until you get a lot of information from the debt collector such as:

  • When did I take out this supposed debt?
  • What’s the name of the magazine you claim I subscribed to?
  • When did the company send me invoices?
  • Show me where I signed for this magazine.

My suggestion on the approach to take is to do all of the above but also to simply state the debt is disputed.

Now the debt collector has a choice on what to do next.

“Do I give the consumer all the information above?”

Or

“Do I say NO and tell the consumer I’m not playing games with her and she has to pay?”

Ultimately, if the debt is not owed — or even not owed in the amount claimed — the debt collector has violated the Fair Debt Collection Practices Act (FDCPA) by misrepresenting the debt and collecting an amount the collector is not entitled to collect. These are sections 1692e and 1692f.

In court, the consumer does have to prove this — and the consumer can rely on her own testimony. The difference is in a lawsuit we can force the debt collector to give us every document it has on the account. All electronic data. See if the collector went back to the original creditor to get “proof” or if it did nothing.

Before a lawsuit, however, and before a judge decides who is right, the collector must mark the account as being disputed. It doesn’t get to say “Well, we investigated it and decided the debt is legit so we are not going to mark your account as being in dispute any longer.”

That’s a violation of the FDCPA — section 1692e(8).

Sue debt collectors who lie and say you can’t dispute without proof!

Our simple solution is when these debt collectors lie, sue them.  As often as you can so they get the message to stop breaking the law.

If we can help you think through your options, give us a call at 205-879-2447 or you can contact us here.

Thanks for reading this and have a great day!

John Watts

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