You're sueing me for WHAT???
July 19, 2010 3:29 PM   Subscribe

Legal/debt collector woes: I was just served papers saying I am being sued by a debt collector for non-payment of $86. I am fairly certain I have paid this bill in full, but they are refusing to give me any kind of statement or accounting showing I still owe this amount. What can I do??

A few years ago, I found out I had MS. I ended up accruing a considerable amount of medical debt during this time ($8,000- AFTER insurance), but seeing as I can only work part time, I was not able to pay things off in a timely manner and some things went to collections. The debt in question was for a piece of medical equipment for around $400. I finally paid it off in Feb of this year.

We have asked the collection agency twice to furnish some sort of statement showing the activity on this account, but not only have they refused, they hung up on us both times. We have also called the company the money was owed to, and they have not returned my calls (nor can I seem to get ahold of a live person in billing).

We contacted the Washington state Attny Gen office, but they said they can't mediate since there is a pending lawsuit. They also didn't provide any useful information as to what we should do other than file a complaint with their office (which we did, but it changes nothing).

We now have less than 15 days now to pay this or set up a court date. It's not so much about the money (which they have also tacked on some court fees to, bringing it just under $200); I think I am being hustled for money I do not owe. Unfortunately, we moved in March and I can NOT find any of my paperwork regarding this debt ANYWHERE, and I am concerned that it won't turn up in time for me to do anything useful with it.

Can they sue me for money without providing me with anything proving I owe it? Is there anyone I can call? I can't really afford a lawyer, I don't want to go to court, and I am not sure what they are doing is completely legal.
posted by evilcupcakes to Law & Government (15 answers total) 28 users marked this as a favorite
I can NOT find any of my paperwork regarding this debt ANYWHERE

Can you remember who you paid? Maybe that company has a record of your payment. It's possible they sold the debt to a collection agency, and then never informed the collection agency when you paid it.

Or call your bank and ask if they have a copy of the check.
posted by SuperSquirrel at 3:36 PM on July 19, 2010

This should be something that legal aid can help you with, at least in terms of what course to take.
posted by supercres at 3:37 PM on July 19, 2010

I believe you have to ask for proof of the debt in writing. They then have 30 days to provide the information.
posted by elle.jeezy at 3:39 PM on July 19, 2010 [2 favorites]

Best answer: They are required to show you proof of your debt. However, you must request this in writing; it's useless -- if not out-and-out counterproductive -- trying to deal with these people over the phone.
I would suggest something like the following, based on my own (eventually successful!) research/letter-writing campaign earlier in the year disputing a medical charge:
I am writing pursuant to the Fair Debt Collection Practices Act (15 USC 1692g) to inform you that I dispute the alleged debt associated with account no. [Fill in Acct. No.] referenced in your letter [or, if you don't have a letter: "our conversation"] of [date].

I dispute this debt because [brief, factual explanation].

I request that you provide me with the following:

- Copies of all contracts, documents, etc. that form a basis for the alleged debt;
- An accounting showing how you calculated what you allege that I owe; and
- The name and address of the original creditor, if different from the one cited above.

I further request that, in accordance with the Fair Credit Reporting Act (§ 1681s-2), you contact any credit reporting agencies and/or credit bureaus to whom you have reported this alleged debt, and inform them that it is disputed and therefore has not been validated.

Finally, I request that you cease all contact with me except as specifically outlined in this letter. Any further contact should be strictly in conformity with the FDCPA—i.e., limited to providing me with the documentation I have requested, informing me that you have ceased collection efforts on the alleged debt, or stating that you are taking a specific action in relation to the alleged debt. All contact should be made in writing, and should be submitted to my home address by mail.
CC your Attorney General as well as the company to whom you originally owed the money; make sure you send the letter to all of them Certifed Mail with Return Receipt -- you want proof that your letter was received, especially if you need to dispute anything with the credit agencies down the road.
posted by scody at 3:50 PM on July 19, 2010 [418 favorites]

I don't want to go to court

Well then send a check because its your only option at this point if they've commenced a suit. I would call your county clerk of court, ask them about the small claims court procedure. They likely have a packet of information available (perhaps even online) as to how their small claims process works. (small claims courts are often subject to local rules) Consult this information as to how to contest the claim and determine if its worth it to you to do so.

Remember, they have the burden of proof in this matter.
posted by greasy_skillet at 3:54 PM on July 19, 2010 [1 favorite]

Read this and act accordingly.
posted by zizzle at 4:02 PM on July 19, 2010

They can sue you. But to win, they'll have to prove it. Most people just pay rather than fighting, so even if they have no proof that the debt is legitimate, it's a good gamble on their part. As scody said, write them asking for proof of debt, and telling them to contact you in writing.
posted by DaveP at 4:23 PM on July 19, 2010

Oh, and if they actually did file suit, you will have to show up in court or lose by default (unless they withdraw the suit - not sure of Washington's rules on that). But if they can't prove that you didn't pay the debt, or even better, if you can show a cancelled check, you'll be out of there quickly.
posted by DaveP at 4:28 PM on July 19, 2010

Scody has given excellent advice.

Additionally, you probably will not be able to discuss this with the original creditor -- once they turn your debt over to a third party for collection, they aren't allowed to discuss the debt with you any longer. This is part of consumer protections, and ensures that multiple parties aren't trying to collect on the same debt.

There is some more information here at the FTC site for the Fair Debt Collection Practices Act.
posted by dryad at 4:36 PM on July 19, 2010 [2 favorites]

You are correct in feeling like it's basically a shakedown. They're hoping that you either get scared and pay up, or do nothing and then fail to show up for the court date, and they get a default judgement against you. Either outcome works for them (although I'm sure they'd prefer if you just paid).

I'd send them the kind of letter scody outlined, but it's entirely possible that they'll just ignore it and continue down the road of taking you to court. There are debt collectors that do this in volume, just opening up tons of cases against people, most of whom never show up and just result in default judgments. Then they can pursue you from a much stronger position.

What I'd do:
* Send scody's letter. It might not help, but it won't hurt, and you might be able to catch them violating the FDCPA later.
* Search your stuff for anything related to the alleged debt. If you know the payee, call them up and see if they'll send you a statement showing that you have no outstanding balance. If you normally pay bills by check, check your bank statements. (Even if a bank doesn't have check images online, virtually all store images for 7 years; if you can find the check number, you can probably call your bank and get a legal copy for a nominal fee.)
* Then, I'd probably call the Clerk of the court that they are suing you in, if they have actually filed. Maybe there's something you can do about getting a venue change. The rules for this sort of thing vary by state.
* Call legal aid, preferably in the state/county where the suit has been filed. They'll be most familiar with the process there.

Under no circumstances do you want to just blow off the court date and let a default judgement get entered against you. That would be bad, potentially many times more than $81 bad.
posted by Kadin2048 at 4:48 PM on July 19, 2010 [4 favorites]

Response by poster: I plan on going to court if it comes to that, but I would really rather it didn't. I was hoping maybe if I "called their bluff" they'd back off, but it looks like the best I can hope for is going to court and being able to prove them wrong... IF I can prove them wrong. I have to find that paperwork showing showing what I have paid, or at least get a print out from the bank. The problem is, I have been paying on this debt for about 4 years now, and my payments were sporadic at times, some of it was paid to the original company etc. so reconstructing that is a world of chaos I am not looking forward to delving into.
posted by evilcupcakes at 7:08 PM on July 19, 2010

Answer the filed complaint as soon as possible, otherwise the creditor can and will obtain a default judgment against you. In your answer, you would flatly deny all of their allegations or answer them with: "This debt was paid in full" or something similar, whatever fits the allegation.

Once you have answered the complaint, send the creditor's attorney a request for discovery, specifically requesting any documentation regarding the debt and an accounting.

Recently, a client of mine had this same thing happen (it's a growing trend in the debt collection world: creditor files with no proof, hoping that the alleged debtor will default. The creditor wins in several ways: they get paid for a debt that was never owed/paid in full plus paid for attorney's fees, court costs, etc.). When the creditor failed to produce documentation, the court dismissed the matter with prejudice (meaning the creditor couldn't refile later if the paperwork mysteriously showed up).

The creditor won't 'back off' - they have an attorney who gets paid no matter what and, most likely, that attorney is someone who is well-known in the local courthouse. The process will be streamlined in that attorney's favor (meaning that all of that attorney's cases will be heard by the court on the same day and as quickly as possible).

IANYL, standard disclaimers apply.
posted by LOLAttorney2009 at 8:02 PM on July 19, 2010 [3 favorites]

Oh, one more thing: you don't have to prove them wrong - they have the burden of demonstrating that you owe the money. If they fail, and without paperwork, they should fail, then the case should be dismissed/adjudicated in your favor.
posted by LOLAttorney2009 at 8:03 PM on July 19, 2010

Yeah, this is not a situation where you can really call their bluff; I suspect that they are probably more than ready to file papers and take you to court ... they just figure you'll either cave before then or not show up.

I suspect that the collection agency is one of the high-volume lawsuit fiends that have been in the news so much recently. Their M.O. is apparently to buy a whole database of debts and then use software to handle all the paperwork involved in notifying and suing people en masse. Since most people just never show up, they get default judgments (including costs!) and can then use the legal system as a bludgeon to go after your assets with much more success than they could as a standard bill collector. It's entirely possible they don't have any solid documentation of the debt at all, but if you don't show up, it's their word against nobody's so it's immaterial. (And as the icing on the cake, generally if it's under some limit like $500 or $1k you can't even appeal, you're just screwed.)

Maybe they'll drop the thing when you respond to the complaint and send a request for discovery, since they're presumably used to people just not responding to them at all, but I don't think you can safely assume that. I think you need to plan on responding to them and then actually showing up to court. If the venue they're filing in isn't convenient for you, you should see about asking for a change to one where you're living now (although that isn't guaranteed, and depends on jurisdictional rules).

Personally I think the least-stress thing is just to assume that you're going to end up going to small claims over it, and if they buckle first let it be a pleasant surprise. But I am a pessimist and hate disappointment.
posted by Kadin2048 at 10:07 PM on July 19, 2010

They're filing suit over $81? Definitely sounds like a shakedown. Do it the right way - send the letter certified mail, show up at the court date, request evidence of said debt, etc. If / when they don't show or you don't receive anything, let that be a sign.
posted by chrisinseoul at 9:23 AM on July 20, 2010

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