Debt Collector Threatening to Serve Papers?

HELPLINE

Debt collectors can only inform you that they are filing a lawsuit against you if they actually intend to do so. They may not threaten you with a lawsuit in an attempt to harass, annoy, or abuse you.

Is it legal for debt collectors to threaten you with a lawsuit?

If you are receiving threats of a lawsuit from a debt collector, you should be aware that, in order to actually sue you, the debt collection agency must serve you with papers. This is called notice of their claim. A debt collector could conceivably call you and tell you that they are standing outside the courthouse or are about to file a lawsuit against you unless you pay immediately, but that is probably not actually be the case.

If a debt collector is calling to inform you of their plans to file a lawsuit, they must intend to do so immediately and the statute of limitations must not have passed. The Fair Debt Collection Practices Act (FDCPA) prohibits debt collectors from threatening to “take any action that cannot legally be taken.” This refers to threatening to sue you in order to collect a debt that is past the statute of limitations; such a debt is uncollectible in a court of law. It is important to note that a debt collector can still attempt to collect a time-barred debt, but they may not threaten litigation to collect that debt or make any false representations about the debt.

The FDCPA also forbids a debt collector from taking any action that is “not intended to be taken.” This means that a debt collector can’t threaten to sue a consumer to collect a debt if they do not intend to file suit in the near future.

What have the courts said about debt collectors that threaten consumers with lawsuits?

In an often-cited case, Thinesen vs. JBC Legal Group, a consumer gave a check to Pizza Hut and the check was returned for insufficient funds. Seven years later, a debt collection law firm sent the consumer a letter saying that, if they didn’t pay the original check amount, along with service charges, interest, and attorney fees, the law firm would file suit. The consumer’s attorneys successfully argued that threatening litigation on a time-barred debt and threatening legal action to recover fees that couldn’t legally be recovered were violations of the FDCPA.

If a debt collector simply states that they may take legal action to collect a debt, but does not suggest in any way that such action is imminent, a court is likely to find that the statement is not a threat of imminent, immediate, or urgent action. In Gostony vs. Diem Corp., a consumer moved out of their rental apartment and a debt collection law firm sent a letter demanding payment for move-out charges. The letter suggested that the consumer consult with an attorney or contact the firm’s office to settle the account. It then said that failure to do so would subject the consumer to further actions that could include having a lawsuit filed. The judge in that case ruled that this was not an FDCPA violation because the letter didn’t include any deadlines.

However, when a debt collector tells you they have a right to sue you or they may be forced to sue you, the court may find this language to constitute an immediate threat. This was the case in Russey vs. Rankin, in which the consumer had a credit card debt and the creditor’s debt collection attorney sent a letter to the consumer demanding that they send payment within five days. The letter went on to say that, although the consumer had 30 days to dispute the debt, the creditor had a right to file a lawsuit within that 30-day period. Similarly, Rosa vs. Gaynor also pertained to a credit card debt about which the consumer received a letter saying that the creditor’s law firm “may be forced to proceed with a lawsuit” unless the consumer disputed the validity of the debt within 30 days.

If a debt collector is threatening a lawsuit just to scare and harass you and they do not actually intend to sue you immediately, or if the statute of limitations to file a lawsuit to collect your debt has passed, the debt collector’s threats to file a lawsuit against you violate the FDCPA.

How can I stop a debt collector from harassing me about filing a lawsuit?

If you’re experiencing harassing calls and threats of a lawsuit from a debt collector, you should send the debt collector a cease and desist letter informing them that they are in violation of the FDCPA. Once you have done so, a debt collector may only contact you to inform you that they are ceasing communication with you or are actually filing a lawsuit against you. Remember that if they do not really intend to sue you immediately, then their threat to file a lawsuit is against federal law.

Sometimes it can be difficult to discern whether a threat of a lawsuit from a debt collector is legitimate or simply a collection tactic. If you are experiencing multiple litigation threats or are unsure if the threat is legitimate, you should seek the advice of a debt collection harassment lawyer. Lemberg Law’s team has helped countless consumers assert their rights and protect their interests when dealing with threatening debt collectors. Submit our online form or contact us at 844-685-9200 ☎ NOW for a consultation.

Citations

Thinesen vs. JBC Legal Group, P.C., 2005 WL 2346991 (D. Minn. Sept. 26, 2005)
Gostony vs. Diem Corp., 320 F. Supp. 2d 932
Russey vs. Rankin, 911 F. Supp. 1449, 1454 (D.N.M. 1995)
Rosa vs. Gaynor, 784 F. Supp. 1, 2, 4-5 (D.Conn. 1989)

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