Debt collection survival checklist
In the context of a consumer debt collection lawsuit brought by an original creditor, a third-party debt buyer, or a debt collection agency, I am developing a comprehensive checklist for consumer debtors to use to understand the complaint with which they have been served.
VERIFY
1. Identity and Capacity of the Plaintiff
- Is the plaintiff properly named?
- Does the plaintiff have standing to bring the lawsuit (e.g., proof of assignment if they are a third-party debt buyer)?
- Are there any licensing or registration requirements the plaintiff must meet (e.g., as a debt buyer or collection agency under state law)?
2. Subject Matter Jurisdiction
- Does the court have the authority to hear this type of case (e.g., state vs. federal court, monetary limits in small claims)?
3. Personal Jurisdiction Over Defendant
- Was the defendant served properly in accordance with applicable rules of civil procedure?
- Does the defendant have sufficient connection to the jurisdiction to justify personal jurisdiction?
4. Venue
- Is the venue appropriate based on the location of the defendant, where the debt was incurred, or other statutory requirements?
IDENTIFY
1. Claims for Relief
- What specific causes of action are alleged (e.g., breach of contract, account stated, unjust enrichment)?
- Are all elements of each cause of action pled sufficiently (e.g., existence of a valid contract, performance, breach, and damages for breach of contract)?
2. Relief Requested
- Is the amount of relief demanded itemized and supported by evidence in the complaint?
- Does the plaintiff request attorney fees, interest, or other costs? If so, is there legal or contractual authority for these?
NOTE
1. Parties and Attorneys
- Full name and contact information for each party and attorney of record.
- Does the attorney represent the plaintiff properly (e.g., is their representation properly disclosed in accordance with procedural rules)?
2. Judge or Magistrate Information
- Note the judge or magistrate assigned to the case.
3. Dates
- Filing date of the complaint.
- Date and manner of service of the summons and complaint.
4. Additional Documents Served
- Were any additional documents served with the complaint (e.g., exhibits, affidavits, account statements)?
RESEARCH
1. Statute of Limitations
- Verify the statute of limitations for each cause of action based on the jurisdiction and facts of the case.
2. Rules of Procedure
- Review applicable court rules (e.g., rules for filing an answer, motion deadlines, affirmative defenses).
- Pay attention to local court rules that may impose additional requirements.
3. Applicable Substantive Law
- Review the substantive law for the claims alleged (e.g., contract law, debt collection regulations).
4. Plaintiff's Burden of Proof
- Understand what evidence the plaintiff is required to produce to prove their claims (e.g., original agreement, chain of title for debt buyers).
5. Fair Debt Collection Practices Act (FDCPA) or State Equivalent
- Research whether the plaintiff’s or their agent’s actions may have violated consumer protection laws.
ADDITIONAL DEFENSE PREPARATION
1. Affirmative Defenses
- Identify any potential affirmative defenses (e.g., payment, statute of limitations, lack of standing).
2. Counterclaims
- Consider whether you have grounds for counterclaims (e.g., FDCPA violations, fraud).
3. Verification of the Debt
- Review the complaint and attached documents to determine whether the debt is verified and supported by admissible evidence.
4. Chain of Title
- For third-party debt buyers, scrutinize the chain of title to ensure the plaintiff has the legal right to collect the debt.
5. Interest Calculations
- Check whether the interest charged is accurate and complies with applicable laws or the original agreement.
6. Attorney Fees and Costs
- Determine if the attorney fees or costs requested are legally justified and reasonable.
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