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Creditor Lawsuits Creditor Lawsuits

Before a Lawsuit Is Filed

FDCPA Violations

As you learned in the Debt Relief section, FDCPA violations are a much more likely occurrence and therefore a much better source of affirmative defenses against a creditor lawsuit.

For example, if a debt collector failed to respond appropriately to a verification and validation request, this is a great affirmative defense! The FDCPA states that ALL collection activities—including lawsuits—must stop until proper verification and validation has occurred. Since the language of what constitutes "proper verification" is somewhat ambiguous, you can usually assert that proper verification never occurred.

If you have been diligent in keeping a call log and documenting FDCPA violations, this log (along with any admissible telephone recordings you have) might also serve as a great affirmative defense.

It is important to note, however, that FBCA and FDCPA violations are violations of federal laws. Creditor lawsuits are civil actions. The difference is that civil courts don't have subject matter jurisdiction when it comes to federal laws. In other words, a civil court can't rule on federal issues, and federal courts can't rule on civil matters.

However, if a federal suit is filed before a judgment is handed down in a related civil action, the federal suit trumps the civil suit. Therefore, having documented FDCPA violations puts you in a powerful offensive position. The threat of a federal suit—or an actual pending suit filed before or during a civil action—can be a great way to get a creditor to back down or settle!

The last defensive strategy is to make sure you respond to the lawsuit in a timely and appropriate manner. Getting this first critical step wrong will give the creditors exactly what they want and expect—a quick and easy judgment against you.

So let's say you receive a creditor lawsuit. What next?

> If a Lawsuit Is Filed

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