The author of this post is not an attorney, but is a consulting expert to attorneys and paralegal who has drafted numerous FDCPA-related complaints. If you feel you may have a cause of action that is FDCPA-related, contact an attorney who is well versed in these matters. If you intend to proceed pro se, at least do the research and get it right the first time! Because this is not to be construed as legal advice, despite what you’re reading in this post, understand that the author the post is working on a new book on the FDCPA for good reason … it’s a new counterpunch!
I cannot stress that research is the most important thing that matters when preparing to file any kind of lawsuit. Most homeowners are so pissed off that the first thing they run into court with are fraud claims and these are the most difficult to prove. In light of the fact that servicer fraud and the complicit behavior between servicers and the law firms they retain to steal homes is at an all time high, it becomes necessary to discuss a new and effective countermeasure: the Fair Debt Collection Practices Act (“FDCPA”).
Lazy or Ignorant?
What’s worse, it appears that most foreclosure defense attorneys do not want to employ the use of the FDCPA because it requires going into federal court, a place in which many of them are not familiar with. Federal Rules of Civil Procedure and pleading standards are heightened beyond what are plead in state cases; thus, the lack of desire to approach that level. However, that is where the FDCPA can be your best achievement. Some homeowners are using the FDCPA to build a war chest to fight foreclosures and to scare off the servicers by making them and their law firm lap dogs defendants in an FDCPA action. The more attorneys that come forward with 12(b)(6) motions, the more times I’ve seen the Plaintiff amend the Complaint to include the new attorneys, because after all, they appear to continue to proliferate the fraud upon the Court. Most state-based attorneys wouldn’t want to engage in something where they actually have to “prove” something occurred. After all, that goes against the business model of “getting paid to delay the end result”, which I think many of them believe is the final taking of your property.
Federal judges are smarter than state judges!
At least most of the time. There are a few “appointees” out there that are not fair, have an agenda or are politically motivated to rule certain ways. Fortunately for those living in the 2nd, 9th and 11th federal circuits, which is where a bulk of foreclosures are either pending or have occurred, these respective courts of appeal have properly ruled on FDCPA-related actions. Unfortunately however is the fact that unless the pleadings meet the requisite heightened federal standards, they won’t pass muster, even with the judges that have a proverbial attitude against homeowners.
Strategic planning for an FDCPA action … 5 simple steps:
- The one thing that research has shown us is that if you’re going to do an FDCPA action, stick to FDCPA and nothing more. Don’t plead fraud claims. Don’t plead damage claims and most of all, don’t plead common law claims unless they relate to FDCPA claims (like fraudulent concealment or misrepresentation).
- It doesn’t matter how many FDCPA claims you have, stick to those only. When writing pleadings, I like to draft them like an indictment. Most federal judges understand indictments. If you have a problem understanding what I’m talking about, Google” indictments” and read HOW they are plead. “Structure your complaints like indictments”, is what one attorney (who clerked for a federal judge after getting out of law school, for many years, and knows the system) I work with has stated. Truly, it made it easier for me to “get it”.
- Do the homework required when it comes to statutory citations. Don’t skimp. Here’s where you’re going to have to precede the actual claims with general allegations that tell a story. Attach as many supporting exhibits as you need to. The exhibits should include at least the page that is the one that is clearly misrepresentative (I attach the entire exhibit, including the envelope the exhibit came in). If you don’t tell the whole story, then how do you expect the allegations to reinforce the FDCPA claim itself?
- Study the case outcomes of others in your district who have gone before you. There’s nothing like making bad case law, again. Find out HOW the homeowner (or his attorney) failed to meet the heightened federal pleading standards, especially if you can find where the case was appealed. Look at the strength of the cases that were reversed by the appellate circuit and study WHY they were reversed. Look at all of the issues that were plead. You’d be surprised to find that the simplest of claims that could have been plead, weren’t … and that’s what caused the failure. When you know why cases failed, then you can begin to understand those that were successful. Study BOTH sides of the coin!
- Study 28 U.S.C. … Federal Rules of Civil Procedure, regarding statutory pleadings. Study all of the elements of case presentation. Study the requirements for discovery. Understand what “scheduling orders” mean and are used for. This is where both pro se litigants AND attorneys screw up. If a mandatory settlement or case management conference is required, you had better damned well be paying attention, or you’ll find yourself out of a case or postured to where there’s no turning back, resulting in more bad case law.
Subscribe to PACER if you have to!
If you need to do step-by-step case research, then you may have to subscribe to the PACER system. This is the federal docketing system for each case that has ever come into federal court. You want to be FDCPA specific. If you need instructions to use the PACER System, CLICK HERE: pacer manual. The quicker you can learn how this system works, the better off your understanding will be when it comes to success in researching cases.
There are plenty of successful appellate decisions out there on a wide variety of procedural issues related to FDCPA. Your mission, before proceeding, is to find them and make use of the points that parallel your case. Try NOT to plead outside of your circuit, as the rulings by the appellate circuit in your jurisdiction carry more weight than rulings outside your appellate circuit, which is only persuasive, but still can be effective if you can’t find the goodies you want.
Registration is OPEN for the Quiet Title Workshop in Honolulu!
In other news, registration is open for the Quiet Title Workshop in Honolulu. This is the last DK Consultants LLC-sponsored event in 2016. Visit the Clouded Titles website to sign up (as others already have). We anticipate a packed house for this workshop, since the last two hours are going to be broadcast live over iHeart Radio and the former Governor of Hawaii, John Waihee, will be in attendance along with The Foreclosure Hour host attorney Gary Dubin. There will be attorneys from all over the U.S. attending this workshop, due to the nature and location of it (working vacation). Encourage your attorney to attend if you’re contemplating a quiet title action (it’s called, “increasing your success rate”). Knowledge is power! All attendees receive a free copy of The Quiet Title War Manual!