How to Sue a Debt Collector in Eight Steps

Here's an analytical framework for deciding whether or not to sue a debt collector and a few tips on the things you will need to do if you decide to sue it.

If you're being harassed for debt and you want to sue the debt collector, you may want to follow these steps. This isn't intended as legal advice, but rather is one type of analysis you should consider as you make your own choices.

Step One: what is the status of the person harassing you?

Is it a debt collector? Or original creditor? Generally speaking, the original creditor is the person who claims you owe it money because of some transaction that occurred between you and it. For example, a utility company might sue you for unpaid bills. On loans, the term “original creditor” also includes the loan servicer. Debt collectors are companies that either work for the original creditor (but do not have the same owners) or who buy the debt after it is in default (“junk debt buyers”). Again speaking generally, your rights against a debt collector are much more extensive than against original creditors.

Step Two: what is the action you consider illegal?

Remember that you cannot (successfully) sue someone simply for annoying you. The point of a “civil” (as opposed to criminal) lawsuit is to seek relief for some illegal act or acts. If the action in question, for example, is repeated telephone calls at 9:30 at night, that may well be a violation of the Fair Debt Collection Practices Act (FDCPA), but may not be illegal for the original creditor unless you can find a state law that makes it illegal. On the other hand, a threat to firebomb your home if you do not pay a bill is likely to be illegal regardless for original creditors as well. You can google the action, your state's name, and the word “illegal” and get a feel for whether the action is actually illegal. Or you could do a more systematic search at a nearby legal library.

Step Three: consider legal representation.

Under certain circumstances, this might be step one, but I am assuming a certain self-reliance and a normal reluctance to contact lawyers at the drop of a hat. If it looks like you might have a legal action, though, you should consider obtaining counsel. The FDCPA includes a right to attorney's fees if you defeat a debt collector, and the other state laws, while not always including a right to attorney's fees, might be attractive enough to a lawyer for him or her to take the case on contingency. Lawyers often do want some money up front, though.

 Step Four: do some legal research.

Assuming you're going to do this without hiring a lawyer and that you do feel you have a right to sue, you will now want to do some legal research. If it's an FDCPA case, go to a university or a courthouse near you, find the law library, and look up the FDCPA in one of the law digests. Most or all states have annotated legal digests, and most libraries have these and the annotated federal code. Check out my video on legal research, and do some research on the specific action or actions you're complaining about.

Step Five: choose your jurisdiction.

If you want to sue someone under the FDCPA, you could bring your case in Federal District Court or a State Court. If the action is simply under a state law, you will likely be limited to state court. For various reasons, you might find a state court more friendly, but that is a question beyond the scope of this article. You'll have to consider which court to bring your case in and bring it in an appropriate jurisdiction.

Step Six: draft your complaint or petition.

Again, how to do this is beyond the scope of this article. The Litigation Manual could help with this.

Step Seven: file your petition, obtain or write the summons.

You're either going to have to write, or get the court to issue (depending on local custom and rule) the summons for your case. The court clerk will tell you what you need to know about this. You may have to name the corporation and its agent designated for accepting service in the petition or summons (and you will need to know it for serving the case anyway). You can get these things from the Secretary of State for your State. Either call the secretary of state's office (probably in your state's capital city) or go to its website. Look up the company and get its official legal name (that's who you will sue if you're suing the company) and the person designated as agent for receiving service (that's who will be served the lawsuit by the process server).

Step Eight: serve the lawsuit on the company.

Look up the rules of civil procedure for your jurisdiction or the local rules of your court for who must serve the suit. Usually this will be an adult, non-party to the suit. Some courts require that the suit be served by a sheriff, others require it be done by a private certified process server (call a private detective firm or look up “process server” in the yellow pages). Find the right process server and get the suit served on the registered agent.

You are now suing the debt collector. At this stage, although you are the plaintiff, your suit will be basically the same as if you were the defendant and the debt collector had brought the suit. You can follow the Litigation Manual as to the rest of the case.