I just saw a fairly recent post from a “The Credit InfoCenter Blog.” It was arrogantly entitled “Now I’m Giving Advice to Consumer Attorneys.” To me, this post highlighted why a consumer ought not to seek legal advice from someone who is not an attorney.
In this person’s post, she suggests that a debt should counter sue a creditor who files a suit without the proper documentation to prove the debt. Here is the problem. The law in this area has already been decided. If you review my previous posts (May 4, 2008 entitled “Attorneys for Debt Buyers beware…they are on to us!), you will see that unless a debtor drafts a lawsuit to allege fraud against the creditor, that such a counterclaim will necessarily fail. After all, the purpose of a trial is to determine who is right. A creditor bears the burden of proving the debt. If the creditor comes to trial without the necessary documents to prove his debt, he does not violate the Fair Debt Collection Practices Act. He merely loses a trial. But….if the creditor has a history of pursuing debtors without having the necessary docs to back up his claim, well then, he may be engaging in a pattern of fraud. Its a subtle but important distinction. Again, I have laid out the 2 major lines of cases in this instance in my May 4, 2008 post.
If the debtor’s counterclaim fails and the court believes that the counterclaim was baseless, the debtor may get hit with sanctions. How angry would the debtor be at having a judgment entered against him for both the balance due on the complaint plus sanctions??!!!
Bottom Line: Please be very careful when reviewing advice from non lawyers. The CreditInfocenter Blog seem to be very well intentioned. However, they should not give advice and further still, ought not to hold themselves out as giving advice to attorneys. You can almost always find a Consumer Rights Lawyer that will spend some time with you for free. Get the right advice from the right people.