Re: Sueing during the validation process

Posted by lawguy (68.119.155.69) on February 15, 2003 at 15:31:28:

In Reply to: Re: Sueing during the validation process posted by Dr.Entropy on February 15, 2003 at 00:38:20:

The FDCPA, and any other act of Congress, cannot regulate procedural matters in state courts. That is clearly for the individual states, through their legislatures and courts, to regulate.

Congress cannot enact a law dictating what is needed to prove something in a state court. (Unless it is a purely federal issue that might somehow end up in state court.)

Proving a debt in a state court requires only that the creditor prove that the debtor owes a debt to the creditor that is unpaid, and the amount of that debt with a reasonable degree of certainty. These things need to be proved by a preponderance of the evidence. I.e. It must be "more likely than not" or "51% likely or more."

They can use ANY relevant evidence that is admissable under that state's Rules of Evidence.

This can include calling the debtor to the witness stand and asking them point black "Do you owe us this debt" and "How much do you owe on the debt." That is relevant, admissable evidence. Although most attorneys would want more evidence than that, as the debtor can always lie on the stand. (It would be perjury to do so, but proving perjury would require proof of the debt to begin with.)

The FDCPA has nothing to do with any of that. It only regulates the collection of debts, not litigation in state courts.

And if the issue ever got to an appellate court, I would highly doubt that any court would find that pursuing litigation on a valid claim would be a violation of the FDCPA. Even given that previous court decision (since that issue wasn't specifically raised, it hasn't been ruled on yet.) There would be serious constitutional ramifications if a court found that pursuing a valid claim through a state court system can be punished by an act of Congress.

Where the FDCPA speaks of "proof of the debt or judgment," they are referring to any previous judgments upon which the debt collector is attempting to collect.

BTW, not paying on a valid judgment can be punishable by contempt of court. Even if all the statutory time limits for collecting a judgment has run out, not paying on an issued judgment is an violation of a court order. Its rare for this to be done, but I have seen it before.

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