Should I, could I, countersue?

[smartsue]

I live in Pennsylvania.

I am being sued by the Collections Department of an upscale University here. The case is in compulsory Arbitration Court, and has been continued twice. Half the amount ($15,000) of the suit is in late fees and legal fees.

I filed a formal Answer to the Complaint on April 21st, which finally allowed me to go over the charges with the Collections Manager, but not until August 1st. I had records--a transcript--that showed that the very first charge for tuition was incorrect. She will not change the records until she gets something from the subunit of the University that ordinarily sends in the tuition charge--that's okay.

There is another place in the record where I should have received tuition reductions, as a graduate student instructor, and did not. I have records indicating I did that work; many people at the University can say of course I should have had the tuition reduction. Tomorrow I start trying to get that subunit to post the delayed tuition reduction.

To shorten this, the basic charges are wrong. I entered in 1992; in 1993 I wrote my supervisor that I knew the bill was wrong, that they had sent me one bill, and then for seven months no bill at all, and then no detailed statement. I've got that, owing to a blessed supervisor who saves everything. I found out, on April 21st of this year, that they still had my address as the address of the year I had a fellowship in California, and were sending mailings there.

The first I knew about the lawsuit was the attorney calling and saying "Well, are you going to pay? We're going to court in December. Have your lawyer call me."

In reading the Fair Credit and Debt Collection . . . Act, I realized that I can countersue because the amount for which they are suing me is demonstrably wrong. Also in reading that act, I can only sue for $1000 or an amount that reimburses me for demonstrable harm. What constitutes demonstrable harm? This has been a "good learning experience." Maybe I should pay them?

Well, no. But what is demonstrable harm? Being suicidal? Stress-related illness, if it doesn't cost me lost time on the job? Inability to fulfill professional obligations? Loss of joy in living?

TIA

[smartsue]

State is Pennsylvania.
I used the wrong name for the Act in my previous post. I had just skimmed the text of the act when it was referenced in one of the other posts on this forum. It is as the Title has it: The [URL="http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm"]Fair Debt Collection Practices Act[/URL]; for enforcement, although it is a federal law, apparently one goes to the State Attorney General and the (federal) [URL="http://www.ftc.gov/bcp/conline/pubs/credit/fdc.htm"]Fair Trade Commission[/URL]. That starts tomorrow. My question remains--what sorts of things can I claim as damages?

[Debt Guy]

FDCPA is a strict liability statute. That means the collector either violated the law or did not violate the law. If they violated, they are liable.

FDCPA does not, so far as I know or have ever heard, allow damages for pain and suffering. FDCPA allows $1000 per action. Period. But, you sound educated, so download and read the Act yourself. It is not very long and is pretty easy to read. Either google FDCPA or go to [url]www.ftc.gov[/url]. The FTC site also have some staff opinion letters about various facets of FDCPA.

The law firm may not be subject to the FDCPA. A collection agency is always subject but a law firm is not subject 100% of the time. If the law firm is a "collection law firm" that regularly engages in consumer debt collection, then the FDCPA applies. If the law firm is one that represents the university and occassionally tries to collect, then FDCPA does not apply.

I don't think I have ever seen a definition of a maximum percentage of the firms business that must be collection related in order to be subject to FDCPA. There is probably some case law somewhere.

Personally, I think you are barking up the wrong tree at this point.

It is not illegal to make an accounting error. Clearly, from what you describe, errors were made. So what?

But, once you have pointed out the error, they have a duty to investigate and correct the error as appropriate. You must allow a reasonable amount of time for that to happen. If they fail to make the correction, then there would be grounds for misrepresentation of the character of the debt -- which is a FDCPA violation -- assuming, of course, they are even subject to the FDCPA.

In any event, you must sue them and the burden of proof will be on you. You will have to prove that the amount was wrong and they knew it was wrong but proceeded against you anyway. That is the only way FDCPA can apply. The collector cannot be punished for a bona fide error which was corrected.

There may or may not be state laws that govern other facets of your dispute. You really need a local attorney to address that issue.

I can tell you are frustrated. But, I just don't think you got all the parts and pieces of the puzzle to "get even". Just my opinion and it cost nothing. Good luck.

[smartsue]

Thanks for your considered response, debt guy. I *think* I will have a chance to address the errors at the Arbitration Court Hearing in three weeks. There is one error that has already begun working its way to Collections at the University. We'll see whether they come in with the change, and acknowledge it.
I will be able to demonstrate the error with supporting documents.

The lawyer/lawfirm seems to be particularly related to collections for the University, as the University has its own Office of Legal Counsel, who has the power to recall the law suit--but apparently won't.

I appreciate the chance to use this forum to cool off and identify the real issues that the court will want to address--the pleadings.

Using more energy to raise further issues is not the best idea right now; maybe later.

Thanks again.