I have filed FDCPA claims as a counterclaim in state court actions. The problem arises (and this Globe article touches upon the problem) when the debtor/defendant has not been properly served. Once the judgment has entered, it can be difficult to get a judgment set aside – since in Massachusetts the decision to set aside largely rests on the discretion of the judge. This can be particularly problematic when you have collection law firms who use a method of “sewar service”, which I wrote about in an April 19, 2006 post.

A Fair Debt Collection Practices Act claim can be raised in a bankruptcy. For example, if the creditor filed a proof of claim for a stale or “re-aged” debt, it would be appropriate to assert a FDCPA claim when attacking the proof of claim. Some courts have held however, that the FDCPA cannot be used in bankruptcy proceedings.

If the debtor is aware of a potential FDCPA and/or FCRA claim prior to filing the petition, it is important to list that fact on Schedule B. Failure to list the claim, will result in those rights being lost.