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Subject:  Re: Anyone ever fought a debt lawsuit? Date:  2/22/2012  1:57 PM
Author:  joelcorley Number:  304540 of 312185


vkg wrote, Since the medical procedure was for her ex, wouldn't it be his insurer and not her insurance unless she covered him as a dependent.

Yes, it would.

This actually brings up an interesting point, though I'm not sure if it's useful. It's also probably a technicality, since the debt collector may provide the information regardless of the legal restrictions.

I believe that to prove their case, the debt collector should provide a copy of the original bill and the insurance EOB. At least I believe it would be reasonable to require these pieces of evidence to establish the cost basis for their claim. Certainly as the defendant, I would protest a lack of the evidence of a valid claim on those grounds if it wasn't provided by the collection agency - if I were the step daughter.

However, those items may be off limits under HIPAA disclosure rules. Also given that the ex had separate insurance, the insurer may have always been prohibited from providing the information to the spouse and given that the insurance was separate, the insurer may never have asked for that permission. So long as the ex doesn't give it now, they may not be able to produce this information.

Anyway, that would seem to be an interesting potential consequence of HIPAA in this case - making it legally impossible for the plaintiff to supply the needed information to prove their case, even if their case could otherwise be supported under Colorado law.

Bear in mind that the court might allow redacted versions of this documentation, making this idea pointless. Also, there may be exceptions for cases like this - I've not really looked into cases involving HIPAA before. But it seems difficult for them to supply any of this information without revealing its purpose. But if they supplied it in response to Debt Validation Letter, they probably won't balk at supplying it in court.

Anyway, just a theory. May or may not be valid or useful, since I'm not a lawyer...

Oh. That brings up one more item. Is this a 3rd party collection agency? If so, I believe the FDCPA (Fair Debt Collection Practices Act) still applies.

Has the step daughter sent them a Demand for Validation of Debt Letter? Even if she first learned of the debt when they filed suit, I believe she can still exert her rights under the FDCPA. In this case there might be a few items that could help. The collection agent must:

1. Notify the creditor of their right to dispute the debt. If they didn't do this, I think you can use it as a basis for a motion to halt additional collection efforts - including this litigation.

2. Provide verification of the debt. If a consumer sends a written dispute or request for verification within 30 days of receiving the §1692g notice, then the debt collector must either mail the consumer the requested verification information or cease collection efforts altogether. In theory, sending such a letter could also be used to halt or delay the case.

Also if the collection agent has violated other provisions of the FDCPA, your step daughter may be able to make counter-claims against them. Also, she can file complaints with the FTC and the newly formed Consumer Financial Protection Agency.

If this is still the original creditor, the FDCPA rules generally don't apply so this last part may not be of any use to you or your step daughter. But I thought I'd throw it out there anyway.

Hope that helps,
- Joel
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